September 29, 2020

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Fight on tobacco ban turns into blame game after judgment

The giant tobacco producer and the government are pointing fingers at each other over the delay of another case that will determine whether or not the ban on the sale of tobacco products should continue.

The blame game between British American Tobacco SA (Batsa) and the government occurred on Friday, the same day the Pretoria High Court made a judgment against the unbanning of the sale of cigarettes.

The Fair Trade Tobacco Association (Fita) had brought the application to force the state to reverse its decision to continue with the ban.

Batsa said the initial agreement was that the Western Cape High Court would hear the case on an urgent basis on June 30, but the postponement to August left the complainant aggrieved and blaming the government.

However, in a statement from Co-operative Governance and Traditional Affairs Minister Nkosazana Dlamini Zuma’s office, the government accused Batsa of having led to the postponement. It said the complainant has not forewarned the state about new evidence, contained in replying papers delivered on Wednesday afternoon.

“Batsa did not forewarn the government that its new papers would contain a new matter, for example, an affidavit by a fresh medical expert relying on, amongst other things, medical literature published before Batsa instituted its challenge in early June,” read the government statement.

The government said parties had agreed the matter be heard on June 30.

However, the state was taken aback on receiving the replying papers, which it said contained a substantial new matter, including affidavits from two new experts.

“The government would be considering the new matter and its ramifications and will suggest a way forward as soon as practically possible; in the circumstances, it is unlikely the matter will be ripe for hearing on 30 June.

“The State Attorney’s letter to the Judge President concluded with a request that, given the urgency and importance of the matter, it be heard on 5 and 6 August,” read the statement.

It said the government did not have control over the scheduling of court hearings and that it was Western Cape Judge President John Hlophe alone who decided that the matter should be heard in early August.

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Batsa blamed Cogta and President Cyril Ramaphosa for the postponement, adding that the prolonged ban would lead to the fiscus losing more than R1.4 billion “in excise tax alone as the massive cigarette trade tightens its grip on the country”.

“By the time the case is heard the ban will have been in place for four and half months during which time billions of illegal cigarettes will have been sold.

“Thousands of jobs stand to be lost in the economy as criminality becomes the new normal. We are considering all our legal options and will be liaising directly with the government, as we had both previously agreed that the matter was urgent and needed to be heard next Tuesday,” said Batsa spokesperson Johnny Moloto.

The court had dismissed Fita’s demand that the tobacco products should be classified as essential products and therefore be unbanned during the lockdown period.

Fita had said since cigarettes and tobacco products were addictive, their withdrawal could lead to serious physical, psychological and emotional harm for smokers.

The judgment said tobacco products were “plainly not food, cleaning and hygiene products, fuel and clearly not medical products. They would constitute ‘essential goods’ only if they could be considered ‘basic goods’ akin to airtime and electricity,” read the judgment.

Chairperson Sinenhlanhla Mnguni said Fita was studying the judgment and they would then decide on the next course of action after consultation with their legal team.

When asked if Fita would take the matter further, Mnguni said “definitely. We have 11 million smokers in the country so naturally it would not only be people who represent Fita that are disappointed, but I think millions of people are disappointed about the outcome.”

Political Bureau