Cigarette ban generates heat about what’s strictly needed

When the government lodged its application to appeal the Western Cape High Court ruling that the lockdown tobacco ban had violated the constitution, smokers immediately began to get jittery, fearing another ban was imminent.

But the government’s case as set out in its appeal court papers suggests a very different preoccupation.

The Cape Town high court declared that the tobacco ban implemented at the start of the level 3 lockdown last year, which was lifted only in August when restrictions were eased to level 2, had infringed a number of fundamental human rights.

It found that the minister responsible, Nkosazana Dlamini-Zuma, did not have the legal power under the regulations to ban the sale of tobacco to the public.

But the judgment, in a case brought by British American Tobacco SA (Batsa), has much broader implications.

For one thing, its reasoning can be extended to other bans and rules around the movement and sale of goods and services, which means the government would have to heed it when mulling future regulations or face the risk of more court challenges.

Second, the judgment has led to uncertainty because in June last year a full bench of the high court in Pretoria interpreted a crucial section of the Disaster Management Act quite differently to the way the Cape Town court did.

Already, South African Breweries (SAB) has launched an urgent legal attack on the alcohol ban imposed on December 28, echoing some of the arguments of the successful tobacco case.

The SAB case, also in the Western Cape High Court, argues that the alcohol ban is unconstitutional because it violated rights to human dignity, to privacy and to choose a trade, occupation or profession — all rights that were found to have been infringed by that court in the Batsa cigarette case.

In its application for leave to appeal against the tobacco judgment, the government — in the form of Dlamini-Zuma and President Cyril Ramaphosa — said the court was wrong in holding that human dignity and privacy were directly applicable constitutional rights.

What the court should have found, said the government, was that the relevant right was section 22 — the right to choose one’s trade, occupation or profession. Section 22 was in any event not breached by a temporary ban on tobacco sales, the government said, because the right related to choosing a profession, not to practising it, as the high court had found.

The appropriate ground of review was rationality, said the government. It was only if the regulation was irrational in law that a court should set it aside.

In a speech, former Constitutional Court justice Kate O’Regan once described the rationality test thus: “As long as there is some rhyme or reason to what the legislature or executive seeks to do, it will probably pass the rationality test.”

This is a much lower hurdle for the government to meet than a limitation of a constitutional right. Such a limitation would pass muster only if it is justifiable in an open and democratic society based on constitutional values. A court would have to weigh a number of competing concerns, including whether there were other less onerous ways the government could have achieved its purpose.

It was this difference between the rationality test and the rights limitation test that saw the Pretoria high court rule against the Fair Trade Independent Tobacco Association in the case in June, and the Cape Town high court rule in favour of Batsa last month.

However, there was one crucial aspect that both courts looked at — and took very different views on. The Disaster Management Act empowers the government to make regulations and issue or authorise directions that “may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster”.

Though this section is not relevant in the alcohol case — alcohol bans are specifically permitted under their own special section in the act — this catch-all category has been indispensable for the government in its regulation of the disaster.

The Western Cape High Court said the “wide, sweeping and general” powers in the section were “not without limitation”. The regulations or directions must be necessary and the intention must be to limit the impact of disaster or prevent it getting worse.

But the Cape Town court’s interpretation of “necessary” was different to that of the Pretoria court, which was persuaded by the minister’s argument that “necessary” meant “reasonably necessary”.

“Given that an unprecedented disaster had just hit SA requiring swift and effective action from the state, it would be illogical to require the minister to meet a higher threshold (that is, ‘strictly necessary’) and require her to jump through proverbial hoops when the enactment of the regulations was for a laudable purpose and was, in the literal sense, a matter of life and death,” said the Gauteng full bench.

But the Western Cape High Court said this went against an earlier, binding, judgment of the Constitutional Court and was “substantially erroneous”.

In its application for leave to appeal, the government said a restrictive interpretation would “limit unduly the minister’s power to make regulations or issue directions”.

The “conflicting judgments” were another “compelling reason” the appeal should be heard, it said.