Instead of a ‘perverse’ ban, govt could have treated cigarettes like funeral spoons, SCA says

Business Insider SA

  • Cogta Minister Nkosazana Dlamini Zuma roundly failed to convince the Supreme Court of Appeal that a pandemic-linked attempt to stop people smoking had made any sense.
  • Dlamini Zuma and President Cyril Ramaphosa on Tuesday won only costs against them in their effort to overturn an earlier high court victory for British American Tobacco on the lockdown cigarette ban.
  • The court found "constitutionally perverse" the minister's argument that expensive black market cigarettes had been a good thing.
  • The education approach used around other behaviour – such as sharing spoons at funerals – could have worked, the court said.
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Co-operative governance minister Nkosazana Dlamini Zuma turned to a "constitutionally perverse" argument in an effort to justify an unsound ban on cigarettes during parts of South Africa's Covid-19 lockdown, the Supreme Court of Appeal (SCA) has ruled.

And she did not seem to understand that smoking has long-term effects, or that she could have used the same approach as she did to funeral spoons if she wanted people to stop sharing cigarettes.

The SCA on Tuesday published its ruling dismissing Dlamini Zuma and President Cyril Ramaphosa's effort to reverse a high court decision that the cigarette ban had been unlawful.

That ban, the government side contended, had not only been legal but also effective in reducing the harm from Covid-19.

Instead, the government lost with costs at the SCA, and also had retroactive costs awarded against it for the high court matter too, down to the expenses of the expert witness that had testified for a group led by British American Tobacco South Africa.

While the ban on cigarettes did nothing to help combat Covid-19, it really messed with some 11 million smokers, the Supreme Court said.

"They use these products for pleasure and to manage or relieve stress during their daily lives. Their inability to enjoy the daily pleasures of smoking and vaping had a negative impact on their emotional well-being and personal autonomy."

Dlamini Zuma tried to argue that she had not banned the use of cigarettes, but only their sale. The SCA didn't bite. The minister had made it clear she had wanted to stop people from smoking, the court said, and that the sales ban was intended to stop people sharing lit cigarettes.

That made the cigarette ban a "direct limitation of the rights to dignity, and the right to bodily and psychological integrity" – which, constitutionally, put the onus on Dlamini Zuma to justify why those fundamental rights should be limited, and to show that the limitation was proportional.

This she could not do.

One of the government's worries was about people sharing lit cigarettes, but banning cigarette sales just saw most smokers turn to illegal cigarettes, the SCA said, so that was not achieved. The government could, on the other hand, have done what it did around other dangerous behaviours: told people to stop doing it.

See also | Namibia should have a huge pile of cigarettes. Mysteriously, they are nowhere to be found.

"The government implemented widespread education and awareness campaigns to inform people about social distancing and sanitising measures to reduce the spread of the disease. For example, the minister advised the public not to share spoons at funerals. Similar measures could have been taken in relation to the use of tobacco and vaping products."

The court also dismissed Dlamini Zuma's citation of a World Health Organisation brief on Covid-19 that recommended smokers stop smoking, saying the document did not recommend banning cigarettes. 

See also | Govt has cited the science behind SA’s cigarette ban – but it doesn’t add up

The rest of Dlamini Zuma's arguments fared no better. She never proved that smokers would get worse cases of Covid-19, and she seemed not to understand that the health impact of smoking comes from long-term use and is not fully reversed by a temporary halt in smoking; 

The court's strongest language was reserved for Dlamini Zuma's argument that up to 15% of smokers had quit during the ban because they could not afford the more expensive black market cigarettes that everyone else had turned to.

Saying the ban "was effective because most smokers would have contravened the law, but a small minority of them would not have been able to afford the prices of illicit cigarettes, is constitutionally perverse – it relies on unlawful conduct (the sale of illegal cigarettes at a premium) in order to achieve the intended outcome (a reduction in smoking)," the court said.

"This perversity is exacerbated by the fact that the state could have achieved the same outcome by imposing a temporary increase in excise duty on cigarettes, so that the price of cigarettes sold lawfully would be the same as the price of cigarettes sold unlawfully during the lockdown."

The difference, the SCA said, would have been tax revenue collected on those more expensive cigarettes – with the "additional advantage of generating funds to expand the number of ICU beds beyond the number that might have been saved by the tobacco ban."

South Africa, the SCA noted, was in the minority in banning cigarettes; only India and Botswana did the same. On the other hand, several European countries made special arrangements to keep tobacconists open, as essential retailers. 

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