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The government’s decision to ban the sale of cigarettes during the closure of Covid-19 in the country has been declared unconstitutional.
The Western Cape Superior Court ruled on Friday that regulation 45 of the Disaster Management Act, under which the ban on cigarettes was established, “cannot and does not stand up to constitutional scrutiny.”
The court also ruled that the regulation was not necessary and did not advance the objectives of the legislation.
The ruling was in favor of British American Tobacco and others, in their case against Cooperative Governance Minister Nkosazana Dlamini-Zuma, President Cyril Ramaphosa, and the coronavirus national command council.
The court ruled that each party must pay its own costs because the ban had already been lifted and because the government was grappling with something completely new and therefore had to act quickly even when science and knowledge were developing.
The court heard arguments in the case for two days, on August 5 and 6, when the ruling was reserved.
“Two weeks after the reservation of the sentence, the ban on the sale of tobacco and related products was lifted. The effect of the ban, prima facie, makes the issues raised during the hearing moot and an incompetent verdict, “the ruling reads.
However, due to a number of factors, the court nonetheless decided that it was “in the interest of justice to determine the merits of the case despite the controversy.”
These factors include that:
- the matter was fully discussed for two days:
- the issues raised are “complex and of vital importance, even more so in light of the continuing state of the pandemic and the closure of the coronavirus”;
- Scientific Research on the Link Between Covid-19 and Smoking “Continues”;
- the state of disaster has not yet been lifted and there is “the possibility that in the future the infraction reported in the current matter will be repeated”; and
- the matter is important “not only for the parties in court, but also for the public.”
After weighing the arguments, the court found that the defendants – Dlamini-Zuma, Ramaphosa and the coronavirus national command council – “have not shown that regulation 45 reduced or acted to reduce stress on the healthcare system.”
“Therefore, the respondents have not shown that regulation 45 was necessary or that it met and / or promoted the objectives” of the National Law on Disaster Management.
Because of this, the court rules, the regulation was ultra vires, which essentially means that the government acted beyond its powers.
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