Co-operative governance & traditional affairs (Cogta) minister Nkosazana Dlamini-Zuma has dismissed a contention by the Fair-Trade Independent Tobacco Association (Fita) that the high court ought to declare tobacco an essential item.
“Cigarettes and tobacco do not‚ by their nature‚ fall into the same category as goods which are life sustaining or necessary for basic functionality‚” Dlamini-Zuma argued in a responding affidavit to Fita’s application for leave to appeal a North Gauteng High Court decision‚ dismissing its challenge of the tobacco ban under lockdown.
The matter is now before the Supreme Court of Appeal (SCA).
Dlamini-Zuma argued in her affidavit‚ filed last week‚ that tobacco was not a vital‚ priority or indispensable commodity‚
“On the contrary‚ tobacco products kill 115 South Africans daily. It therefore cannot be considered a ‘basic good’ akin to electricity and airtime‚” she said.
“Simply because a good is addictive [it] does not necessarily follow that it is therefore necessary for human survival or required for basic human functionality.”
The minister contended that there was no reasonable prospect of Fita’s application succeeding. There was also no compelling reason for the appeal to be heard.
“The high court’s analysis on the issue cannot be faulted. Measures that serve to reduce the strain on the health-care system must be considered to be strictly necessary‚” she said.
Measures reducing the strain on the health-care system‚ in the current situation‚ were not “nice-to-haves” but necessary‚ she added.
“Any measure that serves to reduce the strain on the health-care system is‚ I submit‚ a measure strictly necessary to contain and minimise the effects of the pandemic‚ and to protect the public.
“As the court held‚ the tobacco ban does serve to reduce the strain on the health-care system. It follows that the ban is strictly necessary to protect the public.”
Dlamini-Zuma’s affidavit held that even if Fita adopted a different interpretation of necessary‚ there was still no reasonable prospect of the court order being overturned.
She argued there was no evidence proving illicit products sold during the lockdown were more harmful than normal tobacco products‚ as Fita contended in its case.
“The test is not whether the prohibition is the best means possible to achieve the objective. It is rather whether the chosen means‚ being the prohibition‚ could rationally achieve the objective.”
By: Nomahlubi Jordaan
Source: ARENA Holdings.