Challenge to the tobacco ban goes up in smoke: High Court declares the prohibition of the sale of to
In order to curb the spread of COVD-19, Minister of Cooperative Governance and Traditional Affairs (“the Minister”) issued regulations prohibiting the sale of tobacco products, e-cigarettes and related products (“the tobacco prohibition”). This prohibition has been subject to widespread criticism and controversy surrounding the thriving trade of illicit tobacco products as a result of the ban as well as much political heat.
As a result of the tobacco prohibition, the Fair-Trade Independent Tobacco Association (“FITA”) lodged an application against the President of South Africa and the Minister seeking an order declaring that:
cigarettes and tobacco products are essential goods in terms of the Level Five Regulations;
regulation 27 of the Level Four Regulations to the extent that the sale of tobacco products are prohibited is invalid, alternatively is reviewed and set aside;
regulation 45 of the Level Three Regulations is invalid to the extent that the sale of tobacco products are prohibited, alternatively is reviewed and set aside; and
the sale of tobacco products and cigarettes is lawful.
As with the recent court judgement de Beers v Minister of Cooperative Governance and Traditional Affairs, in which the Lockdown Regulations were declared invalid and unconstitutional, legality and rationality formed the crux of FITA’s argument. Simply put, FITA’s argument was that the ends sought to be achieved by the Minister of curbing the spread of COVID-19 and ensuring that healthcare facilities are not overwhelmed, bears no relationship to the means adopted by her i.e. the prohibition of the sale of tobacco. As a result, FITA argued that the Minister acted irrationally and in so doing, breached the principle of legality.
The question before the court was whether the regulations are rationally related to a legitimate governmental purpose. If not, the regulations may be declared inconsistent with the rule of law, and therefore invalid. Judgment was handed down by the Pretoria High Court on 26 June 2020 in which the prohibition of the sale of tobacco products, e-cigarettes and related products was declared valid. The reasoning for the court’s decision is analysed below.
Reasons for the judgement
The legality principle forms part of the rule of law, which is one of the constitutional control mechanisms on the exercise of public power. Rationality is the minimum threshold requirement applicable to the exercise of all public power by members of the Executive and other functionaries.
The rationality test requires that there must be a rationally objective basis which justifies the conduct of the Minister. Once this hurdle is overcome, the conduct of the Minister is deemed rational. In this respect, the Minister’s task involved striking a balance between a number of complex economic, medical and social considerations in order to protect the public from the devastating effects of the pandemic. This entailed making informed policy choices.
The primary reason advanced by the Minister for the tobacco prohibition was “to protect human life and health and to reduce the potential strain on the health care system.” She recorded that this will ensure that healthcare facilities are not overwhelmed to the extent that those in need will be denied access to healthcare. The Minister further asserted that the reality is that South Africa is a developing country with limited access to healthcare facilities as demanded by the pandemic. This reality places a duty on her in her role as Minister to take measures that would prevent unnecessary strain on the limited healthcare facilities to ensure that COVID-19 patients have access to such facilities.
Although studies around the potential link between the use of tobacco products and COVID-19 are in the developmental stage, medical evidence shows that the use of tobacco products increases not only the risk of transmission of COVID-19, but also the risk of developing more severe symptoms of the disease. The Minister referred to a variety of medical sources and statistical figures, which she submitted presented a serious potential of harm which, as a responsible decision-maker, she could not “in good conscience ignore”. In this regard, the court held that the Minister had not cherry-picked medical evidence in favour of the tobacco prohibition, but that she had made a properly considered decision which was rational and intended to assist the State in complying with its responsibilities to its people.
FITA contended that the Minister failed to consider a number of other relevant factors such as the economic impacts of the prohibition, the potential health and psychological impact on smokers as well as the illicit trade in cigarettes. On the contention that the Minister failed to consider the economic impacts of the prohibition, she submitted that the economic impacts of the tobacco prohibition were indeed considered. However, it was decided that any impact that the tobacco prohibition may have on the economy was outweighed by the harm posed to life and the healthcare system by allowing the continued sale of tobacco products.
The court held that the illicit trade of tobacco products was not fatal to the rationality of the ban. This is considering that the Minister need only show that the means chosen to achieve the intended objective were reasonably capable of achieving it, and not whether it was the most effective or the best means possible. The continuing illicit trade in tobacco products does not negate the overwhelming view that smoking affects the respiratory system. It further renders smokers more susceptible than non-smokers to the heightened progression of COVID-19, especially amongst persons with comorbidities.
FITA lastly contended that tobacco related products ought to be classified as essential goods. This is because tobacco is addictive and the withdrawal from tobacco related products may lead to serious physical, psychological and emotional harm. This is aggravated by the freely available illicit, non-regulated products which are most hazardous to health.
The court however held that tobacco does not fall within the ambit of essential goods. Tobacco is not food, cleaning and hygiene products, fuel nor is it a medical product, and would only constitute as “essential goods” if it is considered as a basic good, akin to airtime and electricity. Accordingly, FITA’s argument that tobacco ought to have been considered as “essential” because it is addictive, does not hold water.
Originally appeared in Lexology at https://www.lexology.com/library/detail.aspx?g=1ebde267-4d7c-4b27-96d4-e5c9b9569313