The court battle over the continued ban of tobacco products is not over.
Judgement was reserved on Wednesday in the Pretoria High Court in the matter between government and the Fair Trade Independent Tobacco Association.
Cooperative Governance and Traditional Affairs Minister, Nkosazana Dlamini-Zuma’s lawyers argued in court government had acted legally and rationally in instituting the ban.
Forcing South African smokers to give up tobacco "cold turkey" was an act of cruelty on the part of cooperative governance minister
Nkosazana Dlamini-Zuma, counsel for the Fair-Trade Independent Tobacco Association (FITA) told the Pretoria High Court on Wednesday.
Subel said the minister had displayed complete disregard for the enormous emotional and physiological strain imposed on those who smoked in an "already stressful enough" situation created by the coronavirus crisis, and its impact on the lives of citizens.
He added that there was no realistic prospect of people quitting smoking, as confirmed by surveys on the subject, and that this was where the minister's basis for the continued, indefinite ban imposed as part of lockdown regulations came apart.
Unless Dlamini-Zuma could eradicate the habit, she could not achieve her stated aim of preventing the country's health services being overrun by a hypothetical one percent of all smokers presenting with Covid-19 symptoms requiring intensive care treatment.
Dlamini-Zuma would moreover need to satisfy the court that the benefits of giving up smoking materialised fast enough to substantially ease the feared burden on the health care service.
Advocate Marumo Moerane SC, for Dlamini-Zuma, argued that emerging medical literature, and the opinion of those better placed to understand the science than the tobacco industry and the legal fraternity, showed that smoking led to more severe Covid-19 symptoms.
He also said the minister did not need clear proof that continued smoking would cause the collapse of the health system to make a decision.
Subel argued that medical literature was inconclusive and that more peer-reviewed research was needed to conclude. He also noted that the WHO had urged smokers to quit, it had not recommended that nations ban smoking and that Botswana was the only other nation to impose prohibition.
FITA has asked the court to set aside the ban, which has been in place since March 27. It had asked for the minutes of the meeting of the National Coronavirus Command Council where it was decided to retain the ban after President Cyril Ramaphosa announced explicitly on April 23 that it would be lifted one week later.
Dlamini-Zuma opposed that, saying the council was a cabinet structure and therefore its discussions were classified.
Subel noted that some of the literature attached to the minister's court papers as evidence for the Covid-19-related dangers of smoking was only written in mid-May, therefore it could not have informed the extension of the ban, but was used after the fact to justify it.
On the day Dlamini-Zuma announced that the ban would stand, she explained that because the poor rolled and shared cigarettes, smoking could also accelerate the transmission of Covid-19 in townships.
Subel expressed exasperation with the argument, saying the minister failed to credit citizens with much intelligence, and that people were more at risk of infection through raising contaminated cellphones with traces of coronavirus to their faces - yet the government was silent on this patent health concern.
Judgment has been reserved. Judge Dunstan Mlambo, the judge president of Gauteng, said the ruling would be delivered expeditiously, via email to the parties.
Moerane asked that should the court find fault with the government's approach, it gives the minister time to remedy the regulations, rather than strike down the ban. Subel said FITA opposed this.
The cigarette trade ban is also being challenged by British America Tobacco SA in a separate case in the Western Cape High Court, due to be heard in two weeks.
- African News Agency (ANA)
