Co-operative Governance and Traditional Affairs Minister Nkosazana Dlamini Zuma, together with president Cyril Ramaphosa, are not backing down from the tobacco fight.
The two have decided to go to the Supreme Court of Appeal to appeal a high court ruling made last year after British American Tobacco (BAT) brought an application to declare the cigarette ban unlawful.
In the 40-page application for leave to appeal, it stated: “The minister’s justification for the regulation was to reduce the incidence of smoking and hence its “real target” was the consumers of tobacco products.”
It added the court had erred in finding the regulation limited smokers and vapers’ rights to human dignity because it denied them the choice of buying tobacco and vaping products during alert level 3. This impacted on their autonomy to choose whether or not to consume such products.
The government banned the use of tobacco sales during the hard lockdown last year. The company approached the Western Cape High Court to overturn the ban. The court ruled last month the tobacco sales ban during the hard lockdown was unconstitutional.
“This finding is irreconcilable with the fact that the regulation does not prohibit the use of tobacco or vaping products, let alone its uses in the privacy of smokers and vapers’ homes, as well as the fact that the regulation imposes a ban on trading in tobacco and vaping products,” the papers said.
They also stated the court erred in finding the regulation infringed on the right to choose the trades of tobacconist and tobacco farmer because tobacconists were not permitted to trade at all and tobacco farmers were unable to sell most of their crops.
“The temporary ban on the sale of tobacco, tobacco products, e-cigarettes and related products does not impact on the choice of the trades or occupations of tobacconist and tobacco farmers. Despite the regulation, persons could still choose those trades or occupations with the reasonable expectation that when the worst of the Covid-19 crisis had passed, they would be able to practise them as fully as ordinarily permitted.”
It is reported that when the sale of tobacco was prohibited, the economy was losing around R36 million per day in tax revenue due to the sale of illicit cigarettes.
Fair-trade Independent Tobacco Association Chairperson Sinenhlanhla Mnguni said: “We feel that this step by government is regrettable given the irreparable harm to the tobacco industry along its value chain which was occasioned by the 5 month-long ban on the sale of cigarettes and tobacco-related products for consumption by the local market. The ban has led to the exponential and unabated growth of the illicit cigarette market, which issue has the knock-on effect of increased losses to the fiscus as less taxes are collected by the receiver.
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