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British American Tobacco SA prepares for court showdown with govt on Wednesday

2 August 2020 10:42 AM
Tags:
British American Tobacco
BAT SA
cigarette ban
Tobacco Ban
Minister Nkosazana Dlamini-Zuma
court battle

British American Tobacco SA (BAT SA) will be challenging the constitutionality of the tobacco ban in the Western Cape High Court.

The tobacco firm, which produces Dunhill and Lucky Strike, is one of 10 applicants set to jointly challenge the ban in court this Wednesday.

Tobacco farmers, manufacturers, and retailers are among other members of the industry joining the court bid.

The government defeated an earlier court challenge to unban cigarettes from the Fair Trade Independent Tobacco Association (Fita) in June.

RELATED: High Court dismisses Fita's legal bid to have cigarette ban overturned

Mike Evans, the lawyer representing BAT SA and others, says this legal application is not the same as Fita's failed bid.

Evans explains the crux of the legal arguments to CapeTalk host Sara-Jayne King.

Constitutionality

The applicants will argue that the tobacco ban infringes on various Constitutional rights, including the right to trade and the individual right to bodily integrity.

Evans says it's irrational that smokers are effectively prohibited from smoking cigarettes, but "they're allowed to smoke cannabis at home."

RELATED: Black tobacco farmers: We pay tax and create jobs, but SA govt is suppressing us

We've raised a series of Constitutional challenges saying that this ban infringes on a whole number of Constitutional rights.

Michael  Evans, Public Law Partner - Webber Wentzel

It infringes the right to trade, which relates to the manufacturers. It relates to the right to property and the rights to individual consumers. They have the right to privacy, dignity, and bodily and psychological integrity as well.

Michael  Evans, Public Law Partner - Webber Wentzel

They're allowed to smoke cannabis at home, but effectively they're not allowed to smoke cigarettes because they can't purchase them. We're saying that those rights have been infringed by this ban.

Michael  Evans, Public Law Partner - Webber Wentzel

Cost vs Benefit

In addition, the applicants will debate whether the supposed health benefits of the ban have outweighed the harm caused by the prohibition.

Evans says the economic damage of the tobacco ban far outweighs the desired goal of reducing severe Covid-19 infections.

He says there has been "minimal gain" for the public health system.

Therefore, the applicants will argue that the government's ban does not meet the requirements of reasonableness and proportionality.

RELATED: More smokers sharing 'skyfs' and cigarette prices up by nearly 250%, study finds

The issue is whether if you stop smoking, you lessen the impact on the public health system.

Michael  Evans, Public Law Partner - Webber Wentzel

Based on the minister's own figures, we've said that 16 beds would be saved. In other words, by stopping smoking, the [Cogta] minister will free up 16 ICU beds in South Africa at any one point in time out of about 3,500 to 4,000 beds in SA.

Michael  Evans, Public Law Partner - Webber Wentzel

We've said that that is absolutely a minimal gain for this ban on smoking. Because against that, what you have is a massive impact on society. The entire tobacco industry has been affected, not just big manufacturers like BAT SA.

Michael  Evans, Public Law Partner - Webber Wentzel

There's no evidence that stopping smoking has had a massive impact in terms of the saving of beds.

Michael  Evans, Public Law Partner - Webber Wentzel

Evans says it may take several weeks before a court judgment is made in the matter.

Listen to the discussion on Weekend Breakfast with Sara-Jayne King:


2 August 2020 10:42 AM
Tags:
British American Tobacco
BAT SA
cigarette ban
Tobacco Ban
Minister Nkosazana Dlamini-Zuma
court battle

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