The government says the Pretoria High Court was correct to dismiss the Fair Trade Independent Tobacco Association (FITA)’s application as well as its application for leave to appeal.

This is contained in the government’s answering affidavit to FITA’s application for leave to appeal the High Court’s judgment which upheld the government’s decision to ban the sale of tobacco products under lockdown regulations.

The legal tussle between the government and FITA continues. In papers before the Supreme Court of Appeal (SCA), the government says the ban was shown to be necessary based on facts and that there was no executive overreach.

FITA has criticised the banning of the sale of cigarettes and tobacco products under the nationwide lockdown. It says government’s arguments based on health hazards associated with tobacco use or smoking, are misguided.

According to FITA, such health hazards cannot justify the ban on cigarettes and tobacco product sales. Legal expert, Lebohang Mokhele, says the SCA will take into account what has been argued by both parties in their affidavits.

“But in this instance, the government would or the President would file. Then they are granted the opportunity to respond to any allegations which they feel will be for the court to take into account from what has been in the answering affidavit which will be filed by the President.”

FITA has until August 11 to file a replying affidavit, before the SCA makes a decision on the application.

The ban, FITA says, affects the health and welfare of more than 11 million smokers in the country, and that it continues to have far-reaching traumatic effects on smokers.

It argues that the ban has already had an enormous commercial impact on tobacco manufacturers and retailers. Accordingly, this has resulted in the illicit trade of cigarettes, which led to significant losses of tax revenue.

Judgment reserved in BATSA case 

Earlier, the Cape  Town High Court reserved judgment in the British American Tobacco South Africa (BATSA) application to challenge government’s ban on the sale of cigarettes.

BATSA argued that the ban is not based on scientific evidence and that it’s unconstitutional. Government lawyers told the court the ban is needed to prevent smokers, who contract COVID-19, from developing a more severe form of the disease.