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The North Gauteng High Court on Friday dismissed the legal challenge by the Fair-Trade Independent Tobacco Association with costs.
A full bench of the court held that FITA had failed to prove that Cooperative Governance Minister Nkosazana Dlamini-Zuma had acted irrationally in prohibiting the sale of cigarettes in regulations governing the state of disaster declared in response to the Covid-19 health crisis.
The judges pointed out that rationality was not the same as reasonableness and stated: "This, in our view is a properly considered rational decision intended to assist the state in complying with its responsibilities of protecting lives and thus curbing the spread of the Covid-19 virus and preventing a strain on the country’s healthcare facilities."
They agreed with Dlamini-Zuma that the test for her decision was that it was procedurally rational and not that it was fair.
"The requirement of rationality is thus not a particularly stringent test and should also not be conflated with the requirement of reasonableness, even in those cases in which a law or the exercise of a public power infringes a fundamental right."
The judges dismissed the argument advanced by senior counsel for the tobacco association that evidence that the ban had not led to widespread smoking cessation, robbed, the measure of a causal link to the stated aim of preventing health services from being overwhelmed by smokers with severe coronavirus symptoms.
Advocate Arnold Subel had told the court that the minister could not show that the ban had achieved the desired effect of preventing people from smoking. Therefore, he argued, the ban becomes untenable because there is no causal link between it and the aim of reducing strain on health facilities.
"There must be a provable reduction on smoking that will achieve the effect the minister wants to achieve here," he said, or her rationale for the ban disintegrated.
In disagreement, the court found though a survey relied upon by the ministry indicated that the vast majority of smokers had still obtained cigarettes despite the three-month-old ban, it suggested that some had given up.
"Although a study conducted by the University of Cape Town ... and relied upon by FITA shows that 90% of smokers had purchased cigarettes during the lockdown, even this report indicates that a percentage of smokers have given up smoking.
"Given the link between the adverse effects of Covid-19 and smoking, it can be said that the objective of containing the virus through imposing the ban on the sale of tobacco products was achieved."
