Dr. Nkosazana Dlamini-Zuma, Minister of Cooperative Governance and Traditional Affairs, failed to justify the ban on the sale of tobacco and tobacco-related products.
That’s how British American Tobacco (Batsa) argued in its reply filed in the Cape Town High Court on Wednesday.
On June 1, Batsa filed an urgent application against Dlamini-Zuma, the National Covid 19 Command Council and the President.
Batsa and eight other parties are requesting a court order that the level 3 regulation prohibiting cigarette sales be declared unconstitutional and invalid and set aside.
A cost order is also filed against Dlamini-Zuma, and any other respondents who oppose it.
Dlamini-Zuma filed her complaint to court last week, after which Batsa filed his papers this week.
Batsa argues that while the ban is unconstitutional, there is no rational economic or scientific basis for it.
His reply contains affidavits of supporting evidence from a European expert who is a member of the British Thoracic Society and a member of the European Respiratory Society.
This consultant has treated dozens of Covid-19 patients and argues there is no consensus that smoking is a risk factor for Covid-19.
Dlamini-Zuma also incorrectly made medical comparisons and she did not interpret the World Health Organization’s advice to justify her ban.
Current smokers are at lower risk of being hospitalized with Covid-19, Batsa says. Furthermore, the ban could have a negative impact on the fight against the virus.
This comes after prof. Shabir Madhi, director of the South African Medical Research Council’s vaccine unit, said at a webinar on Wednesday that there is no scientific evidence that smoking will make a difference to the disease.
According to court documents, Dlamini-Zuma admits there is no convincing evidence that smoking affects the virus.
Batsa argues there is consistent evidence that smokers are less likely to be hospitalized by Covid-19.
Batsa also claims that she also used hearsay medical evidence to substantiate her case.
She acknowledged that 21 billion illegal cigarettes would still be smoked if the ban was extended. That equates to seven cigarettes for the eight million smokers in the country, without paying one cent on taxes. Batsa also says the minister thinks it is appropriate that the huge economic damage caused by the ban will be offset by the illegal trade market.
Regarding the survey she did about how many people (the 2,000 people who apparently participated in the survey) were not opposed to the ban, Batsa Dlamini-Zuma says she lied, or she got the wrong information.
In its application, Batsa used the evidence of Tax Justice SA’s Yusuf Abramjee, who claims 8.1 billion illegal cigarettes are smoked annually in the country, but the South African Revenue Service (SARS) has seized just 170 million in the past four years. That means for every 170 packets of illegal cigarettes sold, authorities seize just one packet.
“This proves that the government has failed to stop the illegal market. This heightens the fear that the illegal market will continue to grow if the ban is extended, ”the court documents say.
