The Fair Trade Independent Tobacco Association (Fita) filed its application of appeal with the Pretoria High Court on Friday.
It comes after a full bench of judges ruled that Dr. Nkosazana Dlamini-Zuma, Minister of Cooperative Governance and Traditional Affairs, has valid reasons for the tobacco ban.
In the judgment all of Fita’s arguments were rejected. The judges, led by Gauteng judge President Dunstan Mlambo, ruled that Fita did not take into account the context in which the regulations were delegated. Fita disputes this finding and argues the appellate court may come to a different conclusion.
“Many people in South Africa will undoubtedly still be dying of the virus, which is why the minister acted within her rights when she imposed the ban,” the court ruled.
The ban on the sale of tobacco products has been in effect for more than three months and has already had a major financial impact on the industry.
Fita chairman Sinenhlanhla Mnguni confirmed on Friday that they had filed for leave to appeal. A date for hearing this has yet to be confirmed.
According to the application, the court erred in failing to properly pay attention to the medical research submitted by Fita.
Fita says the court also erred in making a cost order against him because the respondents did not ask for it.
Among other things, Fita claims the court erred:
• In his test, whether the conduct was rational when applying the guidelines under the Disaster Management Act;
• By not asking the correct questions whether the ban on the sale of tobacco and related products will have any impact on combating the virus for a given period of time;
• By not finding that there is no rational connection between the prohibition and lives saved;
• By not finding that, despite the ban, people continue to smoke because they can still obtain cigarettes in the liquor store. Fita agrees with the court that the ban has boosted the smuggling trade in cigarettes. This, according to Fita, creates a greater risk because illegal and unregulated products are sold and used. These products may contain harmful ingredients that increase the risk of health problems, which may put more pressure on the health system;
• By finding that tobacco and related products are not essential products that people need to function. The court also did not want to take into account medical evidence of the applicants.