The Western Cape High Court will hear Co-operative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma’s application for leave to appeal its December ruling declaring last year’s five-month tobacco sales ban unconstitutional on 15 February.

According to a notice to both parties, a cross-application by British American Tobacco SA (Batsa) for leave to appeal aspects of the judgment will be heard simultaneously in an hour-long online hearing, notes a Mail & Guardian report. Dlamini-Zuma applied for leave to appeal on 4 January, raising fears in the tobacco industry of a second ban as Covid-19 infections soared in the second wave of the pandemic. It was the last day of the window for leave to appeal and her office insisted that she was not intent on a fresh ban, but instead seeking to take the matter to the SCA for the sake of clarity on the powers conferred by the Disaster Management Act on the government to impose restrictions.

The ruling, handed down on 11 December, was a humiliating loss for Dlamini-Zuma after she had seen off an earlier challenge by the Fair-Trade Independent Tobacco Association in the Gauteng High Court (Pretoria). Batsa went further than its industry rival and successfully argued that the ban had fallen foul not only of administrative law, in that the Minister failed the necessity test, but also of several clauses of the Constitution. A full Bench accepted arguments by Alfred Cockerill SC that the Minister failed to justify the limitations she placed on smokers’ rights to dignity, privacy, physical integrity, and those of tobacco producers to choose their trade. However, in her application, Dlamini-Zuma argues that the earlier judgment in her favour had bound the Western Cape High Court and that it was correct as she had shown a rational link between her aim and her chosen means of arriving there.

The Batsa ruling went in Dlamini-Zuma’s favour on just one point of law, but it was an important one, notes the M&G report. The court rejected the cigarette maker’s argument that the ban was ultra vires, because the Disaster Management Act only expressly provides for restrictions on alcohol sales, saying this strict reading would rob the Minister of the sweeping powers the law rightly confers. The company is seeking to appeal this point, as well as the court’s decision not to award costs against the government. However, its application is conditional on the court granting Dlamini-Zuma leave to appeal.

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