Ban of tobacco during hard lockdown illegal, rules the SCA

The ban on cigarette sales during the height of the Covid-19 pandemic was never necessary, the Supreme Court of Appeal (SCA) in Bloemfontein has ruled, stating that smokers continued to light it up despite the ban.

The SCA dismissed Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma’s application to reverse the ruling of the Western Cape High Court that the ban of tobacco was unfitting during the Covid-19 lockdown level five in 2020.

“There is no evidence that quitting smoking in the short term has clinical significance for Covid-19 severity and outcomes,” ruled judge Ashton Schippers on Tuesday.

“Regulation 45 [exports] did not reduce the number of smokers, 90% of them continued to smoke, and the claim that the number of smokers had been reduced was based on illegality: a reduction in smoking would have occurred because smokers would not have been able to afford the prices of cigarettes on the black market.

“The state could have achieved the same outcome by imposing a temporary increase in excise duty on cigarettes.”

According to Schippers, Dlamini-Zuma failed to prove in her appeal that smokers are the cause of high intensive care unit admission rates, the high need for ventilators, and the high death rate compared with non-smokers.

“The claim that smoking increased the behavioural risks associated with Covid-19, because smokers share lit cigarettes and do not observe social-distancing measures, was also not established.

“This concern could have been addressed by measures other than an absolute ban on the sale of cigarettes. Regulation 45 did not prevent smokers from sharing lit cigarettes, since 90% of them continued smoking during the lockdown.”

British American Tobacco South Africa, the respondents in Dlamini-Zuma’s appeal, successfully contested the ban of tobacco in 2020 and it was ruled unconstitutional and invalid in December of the same year. Dlamini-Zuma approached the SCA to appeal the ruling.

Schippers said: “The minister contended [in her appeal] that the reasons for Regulation 45 were to protect human life and health and reduce the potential strain on the health system, and that the medical evidence at the relevant time showed that the use of tobacco products increased the risk of developing a more severe form of Covid-19.”

He said the minister was asked to show how the benefits of the ban exceeded the harm it caused, and she failed. Schippers further said the “lack of factual and scientific evidence” limited the rights to “dignity, bodily and psychological integrity, freedom of trade and property”.

The ban also infringed the right to freedom of trade, making it difficult for farmers to sell because people were not buying their tobacco, he added.

“Tobacconists were unable to trade. Farmers were unable to use their farms productively, and manufacturers, their costly factories and equipment. This was an unlawful infringement of the right to property.

“However, there was no infringement of the right to privacy because Regulation 45 did not limit the intimate personal sphere of life of any individual.”

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