The possibility of seeking reparations from government has not been ruled out.
The ban on alcohol and tobacco products may have been lifted, but the court cases challenging them aren’t disappearing just yet. For the past five months, players from both industries have spent millions on court battles in an attempt to force government to relax the strict measures meant to ease their response to the Covid-19 pandemic, and at least one of them intends to push through on its challenge, despite the lifting of the bans.
Alcohol sales were prohibited to reduce pressure on hospitals, where doctors were having to focus on road accidents and other booze-related injuries in emergency wards, while Covid-19 cases mounted.
Alcohol sales were temporarily allowed again in June, leading to a spike in hospitalisations, and a swift rebanning when cases began to spike.
So, understandably the country’s smokers and drinkers celebrated when President Cyril Ramaphosa announced that “restrictions on the sale of tobacco will be lifted, the suspension of the sale of alcohol will be lifted subject to certain restrictions”, on Saturday night.
This means that both cigarettes and liquor will be back on the shelves after midnight today, but that doesn’t mean the court challenges against the bans on both industries’ products will simply disappear.
The tobacco ban proved much more difficult to justify than that of booze, as these products were restricted ostensibly because of the health impacts of smoking, as well as the risk of infection between people sharing cigarettes.
Tobacco product manufacturers, however, questioned the science on which the ban was based, saying smoking damage would only be evident after long-term use, thus a short-term ban served no purpose. They also questioned the rationale of arguments around sharing, saying the shortage and high price of black market cigarettes made it more likely smokers would share. British American Tobacco’s (Batsa) court challenge of the ban hinged on its supposed unconstitutionality, and they told the Western Cape High Court the harm caused by the ban far outweighed the benefits to the public health system.
Batsa advocate Alfred Cockrell told the court the ban violated the rights of consumers and the right to free trade, questioning the argument that smoking could result in a severe form of Covid-19.
Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma’s advocate Karrisha Pillay had pointed to studies showing smokers’ increased risk of contracting respiratory diseases, including warnings from the World Health Organisation (WHO).
Cockrell did not buy these arguments, saying: “Nowhere in this document does the WHO say, ‘we recommend that government prohibit the sale of cigarettes’.”
In a separate case, the Fair Trade Independent Tobacco Association (Fita) argued the ban was harming both the industry and individuals, and the reasoning behind it was irrational.
The court ruled against them, saying Fita’s argument that tobacco products be considered necessary due to the negative effects the ban was having on those dependent on them was without merit.
It also found Fita had ignored the context of the ban, which was that swift action was required by government in the midst of an international pandemic.
On Friday, the Supreme Court of Appeals (SCA) granted Fita access to appeal the ban on cigarette sales directly.
In response to Fita’s application, Dlamini-Zuma slammed the organisation in her papers, and accused cigarette industry players of being motivated purely by financial interests.
Shortly after the lifting of the ban was announced on Saturday night, Fita chairperson Sinenhlanhla Mnguni told the SABC their legal challenge would continue.
Mnguni said it was necessary to continue to prevent government from being able to reinstate the tobacco ban should the country returns to a higher alert level.
Another reason for their refusal to drop the case is the costs aspect. In the decision to grant Fita leave to appeal, the SCA temporarily set aside the costs order against them. Should they not continue the costs order will be reinstated, leaving them liable for millions in legal fees.
Fita has also not dismissed the possibility of seeking reparations from government, should the courts find the ban was illegal and unfairly prejudiced the sector, leading to the loss of millions in income due to lost sales.
A court date for Fita’s SCA application has not yet been set down. Meanwhile, judgment has been reserved in Batsa’s challenge. –
– The Citizen