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Banning ‘zol’ never helped reduce spread of COVID-19: SCA

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NOT SUCCESSFUL . . . The Supreme Court of Appeal has dismissed an appeal by Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma

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

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Ngwathe pays Eskom to fix damaged line

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BLACKOUT . . . The Ngwathe electrical network tripped on Friday and damaged Eskom’s equipment due to overloading

Ngwathe Local Municipality in the northern Free State has paid R1.1-million to Eskom so it can repair damages to the power line in the area caused by overloading.

Eskom provincial spokesperson Stefanie Jansen van Rensburg said in a statement the payment was made on Monday morning and work to restore supplies to Parys and Vredefort has started.

“Repairs to the Eskom equipment will now commence,” said Van Rensburg.

“Based on the assessments of the damage, supply to Ngwathe should be restored by midnight tonight,” she added.

The spokesperson however said the initial repairs were focusing on the hot connections and will only be temporary to assist communities.

Another outage will be scheduled to repair the transformer bushings that were also damaged during the overloading incident.

The Ngwathe electrical network tripped on Friday and damaged Eskom’s equipment due to overloading.

“Since 2018, Eskom has warned Ngwathe that their continued exceedance of their Notified Maximum Demand (NMD) – the contracted amount of electricity supplied by Eskom to the Municipality – will eventually result in damage to the Eskom network and that the municipality needs to apply for an upgrade in their NMD.

“In August 2021 and in April 2022, Eskom informed the municipality that any damage to the Eskom network that is caused by the municipality’s negligence, will be at the municipality’s cost.

“The municipality agreed to this condition and, although they were well informed and aware of the risks, they did not take the necessary precautions or made sufficient efforts to upgrade their NMD,” Van Rensburg explained.

Following the incident, Eskom insisted on the municipality making an upfront payment as it is one of the municipalities in the province sitting with a huge debt to the national power utility.

As at end June, Ngwathe’s overdue debt to Eskom totalled R1.89 billion.

Eskom says this debt continues to grow as current accounts are not paid in full.

“Ngwathe’s non-adherence to payment conditions and negligence in protecting the power system, jeopardises Eskom’s financial sustainability as well as the security of supply to the residents of towns such as Parys and Vredefort.

“Supply to Ngwathe will be restored to the capacity as per the contracted NMD.

“Risks of overloading and consequent damage remain, and it is imperative that the municipality invests in upgrading its supply,” according to the power company. – Staff Reporter

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Mangaung electricity tariffs up

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POWER TARIFFS UP . . . Local power distributor Centlec has hiked electricity charges

Electricity tariffs in Mangaung have gone up by 7.47 percent.

In a statement released on Thursday night, local power distributor Centlec said the increase was due to come into effect at midnight on July 1 following approval by the National Electricity Regulator of South Africa.

The increase will cover the period July 1, 2022 to June 30, 2023.

“A guideline increase of 7.47 percent on electricity tariffs for Centlec was therefore approved with effect from the 1st of July 2022 for the 2022/23 financial year,” read part of the brief statement.

It said a more detailed outline of the increases will be announced soon. – Staff Reporter

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CUT students arrested for protesting against exams

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DISTURBANCE AT CAMPUS . . . Five students protesting against exams at the Central University of Technology in Bloemfontein have been arrested

Police have arrested five students from the Central University of Technology (CUT) for public violence after they embarked on an unsanctioned protest against the institution’s decision to have the mid-year exams conducted in person at its two campuses in Bloemfontein and Welkom starting this Thursday.

The exams are set to run until July 20.

The fracas follows an announcement by CUT acting vice-chancellor and principal Professor Alfred Ngowi on Wednesday in which he stated the exams would take place physically at the two campuses as scheduled.

Ngowi said a detailed discussion about online exams at the Welkom campus concluded that it would not be feasible to conduct online exams because circumstances have changed regarding the COVID-19 restrictions and that it was also against the policy of the university.

“CUT is a full-contact institution and not a distance learning institution and therefore does not have the authority to accredit examinations that are not done under CUT’s status as a full-contact institution,” said Ngowin in a recorded video.

Ngowi told the students that academic assessment is one of the important building blocks of their qualifications.

He warned the students against disrupting the exams saying they would face disciplinary action as such action will be illegal.

“The unreliability of the power supply may have unintended disruptive effects,” he said.

“The COVID-19 restrictions which necessitated virtual classes and virtual assessments have all been suspended and the various accrediting bodies to which CUT is affiliated may not accredit online assessments.

“Therefore, we will proceed with physical assessments.

“Management has made all necessary preparations for the smooth running of the mid-year assessments, which have been communicated to all students.

“Therefore, any student who plans to disrupt the physical examinations on our campuses must be aware of the legal and disciplinary consequences.

“In addition, the CUT management has put several measures in place to protect the constitutional rights of all our students who are prepared for and prefer to sit for physical assessments.

“Students must be aware that any disruptions of the planned and scheduled assessments are illegal and unlawful, and students who act outside the law will have to face the consequences of their actions.

“Students further need to note that failing the upcoming academic assessments will directly impact their NSFAS funding status.

“No further funding will be available to NSFAS-funded students who fail the assessments or fail to take the upcoming assessments.”

But, in a statement, members of the South African Student Congress (SASCO) at the university argued that since all assessments had taken place online due to the COVID-19 restrictions, “it is only normal that the exams take place online as well”.

SASCO also argued that some students had not received their allowances from the National Student Financial Aid Scheme (NSFAS) and it would therefore be impossible for them to write their exams in a physical setting.

But Ngowi addressed the matter earlier in the same video: “As previously communicated through the Student Representative Council, NSFAS-funded students who still have unresolved challenges with their accommodation are encouraged to make written submissions to the relevant faculty deans in that regard.”

Park Road police spokesperson Lieutenant Colonel Thabo Covane said members of Public Order Police Unit arrested five male students for public violence at the CUT’s Bloemfontein campus on Thursday morning.

He said the group of protesting students was warned by the operational commander to disperse within a given time as they were contravening the conditions stipulated in an issued court order but refused to do so.

“The protesting students became violent and started throwing stones and bottles at the police and the security officers,” said Covane.

“The police used stun grenades to disperse the crowd. The other group ran into King Edward Street and blocked traffic by placing stones on the road.

“Police then arrested the five students with ages ranging from 18 to 22 years.”

The arrested students are expected to appear in the Bloemfontein Magistrates Court on Monday facing charges of public violence and contravening a court order. – Staff Reporter

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