On 18 March 2020, initial regulations were issued by the Minister of Co-Operative Governance and Traditional Affairs ("the Minister"). The national lockdown commenced at midnight on 26 March 2020. To regulate the lockdown, various regulations were promulgated and amended which inter alia placed strict limitations on the sale of goods, the provision of services and the movement of people.
On 23 April 2020, there seemed to be some relief in sight for smokers as the President announced that the sale of tobacco products would be permitted. The relief was short-lived as on 29 April 2020, the Minister promulgated new regulations to govern the level 4 lockdown, which expressly excluded the sale of tobacco products. This about-turn was not well received by smokers across the Country.
On 28 May 2020, level 3 regulations were promulgated, which once again excluded the sale of tobacco products.
The Fair-Trade Independent Tobacco Association ("FITA") approached the High Court for urgent relief, stating that the Minister's decision to ban the sale of tobacco products did not fall in line with the rule of law concept, in that it challenges the rationality underpinning the decision. FITA's argument rested on the fact that the end goal the Minister had sought to achieve had no relationship to the means employed by her.
Thus, the question before the court was whether the decision of the Minister to ban the sale of tobacco products was rationally related to the purpose for which the power was conferred upon the Minister in terms of the laws of the Republic.
Importantly, to pass the test for rationality, there must be a rational connection between the challenged decision and the purpose sought to be achieved through such a decision. If not, the regulations are inconsistent with the rule of law and will, therefore, be invalid.
An enquiry into rationality does not, however, extend to an interrogation of whether other or better means could have been used to achieve the purpose for which the power was given. Further, rationality should not be conflated with reasonableness or fairness.
In defending the regulations, the Minister's argument included a reference to the shortfall of essential healthcare resources as well as the general impact of smoking on the healthcare system of the country.
The Minister tendered medical literature, reports and studies which indicated that smokers were at a higher risk for developing severe illnesses when affected by the COVID-19 virus, as well the fact that smokers have a faster rate of a progression of the virus when compared to non-smokers. This, in turn, would place further pressure on an already heavily constrained healthcare system in South Africa.
The court found that the Minister's medical material and other reports provided the Minister with a firm and rational basis to ban the sale of tobacco products.
FITA raised various arguments alleging the Minister's failure to adhere to the audi alteram partem principle (the principle that no person should be judged without a fair hearing in which each party is allowed to respond to the evidence against them), the failure to consider the economic impact of the prohibition, the health and psychological impact on smokers as well as the illicit trade in cigarettes.
The court once again highlighted the point that executive decisions are only required to be procedurally rational and not fair, thereby discounting the audi alteram partem argument. Further, the court found that the illicit trade in tobacco products was not fatal to the rationality of the ban.
Ultimately, the court found in favour of the Minister and the ban on the sale of tobacco products remains in place.
The next round of arguments, this time brought by tobacco giant British American Tobacco of South Africa (BATSA), was supposed to proceed on 30 June 2020, however on 26 June 2020, BATSA was advised by the Western Cape Judge President John Hlophe's office that he application could only be heard in the coming court term after 4 August 2020.
By this time, the tobacco ban will have reached four and a half months, with the 6 week delay alone resulting in South Africa's economy losing an estimated R1.4 billion in excise tax alone.
Originally published by SWVG Inc., July 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.