Government to appeal court ruling that tobacco ban was unconstitutional
The government will appeal the Western Cape High Court judgment that the ban on the trade of tobacco products during the hard lockdown — aimed at curbing the spread of Covid-19 — was unnecessary.
The case was brought to court by tobacco traders, including British American Tobacco SA (Batsa), after the sale of tobacco products were banned during the hard lockdown. The sale of tobacco products was allowed again only in mid-August when the country moved to level 2 of the lockdown.
The case was heard in August after the restrictions on the sale of tobacco products was lifted, and judgment was delivered in December.
In the judgment, the court found that Regulation 45 — which Dlamini-Zuma used to effect the ban — could not stand up to constitutional scrutiny, was unnecessary and would not serve objectives set out in Section 27 of the Disaster Management Act.
The court also found Regulation 45 limited the smokers' and vapers' rights to human dignity because it denied them the choice of buying tobacco products and in so doing affected their their autonomy to choose whether to consume such products.
In court papers, minister of co-operative governance and traditional affairs Nkosazana Dlamini-Zuma and President Cyril Ramaphosa will petition the Supreme Court of Appeal to overturn the judgment.
The government stated that the court erred in finding that a different but similar case involving the Fair Trade Independent Tobacco Association (Fita) judgment, which was dismissed on grounds that tobacco products were not essential, was not binding to it.
Among 13 grounds for the appeal was that, according to Ramaphosa and Dlamini-Zuma, the court “was not consistent in its approach to expert evidence”.
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