Any benefit achieved by the continued ban on tobacco sales would be outweighed by far by the damage caused, British American Tobacco SA's legal team argued in the Western Cape High Court on Wednesday.

BATSA - South Africa's largest cigarette manufacturer, whose brands include Dunhill, Peter Stuyvesant and Lucky Strike - is challenging the ban. In a  separate challenge, the Fair Trade Tobacco Association has headed to the Supreme Court of Appeal.

'Perverse justification'

Advocate Alfred Cockrell SC said the ban was aimed at reducing the occupation of intensive care unit (ICU) beds by smokers during the Covid-19 pandemic.

However, he argued, based on what Minister of Co-Operative Governance and Traditional Affairs Nkosazana Dlamini-Zuma alleged in her court documents, just 10 – 15% of the country's smokers will likely quit due to the ban because of the high price of illicit cigarettes.

Calling it a "perverse justification", Cockrell said the minister had not at any point said what would be done to stop people from purchasing illicit cigarettes.

He further alleged that based on figures given in the minister’s court documents, Batsa’s legal team made its own calculations and estimated that there would likely only be about 16.4 fewer ICU beds occupied at any given time due to the ban, compared to R38 million lost to the fiscus daily in excise duties. This was without counting job losses across the value chain, he added.

Twofold argument

BATSA's challenge to the ban is twofold. It is arguing that the decision is unconstitutional, and that it is a violation of administrative law.

The constitutional challenge rests on BATSA's view that the ban on sales violates the rights of consumers to make their own decisions, which includes the right to smoke if they so choose; as well as the right to privacy.

Consumers have the right to decide what they do in their own homes, Cockrell said, arguing that nowadays people may even smoke marijuana in their own homes.

He added that the integrity of comsumers to be allowed to smoke to reduce stress levels is also being violated. Even before the pandemic, adults were warned that smoking is harmful, but they were allowed to smoke if they wanted to, Cockrell said.

Cockrell further argued that there was a contradiction in the minister's argument, since she argued that there was no violation of consumer rights due to the ban being directed at tobacco sellers and the rights of smokers were therefore anciliary. But, said Cockrell, the aim of the ban was inherently directed at smokers.

However, he added, the rights of tobacconists were also at stake, as they were being forced to close their shops. The same applied to tobacco farmers, who were struggling to sell their raw tobacco and were unable to manufacture as they could not sell.

The entire tobacco value chain was at risk, Cockrell argued.

The minister has previously argued that tobacco farmers are not forbidden to produce, as they allowed to export.

Cockerell said it is not so easy to set up export markets as most tobacco produced in SA is for the domestic market.

Medical dispute

Cockrell called into question government's medical basis for the ban, saying that while there was no question that smoking is harmful to health, the core question is whether there is an association between smoking and the contraction of a more severe form of Covid-19.

According to Cockrell, there is a medical dispute regarding this.

While Dlamini-Zuma has based her argument on medical literature, including a paper from the World Health Organisation, BATSA's medical expert says the evidence is mixed and inconclusive.

Cockrell said BATSA accepted it was a "complex matter".

However, for the purposes of the case at hand, he said it was critical to establish whether there was an association between smoking and more severe cases of Covid-19; and secondly, whether this association would lead to more smokers stopping smoking during the pandemic.

The court should focus on this "narrower question", he argued.

Medical experts note the damage from smoking is cumulative and gradual, said Cockrell, adding that a short-term ban would be unlikely to deliver the benefits government was aiming for.