Journalist's microphone ignites laughter at court's tobacco hearing

Co-operative governance & traditional affairs minister Nkosazana Dlamini-Zuma butted heads with British American Tobacco SA in the Cape Town high court this week.
Co-operative governance & traditional affairs minister Nkosazana Dlamini-Zuma butted heads with British American Tobacco SA in the Cape Town high court this week.
Image: SIMPHIWE NKWALI

It was not all decorum and legal jargon in the high court this week during British American Tobacco SA’s (Batsa) fight to unban cigarette sales.

On the second day of the bruising legal battle — involving thousands of pages of court papers —  between Batsa and co-operative governance & traditional affairs (Cogta) minister Nkosazana Dlamini-Zuma on Thursday, there was a brief lighter moment.

Judge Thandazwa Ndita, one of the three judges who heard the matter in the high court in Cape Town, was spooked by a microphone placed on their desk by a journalist during a break.

Ndita briefly interrupted Dlamini-Zuma’s counsel, Andrew Breitenbach, after noticing the device, and whispered to Judge Elize Steyn before bursting out laughing.  

“We were just wondering what this was,” she said, igniting a roar of laughter in the courtroom.

Breitenbach asked if the device was ticking.

Steyn replied: “That’s the problem, it is ticking.”

Breitenbach’s sense of humour kicked in: “I am tempted to say as long as there is not smoke coming out of it, it’s OK.”

His quip was greeted with more laughter.  

Batsa and nine other litigants, including farmers, consumers and processors, sued Dlamini-Zuma, President Cyril Ramaphosa and the national coronavirus command council over the ban on cigarette sales. Dlamini-Zuma and Ramaphosa defended the decision.

Judges Ndita, Steyn and Hayley Slingers reserved judgment.

In a statement on Friday, the tobacco giant said it was “hopeful of a swift end to the failed tobacco ban”.

John Moloto, Batsa’s head of external affairs, said: “We look forward to a swift end to this excessive, unconstitutional and unworkable prohibition, which is impoverishing decent citizens, enriching criminals and destroying jobs and livelihoods.”

Moloto said the litigants were forced to take the legal route after “numerous attempts to engage the government on the reason for the ban, and possible alternatives were rebuffed”.

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He said: “Batsa has demonstrated that the government’s ban is not justified in either law or science, and would result in freeing up only 16 [intensive care] beds — less than 0.5% of a national total of more than 3,300 — based on the government’s own ‘best case’ scenario figures.

“Meanwhile the ban, which has been in force for 132 days, has cost more than R4.5bn in lost excise tax revenue, put 300,000 jobs at risk and forced smokers to buy unregulated products from the underground market at exorbitant prices.”

Moloto said the latest research by experts at the University of Cape Town (UCT) found that 93% of smokers are able to buy illegal cigarettes despite the ban.

“Consumers are having to pay prices on average more than three times higher than before lockdown, generating huge profits for syndicates from organised crime who become more deeply entrenched by the day,” said Moloto.

“Even more concerning, the UCT research shows high prices have led to five times as many smokers now regularly sharing single cigarettes, thereby helping to spread the coronavirus and defeating the stated objective of the ban.

“This has been a long and extremely frustrating battle for all of us, and we’d like to express our appreciation for the overwhelming support we’ve received from our consumers, some of whom were with us in court this week.”

In court papers, Dlamini-Zuma said the ban was meant to protect lives.

“The overarching reasons for the decision to continue prohibiting the sale of tobacco products for domestic consumption in alert level 3 are to protect human life and health, and to reduce the potential strain on the health-care system, particularly given the predicted steep rise in the rate of infections by the novel coronavirus (SARS-CoV-2) following the lifting of the level 4 restrictions on work and the movement of people necessary to restart the economy,” she said.

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