• The Fair Trade Independent Tobacco Association intends to argue in court that Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini-Zuma, does not have the authority to ban the sale of cigarettes. 
• FITA is challenging the legality of the ten-week ban which has caused losses of hundreds of millions of rands for SA's tobacco producers. 
• The state says the sales ban is needed to safeguard SA's health system as smoking leads to more severe cases of Covid-19.

The Fair Trade Independent Tobacco Association is set to argue that Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini-Zuma, has overstepped her powers in banning the sale of cigarettes under the nationwide lockdown, saying she does not have the authority to pick and choose what items be banned as a precautionary measure. 

The court challenge to undo the ten-week ban of the sale of cigarettes and tobacco products is set to take place on Tuesday and Wednesday in the Pretoria High Court.  

The state has argued a sales ban was needed in light of what it says it strong emerging evidence that smoking leads to more severe cases of Covid-19, and the prohibition is necessary to reduce strain on SA's health system.

The sale of cigarettes was banned at the start of the nationwide lockdown in late March. This ban was extended under Level 4, and again under Level 3 of the lockdown.

In its latest responding papers filed on Sunday evening, FITA – whose members include cigarette makers Carnilinx and Gold Leaf Tobacco, says that Disaster Management Act the does not give the minister carte blanche to ban the sale of certain products.

The exception here is alcohol, which is specifically mentioned by name under Regulation 27 in the Act. 

"Plainly, if it were so that the drafters of the Act intended that the sale, dispensing, or transportation of cigarettes should be prohibited such would have been expressly included… as was the case with alcohol," states FITA.

It is set to argue that the minister appears to have interpreted her powers to extend to banning activities which may assist in fighting of Covid-19, rather than purely what is necessary.

The state's case

In papers filed last week, Dlamini-Zuma argues that the court will not have to rule on whether emerging scientific evidence clearly backs the state's case of the ban, "simply whether the literature provides a rational basis for the prohibition".

She cited World Health Organisation reports to bolster her case that smoking leads to more severe Covid-19 infection, adding that she would be submitting supporting affidavits by SA medical fraternity, including the Heart and Strike Foundation of SA.