Smokers in South Africa are anxiously waiting for the High Court in Pretoria to deliver judgment in the Fair Trade Independent Tobacco Association (FITA) case against a ban on the sale of tobacco products. FITA took the government to court saying Regulation 27 of the Disaster Management Act was irrational and its impact on people’s lives was not considered. A full bench of judges reserved judgment in the matter.

Advocate Arnold Subel, for FITA, called the ban on tobacco sales irrational, draconian and an act of cruelty.

“We’ve termed it a draconian prohibition. A ban of this nature is probably the most dramatic of any measure that can be taken. It is difficult to think of anything more dramatic. Shutting down an entire industry causes enormous harm.”

He says the ban is affecting the most vulnerable in society.

“The poorest of the poor are the ones suffering the most because instead of spending money on hygiene and sanitation, improving the quality of life and buying food they will be paying black market prices now for these banned substances. That’s the world we’ve been driven into now and when spaza shops keep begging ‘please relax it because it’s destroying our businesses,’ it falls on deaf ears.”

Subel told the court that Co-operative Governance and Traditional Affairs Minister Dr Nkosazana Dlamin-Zuma seems to be determined to keep the ban in place despite a lack of scientific evidence to prove that smoking increases the severity of COVID-19.

“There have been studies in many countries that have been inconclusive. If you don’t know then you don’t have a basis to prohibit. If you don’t know you can’t do it on Section 27 and on what informed basis can you say it is necessary to impose the prohibition? It is new territory, but that is what they say. There is currently insufficient information to confirm any link between tobacco/nicotine in the prohibition or treatment of COVID-19.”

Advocate Marumo Moerane, arguing on behalf of Minister Dlamini-Zuma, said his client acted in accordance with the powers that the Disaster Management Act gave her.

“The state has a duty to take steps to prevent the spread of this disease and to reduce the burden on the health system. The minister is, therefore, constitutionally required to take decisions concerning lockdown regulations with this duty at the forefront of her mind. If the minister were to wait for such definitive proof, she would almost certainly be in breach of her constitutional obligation to promote and protect healthcare as she would have failed to be sufficiently active in preventing the risk to the public from materialising.”

Moerane also said there was sufficient evidence to support Dlamini-Zuma’s decision.

“According to the evidence of those more qualified than FITA or lawyers, the evidence is clear that smokers are at heightened risk or developing a more severe form of COVID-19. FITA says it is common cause that the evidence is inconclusive but we submit that is incorrect. Emerging medical literature indicates that smokers are more likely to develop a more severe form of COVID-19.”

He said the ban did not infringe on smokers’ rights as it was temporary.

Judge Dunstin Mlambo said a full bench would consider the submissions made to them and email their judgment to the two parties. He assured the parties that they considered the matter to be urgent.

Below are today’s court proceedings: