The Supreme Court of Appeal (SCA) on Tuesday agreed with an earlier Western Cape High Court judgment that the regulation banning the sale of tobacco products during Covid-19 lockdown was invalid.

The SCA dismissed an appeal by co-operative governance and traditional affairs minister Nkosazana Dlamini-Zuma against the December 20 high court judgment by a full bench.

The SCA also upheld a cross-appeal by farmers, tobacco processors, manufacturers, retailers and consumers and ordered the minister and the president to pay their costs in the high court.

In March 2020, the minister made a series of regulations to contain the spread of Covid-19, including a ban on the sale of tobacco products, e-cigarettes and related products.

In June 2020, British American Tobacco,  JT International SA and consumers of tobacco products launched a court application seeking an order declaring regulation 45, which banned the sale of tobacco products, unconstitutional and invalid.

The matter was heard by a full bench of the court in August 2020 and judgment was reserved.

Later that month, the minister lifted the ban on the sale of tobacco products.

Despite the lifting of the ban, the court passed judgment in December 2020 declaring the regulation inconsistent with the constitution and invalid.

The court ordered each party to pay its own costs.

While the minister and the president appealed against the order, BAT and others cross-appealed against the order on costs.

In its judgment on Tuesday, the SCA said assuming there was a causal link between smoking and the risk of contracting a more severe form of Covid-19, the minister would have had to show that stopping smoking during the tobacco ban would have reversed or  reduced the risk of contracting a severe form of Covid-19.

The SCA said this had not been established as evidence.

As regulation 45 was not necessary to achieve any of the purposes listed in section 27 of the Disaster Management Act, it was invalid.

Section 27 states that in the event of a national disaster the minister may make regulations dealing with steps that may be necessary to prevent the escalation of the disaster or to alleviate, contain and minimise the effects of the disaster.

The SCA said it followed that the decision in Fair Trade Independent Tobacco Association, in which an application to review and set aside regulation 45 was dismissed by a full bench of the high court in Pretoria in June 2020, was incorrect.

“It must be regarded as overruled.”

On the issue of costs, the SCA said the tobacco respondents had raised constitutional issues and had been substantially successful.

It said the Biowatch principle, was applicable in the case.

The principle states that in constitutional litigation between a private party and the state the general rule is that the private party should have its costs paid by the state and if unsuccessful, each party should pay its own costs.

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