Second tobacco company takes on government on urgent basis

A second group of cigarette companies is going to court on Tuesday for an urgent application for government to declare that the sale of tobacco products and cigarette is lawful, and that the sale of these be declared an essential service.

They want the regulations that effected the banning of these products to be declared invalid and set aside.

This is the second legal action by tobacco companies following the British American Tobacco (BAT)’s ultimatum to government to reverse the ban on tobacco by Monday or face legal action.

The new application is being made by the Fair Trade Independent Tobacco Association, which represents medium-sized tobacco manufacturers.

The association demands that government lifts its prohibition of tobacco products by striking down the relevant provisions of regulations that allow for the ban.

They also want processed tobacco and cigarettes to be listed in the category of agro-processing goods that are permitted.

In their prepared court papers, the association request the records of the national command council meeting where the decision was made to ban the sale of tobacco and the minutes of the meeting that preceded President Cyril Ramaphosa’s “unequivocal promise” that tobacco would be permitted (which was later reversed).

Among the reasons advanced by the tobacco associations is that are that there is no reason to contend that the prohibition of the sale of cigarettes is related to the combating of the spread of Covid-19 coronavirus.

They point out that section 27 of the disaster management regulations directly affects the freedom previously enjoyed under law by about 11 million smokers in South Africa.

They also argue that the sudden ban affects the health of millions citizens as it has no regard for the far-reaching traumatic effects flowing from the withholding of these products.

They attach an expert opinion of a psychologist on the effects of a sudden nicotine withdrawal. They also point that the prohibition has well recognised negative results in the form of increased illicit trade and significant losses of tax revenues.

They also attach a petition in support of lifting the cigarettes ban with 482 441 signatures.

Their lawyers also say that the initial regulations did not contain an express prohibition of tobacco, despite statements by government ministers to the effect that the sale of tobacco was banned.

They also make much of the government’s U-turn on the issue, saying that smokers took the word of the president and prepared for uplifting of the ban while manufacturers were delighted and prepared accordingly.

“Instead of acting within the extensive powers granted to them, ministers and government officials have exceeded and in some instances, abused, their powers. The principle of proportionality, which is central to the exercise of public power, is absent.”

Most of the criticism over the ban has been directed at Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma, who announced the reversal of the president’s position and gave reasons why.

But on Monday, Ramaphosa came to her defence, arguing that this was a collective decision.

“After careful consideration and discussion, the command council reconsidered its position on tobacco. As a result, the regulations ratified by Cabinet were announced by Minister Dlamini-Zuma. This was a collective decision and the public statement by both myself and the minster were done on behalf of and mandated by the collective I lead,” he wrote in his weekly online letter.

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