The Supreme Court of Appeal (SCA) has ruled that a decision by the government to ban the smoking or sale of all tobacco products during the hard lockdown was unconstitutional and invalid.
The SCA made the ruling on Tuesday when it dismissed an appeal by Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma who was contesting an order of the Western Cape High Court which found that the decision by the government to ban smoking during the national state of disaster as a way to contain the spread of COVID-19 had no basis both legally and on health grounds.
The High Court in Cape Town had declared that Regulation 45 – promulgated by Dlamini-Zuma at the beginning of the pandemic in 2020, outlawing the sale of tobacco, tobacco products, e-cigarettes and related products, except for export – was unconstitutional and invalid.
‘Zol’ is South African slang for a hand-rolled cigarette, particularly cannabis.
The matter was initially brought to the High Court by tobacco farmers, processors, manufacturers, retailers and consumers who felt hard done by the regulation.
They successfully challenged Regulation 45 in that court on the grounds that it was an infringement of the fundamental rights to dignity, privacy, bodily and psychological integrity, freedom of trade and deprivation of property and on the basis that the minister had not shown that the regulation was necessary, as required by law.
According to the SCA judgment, the minister contended that the reasons for Regulation 45 were to protect human life and health and reduce the potential strain on the health system, and that the medical evidence at the relevant time showed that the use of tobacco products increased the risk of developing a more severe form of COVID-19.
“The minister argued that smokers with COVID-19 had higher intensive care unit (ICU) admission rates, a higher need for ventilators and a higher mortality rate than non-smokers,” read part of the judgment.
In order to establish this, the SCA held that the minister was required to show that: smoking led to a more severe COVID-19 disease progression; that a temporary ban on the sale of tobacco products during lockdown would reverse or lessen that disease progression; that Regulation 45 was effective in materially reducing the number of smokers; and that such reduction in smoking would have led to a reduced ICU bed occupancy which would enable the health system to cope with COVID-19 admissions.
The SCA concluded that the minister failed to do so.
The SCA held that the scientific evidence as to whether smoking increased COVID-19 disease progression was mixed and inconclusive.
“The statements by the World Health Organisation, on which the minister relied, do not support the minister’s justification for the ban on the sale of cigarettes.
“There is no evidence that quitting smoking in the short-term, has clinical significance for COVID-19 severity and outcomes.
“Regulation 45 did not reduce the number of smokers – 90 percent of them continued to smoke and the claim that the number of smokers had been reduced, was based on illegality: a reduction in smoking would have occurred because smokers would not have been able to afford the prices of cigarettes on the black market,” said the SCA.
It said the state could have achieved the same outcome by imposing a temporary increase in excise duty on cigarettes.
“The minister thus failed to show that smokers have higher ICU admission rates, a higher need for ventilators and a higher mortality rate than non-smokers, which would have increased the strain on the health system.”
The claim that smoking increased the behavioural risks associated with COVID-19, because smokers share lit cigarettes and do not observe social distancing measures, was also not established.
This concern could have been addressed by measures other than an absolute ban on the sale of cigarettes.
Regulation 45 did not prevent smokers from sharing lit cigarettes, since 90 percent of them continued smoking during the lockdown.
The SCA consequently held that the limitation of the rights to dignity, bodily and psychological integrity, freedom of trade and deprivation of property was not justified in terms of Section 36 of the Constitution.
It said Regulation 45 unjustifiably limited the autonomy of persons to regulate their own affairs, and to exercise control of their bodily and psychological integrity.
It infringed the right to freedom of trade in that farmers could not sell and nobody could buy their tobacco.
Tobacconists were unable to trade.
Farmers were unable to use their farms productively and manufacturers, their costly factories and equipment.
This was an unlawful infringement of the right to property.
The SCA however found there was no infringement of the right to privacy because Regulation 45 did not limit the intimate personal sphere of life of any individual.
Finally, the SCA held that Regulation 45 was not strictly necessary or essential in order to protect the public or to deal with the destructive and other effects of the disaster, as contemplated in Section 27(3) of the Disaster Management Act.
The SCA therefore dismissed the appeal and upheld the respondents’ cross-appeal on costs. – Staff Reporter