# FITA heads to Supreme Court of Appeal over tobacco ban

- Link: https://dearsouthafrica.co.za/2020/07/07/fita-heads-to-supreme-court-of-appeal-over-tobacco-ban/
- Published: 2020-07-07T08:39:28+02:00
- Author: dearSA

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Cape Town – The Fair-Trade Independent Tobacco Association has asked for urgent 
leave to appeal the high court’s dismissal of its challenge of the ban on cigarette
sales in the Supreme Court of Appeal.

Fita, in its application, said the North Gauteng High Court erred in interpretation
of the threshold for concept of necessity in the Disaster Management Act in terms
of which the government declared a state of disaster in response to the Covid-19
pandemic.

It should, Fita said in its papers, have found that the test was whether something
was “absolutely necessary”.

The court also erred in its application of the rationality test, which goes towards
whether imposing a ban on cigarette sales was rationally linked to the purpose for
which the government promulgated regulations in terms of section 27 of the act.

A full bench of the high court in Pretoria held that rationality was not a particularly
stringent test and it had been satisfied by Cooperative Governance Minister Nkosazana
Dlamini Zuma in her reasoning for prohibiting the sale of tobacco products.

“The question before the Court is rather, having regard to the evidence considered
and relied on by the minister, could it be said that there is enough to conclude
that the prohibition placed on the sale of tobacco products is justified?” the judges
held.

“In our view the answer is clearly in the affirmative.”

Lawyers for the minister argued that, based on the available scientific research,
the government imposed the ban to prevent hospitals being overrun with smokers who
presented with severe Covid-19 symptoms.

Fita disputed the scientific evidence and has done so again in its application for
leave to appeal, but argued that to a large extent it was irrelevant because the
rational foundation for the minister’s actions fell away unless it was proven that
people had stopped smoking en masse as a result of the prohibition on cigarettes.

“The Court erred in not finding that the ban in the regulations is based on the 
fundamental false premise that if a certain number of people are prevented from 
gaining access to cigarettes and tobacco products for a limited period of time they
will cease to be ‘smokers’,” the association said.

It is challenging the judgment in its entirety, including the cost order imposed
by the court.

Fita said it was challenging the decision to award costs against it because the 
State expressly did not seek a cost order on the basis that the case was in the 
public interest.

**African News Agency/ANA **