Judgment reserved in tobacco case, lawyer says it's headed to the SCA either way
British American Tobacco South Africa (BAT SA) and nine other co-applicants have challenged the constitutionality of the tobacco ban in the Western Cape High Court.
BATSA and other industry players took the Cooperative Governance and Traditional Affairs Department to court in a bid to have that ban on the sale of tobacco products lifted.
They argued that the cigarette ban infringes on a number of rights enshrined in the Constitution.
The judges presiding over the case will now consider submissions presented to them before delivering judgment.
Michael Evans, the lawyer representing BAT SA and others in the case, says their constitutional argument is very different from the Fair Trade Independent Tobacco Association (Fita) court challenge in June.
He says the matter is likely to go to the Supreme Court of Appeal (SCA), regardless of which party the ruling favours.
[Unlike Fita], we didn't even argue irrationality. In terms of administrative and constitutional law, the threshold for the government to cross is when there's a rationality challenge is relatively low.Michael Evans, Public Law Partner - Webber Wentzel
We set a much higher threshold in the way we pleaded the case. Our main argument was a constitutional argument. We said that they infringed a large number of constitutional rights.Michael Evans, Public Law Partner - Webber Wentzel
I think either party which loses this matter is going to seek leave to appeal with the SCA.Michael Evans, Public Law Partner - Webber Wentzel
Evan says it's unclear which way the High Court judges were leaning but he says a ruling is important, regardless of whether the government voluntarily lifts the ban or not.
One of the difficulties we had, and it wasn't the fault of the judges at all, is that they hadn't been able to read the papers properly. There were 2,000 pages of paper in this matter and they were filed up until quite late before the hearing and they had other matters.Michael Evans, Public Law Partner - Webber Wentzel
They said that they hadn't had an opportunity to go through the papers, and that made it more difficult for them to express a view or give any indication of which way they are leaning.Michael Evans, Public Law Partner - Webber Wentzel
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