Ban on sales of cigarettes was unconstitutional: South Africa Court

The Western Cape High Court in South Africa has ruled that the cigarette sales ban during the countrys hard lockdown period was not necessary or in keeping with the South African Constitution.

British American Tobacco South Africa (BATSA) and others had taken the Department of Cooperative Governance and Traditional Affairs (Cogta), President Cyril Ramaphosa and the National Coronavirus Command Council to court in May over the ban of tobacco product sales.

The three Western Cape High Court judges who presided over the case said Regulation 45, which Cogta Minister Nkosazana Dlamini Zuma relied upon to effect the ban, “cannot and does not withstand constitutional scrutiny”.

They said “The respondents have not shown that regulation 45 was necessary nor that it fulfilled and/or furthered the objectives” of the National Disaster Management Act.

Because of this, the judges ruled the regulation was ultra vires, which means the government acted beyond its powers.

In court, the government had argued that the ban was aimed at reducing the occupation of Intensive Care Unit (ICU) beds by smokers. If people didn’t smoke, they’d likely not get Covid-19 in more severe form, it argued. But BATSA maintained that the government had not justified the ban in law or science.

The judges agreed with BATSA but acknowledged that the government was faced with a novel virus which necessitated urgent implementation of measures to curb its spread and for this reason. The court ruled that each party should pay their own costs because the prohibition on the ban had already been lifted, and because the government was dealing with something completely new and had to act swiftly.

“The respondents were under both a constitutional and moral obligation to act swiftly at a time when very little was known about the Covid-19 pandemic. To mulct them with costs would, in any circumstances, be unjustified,” read the judgment.

In a statement, BATSA said that its view that the tobacco sale ban was “unjustified and unconstitutional” had been vindicated by the high court ruling. “The five-month-ban on tobacco and vapour products sales was ill-considered, unlawful and has worsened the illicit trade in cigarettes and vapour products in the country,” the statement mentioned.

It reiterated the previous calls from the South Africa government, to urgently ratify the World Health Organization (WHO) Illicit Trade Protocol-which would help eradicate the illicit sale of cigarettes. “This is the only way for the country to claw back tax loses resulting from the explosion in illicit trade that occurred during the ban on tobacco and vapour products,” it said.

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