U-turn was the result of consultations, co-operative governance minister says in court papers.
As the government faces an unprecedented level of legal challenges to its Covid-19 shutdown regulations, co-operative governance minister Nkosazana Dlamini-Zuma has strongly defended the state’s disputed decision to continue its cigarette ban and denied any suggestion that she and President Cyril Ramaphosa were “at odds” over it.
“There is nothing sinister in a change of position following a consultative process ... in fact the very nature of consultation is that change may result,” Dlamini-Zuma stated in court papers filed late on Friday, in response to the urgent challenge to the tobacco ban by the Fair-Trade Independent Tobacco Association (Fita).
Dlamini-Zuma, who narrowly lost the ANC leadership race to Ramaphosa in December 2017, previously told the nation that a decision to allow the sale of tobacco products during the current phase, which started on May 1, was being reversed. This was just six days after Ramaphosa had said such sales would be allowed.
On why Ramaphosa initially made that announcement she states in her court papers: “My understanding is that the president made this statement based on the view that the NCCC [National Coronavirus Command Council] had taken on the issue at the time”.
Dlamini-Zuma contends that Fita’s cigarette ban court case, which is one of at four potential legal challenges to the lawfulness of the NCCC and its decisions, is “not urgent” and should only be heard in the week of June 9 — a possible indication that the state’s level 4 lockdown will remain in place for at least another month.
Fita is expected to respond to that argument in the coming days.
Dlamini-Zuma’s announcement raised suspicions that she was overruling Ramaphosa and that the president’s efforts to guide the country through the Covid-19 crisis are being undermined by factional battles in the ANC. One opponent of the ban, finance minister Tito Mboweni, did get overruled, raising concern that ministers in the security cluster have gained the upper hand, to the detriment of an economy that is set to shrink by the most in almost a century.
Both Dlamini-Zuma and cabinet secretary Cassius Lubisi, who has also vehemently disputed allegations that the NCCC may itself be unconstitutional, have reiterated that the minutes that record NCCC discussions about the cigarette ban are “secret” and cannot be open to public scrutiny.
Lubisi states in court papers that the disclosure of these minutes “during this time of crisis would seriously jeopardise the government’s decision-making processes and as a result the management of the national state of disaster as a whole”.
Fita, which counts cigarette trader Adriano Mazzotti as one of its founder members, insists that its legal action is partly driven by a demand for government transparency about how and why the NCCC made its determination about the need for a tobacco ban, seemingly then reversed that decision and then backtracked on its reversal.
Dlamini-Zuma says the government will provide a “record” of the material that led to the NCCC’s initial decision to lift the cigarette ban, and then the NCCC and cabinet’s subsequent decision to reverse it. But she is adamant that NCCC minutes cannot be included in this record.
The Fita case is not the only one where the government and the NCCC are being asked to explain their functioning in the time of the Covid-19 crisis, or defend the legality of their decisions.
The DA has already launched legal action against the state over its allegedly “unlawful” use of broad-based BEE status, race, gender, age or disability as criteria to determine which people or entities will receive economic or other forms of relief or assistance.
Minister of small business development Khumbudzo Ntshavheni says the party’s case is clearly not urgent and could lead to “absurd outcomes”.
She says the DA has failed to make a case for the far-reaching order it is seeking from the high court in Pretoria.
“Instead, the sharp point of the argument appears to be that all people are suffering equally as a result of the pandemic and therefore it is unlawful to distinguish among them on the basis of race, sex, age and disability in crafting relief initiatives,” the minister states in court papers, adding that “this contention is fallacious”.
In addition to its court bid to influence the government’s economic relief strategy, the DA has also hinted at another possible legal challenge to the state’s recent decision to impose a curfew on citizens, a measure typically used during a state of emergency.
Originally appeared in the Business Day https://www.businesslive.co.za/bd/national/2020-05-10-there-was-nothing-sinister-in-tobacco-ban-decision-nkosazana-dlamini-zuma-says/