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The Western Cape Superior Court has ruled that the tobacco ban “cannot withstand constitutional scrutiny.” (Getty)
The Western Cape High Court has ruled that the ban on the sale of tobacco during the country’s strict blockade was neither necessary nor consistent with the South African Constitution.
The tobacco giant, British American Tobacco South Africa (BATSA), took the Department of Cooperative Governance and Traditional Affairs (Cogta) to court in May over a ban on the sale of tobacco products. Although the ban was lifted at the end of August, their arguments had already been heard by the Court, which reserved its sentence until now.
In the ruling on Friday, the three Western Cape Superior Court judges, who presided over the case, said Regulation 45, which Cogta’s Minister Nkosazana Dlamini-Zuma relied on, to carry out the prohibition, “cannot and does not resist constitutional scrutiny.”
“Likewise, we have found that Regulation 45 is not necessary, nor can it be said that it promotes the objectives established in Article 27 (2) of the Law,” the ruling reads.
Regulation 45 establishes that “the sale of tobacco, tobacco products, electronic cigarettes and related products is prohibited, except for export” to curb the spread of Covid-19. Article 27 (2) specifically empowered the minister to issue regulations on the movement of people and goods.
In court, the government had argued that the ban was aimed at reducing the occupancy of intensive care unit (ICU) beds by smokers. If people didn’t smoke, they probably wouldn’t contract Covid-19 in a more severe form, he argued. But BATSA maintained that the government had not justified the ban in law or science.
The judges agreed with BATSA but recognized that the government was facing a new virus that required urgent implementation of measures to curb its spread. And for this reason, the court exempted the government from paying the costs of BATSA.
“Respondents had a constitutional and moral obligation to act quickly at a time when very little was known about the Covid-19 pandemic … Fining them with costs would be, in any circumstance, unjustified,” the ruling reads.
