The Western Cape High Court has granted Co-operative Governance & Traditional Affairs Minister Nkosazana Dlamini-Zuma leave to appeal its December ruling that found the five-month ban on tobacco sales unconstitutional and invalid.

A Mail & Guardian report says the decision came as little surprise after Judge Tandazwa Ndita two weeks ago told legal counsel for the Minister and British American Tobacco SA (Batsa), which mounted the successful but eventually moot challenge, that there was prima facie reason to allow the matter to proceed to the SCA.

Lawyers for the Minister had submitted that this is to be found in the fact that on 26 June last year, the Gauteng High Court (Pretoria) had come to a different conclusion when it dismissed a challenge to the ban brought by a local industry rival, the Fair-Trade Independent Tobacco Association (Fita).

Fita’s challenge had rested on administrative law, notably the necessity threshold imposed by section 27(2)(n) of the Disaster Management Act. Batsa ventured further and argued that the ban fell foul of both the Constitution and administrative law, the latter to the extent that an appropriate reading of the necessity test was a narrower one than applied by the court in Pretoria.

In the Fita case, a full Bench had construed the test to mean that a particular measure must be "rational and reasonably necessary". The Cape division found that regulation 45, in which the ban was encoded, fell foul of the proportionality test in section 36 of the Constitution, in that the harm caused by the measure outweighed the benefits to the state.

Batsa filed a cross-application for leave to appeal despite the judgment having gone overwhelmingly in its favour. It is challenging the Cape court’s decision not to award a costs order against the Minister.

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