The South African government wants to appeal a judgment and reinstate Tobacco Ban that found it had unnecessarily banned tobacco sales in 2020.
The courts should have shown more “judicial deference” to
the powers of co-operative governance minister Nkosazana Dlamini Zuma, the government says in newly filed papers.
Given the rising number of coronavirus cases at the time, the ban was fair, it argues.
Infections are rising faster now than they were at the time.
The ban should have been evaluated in light of the fact that
the government did not know what impact Covid-19 would have on the health system, the government says.
And it still does not know what the impact will be.
It was fair for the government to have imposed a total ban on the sale of tobacco products
during South Africa’s hard lockdown, under the circumstances prevailing at the time, the state attorney argues in a new legal filing –
describing circumstances that currently hold.
President Cyril Ramaphosa and co-operative governance and traditional affairs minister Nkosazana Dlamini Zuma on
Monday started the process of seeking an appeal against a ruling that found the ban to have been unnecessary.
When the high court had ruled against the ban, they said, it had failed to show
“appropriate judicial deference to the minister’s decision regarding this difficult, policy-laden and polycentric matter.”
In one of its arguments agains the negative ruling, reinstate Tobacco Ban
the state expresses concern that a restrictive reading of the Disaster Management Act
“will limit unduly the minister’s power to make regulations”.
The law lists a number of things the minister in Dlamini Zuma’s position can do once a national disaster is declared,
such as restricting the sale of alcohol or limiting the movement of people.
It then, in a so-called “catch-all” provision, allows her to take such “other steps” as are necessary to limit the impact of a disaster.
The government has relied on that provision for various decrees, including limiting the sale of hot food and shutting down nightclubs.
The state also argues that “every percentage point” counts,
when it comes to fighting Covid-19, so that even a small gain from banning smoking would be justified,
and says the amount of tax revenue lost because of the ban is small compared to the damage done to the economy due to smoking.
Amid a second wave of infections that is regularly exceeding the peak of the first wave,
the state attorney says Dlamini Zuma had been “justified in taking a cautious approach,
especially the protect the health care system and prevent it from being overwhelmed”
at a time when infection numbers were “rising and considered likely to continue do so”.
At the time, the state argues, the demands the epidemic “would place on the health care system were (and still are) not known”.
The National Coronavirus Command Council is expected to meet on Wednesday.
Experts have been unwilling to predict when the second wave may crest,
though some have warned that some provinces seem to have an accelerating spread of the coronavirus.