News analysis

No smoking
  • Cooperative governance and traditional affairs minister Nkosazana Dlamini-Zuma can claim total victory after a challenge to the lockdown ban on tobacco sales was dismissed on Friday.
  • The court not only threw out every argument the Fair-Trade Independent Tobacco Association had made, it also established a standard to evaluate the lawfulness of disaster rules.
  • Until that judgment is overturned, Dlamini-Zuma and her cabinet colleagues don't have to be fair when making rules, and need not make the best possible decision either.
  • If the outcome isn't perfect, that's okay too.
  • By that standard, other groups toying with the idea of challenging regulations, or claiming damages for the impact of the lockdown, will have their work cut out for them.
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Cooperative governance and traditional affairs (Cogta) minister Nkosazana Dlamini-Zuma is now all but legally bulletproof – and those who wish to challenge lockdown regulations are out of luck.

The high court in Pretoria on Friday dismissed a challenge to the tobacco-sales prohibition, brought by the Fair-Trade Independent Tobacco Association (Fita), with costs.

The association's argument that cigarettes should have been deemed essential because they are addictive "has no merit", a full bench ruled.

See also on Fin24: FITA's court bid to have cigarette ban overturned dismissed with costs

The court also threw out arguments on the dangers of the illicit cigarettes some smokers turned to, and arguments on the economic impact of the ban, and arguments on the process Dlamini-Zuma followed in arriving at her decision to institute the ban.

But it went even beyond that. Before reaching its decision, the court laid out a standard for how complaints about disaster regulations should be evaluated – and that standard very much favours Dlamini-Zuma and her cabinet colleagues.

So much so that the various groups who have been considering their own sectoral legal challenges to onerous rules, and those who have been toying with suing the government for lockdown-related damages, will need to think very hard indeed.

The decision to ban tobacco sales, the court said, may not have been the most appropriate approach to the problem, but that does not matter when its rationality is called into question.

"Even if the ban has not resulted in every smoker in the country stopping the habit, this does not render the ban irrational given that the test for rationality is not whether the means chosen were the best possible means but rather whether the chosen means, being the ban, could rationally achieve the objective," the bench said.

If, then, schools are opened or closed, or foreign tourists continue to be turned away, those affected by such decisions may have to show that there was no reasonable prospect of such measures helping fight the spread of the coronavirus before a court will take them seriously. 

Nor does the process by which rules are made have to be fair, the court said in dismissing Fita's complaint that it had not been properly heard. "All that is required is that the process leading up to the promulgation of the regulations is rationally related to achieving the purpose sought to be achieved through the regulations."

A rule does require objective rationality the court said, and it was satisfied that Dlamini-Zuma had "considered all of the relevant medical literature", even if she rejected some studies and evidence.

That suggests a sufficient level of homework will also be a defence against claims in other areas, and that it will be hard for aggrieved parties to convince a court it must redo all that homework itself, and weigh up pros and cons.

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