On 26 June 2020, judgment was handed down in Fair-Trade Independent Tobacco Association v President of the Republic of South Africa and Another. The key issue was whether the current ban on the sale of tobacco products, e-cigarettes and related products is lawful. The court upheld the legality of the ban, holding that the ban was both rational and necessary, and was therefore authorised by the Disaster Management Act, 2020 ("DMA").
This case raised some of the following legal questions in relation to the Coronavirus (COVID-19) crisis:
- What is the standard of review to which the promulgation of COVID-19 regulations is subject?
- What does "necessary" mean, within the context of section 27(3) of the DMA?
- How will the rationality of the promulgation of COVID-19 regulations be assessed?
- How will our courts deal with competing scientific evidence about what measures are required to combat the COVID-19 crisis?
- To what extent is public participation required in the regulation making process?
The appropriate standard of review
It has been unclear whether regulation-making constitutes administrative action and is subject to the Promotion of Administrative Justice Act, 2000 ("PAJA"), or is instead subject only to the principle of legality, since Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others, in which the Constitutional Court failed to reach consensus
In a series of recent cases dealing with the COVID-19 regulations, and now in Fair-Trade Independent Tobacco Association, the High Courts have held that regulation making constitutes executive action, and is therefore not subject to the Promotion of Administrative Justice Act, 2000 ("PAJA"). The court held that the minister's decision to promulgate regulations banning the sale of tobacco products is "clearly. executive action. [and] is conduct susceptible to legal challenges founded on the rationality standard which is in turn founded in the principle of legality. [and is therefore] not administrative conduct which should be challenged under the PAJA".
The rationality of the tobacco ban
The court emphasised that, in assessing the rationality of the regulations banning the sale of tobacco products, it had to consider whether a rational connection exists between a legitimate government purpose and the means selected by the state to pursue this purpose. The court further emphasised that the rationality assessment does not require it to assess the proportionality of the regulations, or whether better means are available to achieve the purpose pursued by government.
The full bench noted that the primary rationale for the ban on tobacco products was "to protect human life and health and to reduce the potential strain on the health care system". The court held that "the medical material and other reports, inclusive from the WHO, considered by the Minister, though still developing and not conclusive regarding a higher COVID-19 virus progression amongst smokers compared to non-smokers, provided the Minister with a firm rational basis to promulgate regulations 27 and 45, outlawing the sale of tobacco products and cigarettes".
In addition, the court held that the adverse effects of the tobacco ban, such as the fact that it has encouraged the illicit trade of cigarettes are "not fatal to the rationality of the ban given that the Minister only needs to show that the means chosen to achieve the intended objective were reasonably capable of achieving it".
The assessment of scientific evidence
The court pointed out that in assessing the rationality of the regulations, a court is not required to determine whether the evidence put up by the state "is so cogent and conclusive as to establish a substantive or direct link with a higher COVID-19 disease progression in smokers, when compared with non-smokers". Instead, the court took into account that "such evidence provides a sufficient rational basis for the Minister to outlaw the sale of tobacco products and cigarettes".
As a result, the court was not prepared to weigh the competing evidence of the parties. The court, however, appeared to accept that the minister was obliged to demonstrate that she had taken all relevant considerations into account.
Having conducted this assessment, the court held that the evidence adduced by the minister provided a sufficiently rational basis for her decision and that the minister had discharged the onus of properly considering the relevant evidence.
Audi alterum partum
The court held that, whereas public participation is required in the legislative process, and procedural fairness is required in respect of administrative action, executive action is only required to be procedurally rational, and the minister was therefore not obliged to afford the public a hearing before promulgating the regulations banning tobacco products.
Section 27(3) of the DMA
Section 27(3) of the DMA provides that regulations promulgated pursuant to section 27(2) of the DMA, may only be promulgated to the extent "necessary" to contain the effects of the disaster.
The court interpreted "necessary" to mean "reasonably necessary", and therefore held that "the necessity requirement is met once it is shown that there is a rational connection between the ban on tobacco sales and curbing the scourge of the COVID-19 virus in an attempt to prevent a strain on the country's healthcare facilities".
Originally published 14 July 2020.
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