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JUST IN: FITA lose cigarette ban court case

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FIta has lost its case. The application to have the cigarette ban lifted has been dismissed by the Gauteng North High Court.

The court says that FITA’s argument that cigarettes ought to have been considered “essential” because they are additive has no merit. The fact that a substance is addictive does not render it essential. “We, therefore, find no basis on which to interpret the level five regulations as permitting the sale of tobacco products.

See the full case statement below:

                                                                          1
                     IN THE HIGH COURT OF SOUTH AFRICA
                        GAUTENG DIVISION PRETORIA
                                                         CASE NO: 21688/2020

(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: YES

…………..…………………….
SIGNATURE DATE: 26 June 2020

In the matter between:

FAIR-TRADE INDEPENDENT TOBACCO APPLICANT
ASSOCIATION

and

PRESIDENT OF THE REPUBLIC OF FIRST RESPONDENT
SOUTH AFRICA

MINISTER OF CO-OPERATIVE GOVERNANCE SECOND RESPONDENT
AND TRADITIONAL AFFAIRS

                               JUDGMENT

2

THE COURT

INTRODUCTION
[1] South Africa, like the rest of the world, faces an unprecedented crisis following the
invasion of the COVID-19 virus, which poses a clear and present danger to human life.
Through the Disaster Management Act1 (“the Act”), the Government has imposed various
measures in an effort to combat the virus and contain its escalation. In particular, the
second respondent, the Minister of Cooperative Governance and Traditional Affairs (“the
Minister”) promulgated regulations pursuant to section 27(2) of the Act, which, amongst
others, prohibit the sale of tobacco products, e-cigarettes and related products as part of
the measures introduced to curb the escalation of the COVID-19 virus.

[2] The applicant, Fair-Trade Independent Tobacco Association (“FITA”) takes issue
with the prohibition on the sale of tobacco products and seeks an order declaring that:

        2.1 cigarettes and tobacco products are essential goods in Annexure B (regulation
        11A) of the regulations published in Government Gazette No.43148 on 25 March
        2020 (“the level five regulations”);
        2.2 regulation 27 of the regulations published in Government Gazette No 43258
        on 29 April 2020 (“the level four regulations”) is invalid, alternatively is reviewed
        and set aside;
        2.3 regulation 45 of the regulations published in Government Gazette No 43364
        on 28 May 2020 (“the level three regulations”) is invalid to the extent that the sale
        of tobacco products are prohibited, alternatively is reviewed and set aside;
        2.4 the sale of tobacco products and cigarettes is lawful.
  1   Act 57 of 2002.

3

FACTUAL BACKGROUND
[3] On 15 March 2020, the Minister, as the Minister designated to administer the Act,
declared a national state of disaster in terms of section 27(1) of the Act. On the same
day, Cabinet decided that all Cabinet members who have a role to play in the disaster the
country is facing, would form part of a National Coronavirus Command Council (“NCCC”).
The NCCC is a Cabinet structure established and mandated to coordinate the work that
would be required to manage the state of national disaster.

[4] Section 27(2) of the Act empowers the Minister to make regulations concerning
inter alia, the regulation of the movement of persons and goods. On 18 March 2020, the
Minister issued the initial regulations after consulting with the relevant Ministers.
Following consultation with the NCCC, the President2 announced on 23 March 2020 that
a nation-wide lockdown would be imposed, beginning on 26 March 2020 and ending on
16 April 2020. On 9 April 2020, the President announced that the lockdown period would
be extended until the end of April 2020.

[5] To govern the lockdown period, the amended lockdown regulations were published
on 25 March 2020. These regulations imposed stricter limitations on the movement of
persons and goods, and the provision of services during the initial level five lockdown.
The regulations provided that only businesses involved in the provision of essential goods
and services may operate during the level five lockdown period. Tobacco products
including cigarettes were not regarded as “essential items” within the meaning of the level
five regulations.

[6] On 23 April 2020, the President addressed the nation regarding the approach to
be followed after the level five lockdown and announced that beyond Thursday 30 April
2020, a gradual and phased recovery of economic activity would begin. A risk adjusted
strategy would be implemented to ease the lockdown restrictions. In terms of the strategy
there would be five levels:

  2   President of the Republic of South Africa, Mr. Cyril Ramaphosa.

4

   6.1 Level five means that drastic measures are required to contain the spread of
   the virus to save lives;
   6.2 Level four means that some activity can be allowed to resume, subject to
   extreme precaution required to limit community transmission and outbreaks;
   6.3 Level three means the easing of some restrictions including on work and social
   activities, to address a high risk of transmission;
   6.4 Level two involves a further easing of restrictions but the maintenance of
   physical distancing and restrictions on some leisure and social activities to prevent
   a resurgence of the virus;
   6.5 Level one means that more normal activity can resume, with precautions and
  health guidelines followed at all times.

[7] The President stated that the NCCC would determine alert levels based on an
assessment of the infection rate and the capacity of our healthcare system to provide
care to those who need it. In his address, the President stated that during level four, the
sale of cigarettes would be permitted.

[8] On 25 April 2020, the Minister briefed the media regarding the implementation of
the Risk Based Model for Economic Activity, and advised South Africans to send their
inputs into the risk adjusted strategy for consideration prior to the finalization of the
regulations. The closing date for the submission of inputs was midday on Monday
27 April 2020.

[9] A “draft framework for consultation” was made publicly available during the course
of Saturday, 25 April 2020 (“the draft framework”), and it indicated that tobacco products
would be permitted to be sold under level four. Sectors, business organisations, trade
unions and members of the public were invited to submit comments on the draft
framework. The Minister states that the indication in the draft framework that the sale of
tobacco products would be permitted, was a “proposal” on which comments were sought.
5

[10] At the media briefing on 25 April 2020, the Minister stated that there would still be
discussions on the tobacco issue after consultation. Tens of thousands of people took
up the invitation to comment on the draft framework. FITA itself specifically made
comprehensive submissions geared at persuading the Government not to prohibit
tobacco sales under level four.

[11] On 29 April 2020, the Minister promulgated new regulations under the Act (“the
level four regulations”) to govern the post level five lockdown period, which set out the
approach to be followed during level four, and applicable from 1 May 2020. The level four
regulations allowed for both “essential” and “permitted” goods to be sold, but expressly
excluded tobacco products. Regulation 27 of the level four regulations provided that the
sale of “tobacco, tobacco products, e-cigarettes and related products” was prohibited
during alert level four. The Minister announced this prohibition in a televised address on
29 April 2020, being the publication date of the level four regulations.

[12] On 28 May 2020, the level three regulations were promulgated. The level three
regulations add a new chapter four which sets out the approach to be followed during
level three and applicable from 1 June 2020 until such time as a different level is declared.
Regulation 45 of the level three regulations provides that “the sale of tobacco, tobacco
products, e-cigarettes and related products is prohibited, except for export”.

THE RULE OF LAW
[13] As foreshadowed in the introduction above, FITA challenges the prohibition of the
sale of tobacco products and cigarettes. Its overarching challenge to the decision to
promulgate regulations 27 and 45 is firmly located in the rule of law concept in that it
impugns the rationality underpinning that decision. FITA criticises the promulgation of
regulations 27 and 45, which outlaw of the sale of cigarettes and tobacco products, based
on the health hazards associated with tobacco use or smoking, as being misguided.
According to FITA such health hazards cannot justify the total prohibition of cigarettes
and tobacco sales. FITA’s case reduced to its bare essentials is that the ends sought to
be achieved by the Minister bear no relationship to the means adopted by her.
6

[14] FITA’s criticism of the Minister’s decision and overarching basis for launching this
application is appropriately captured in the following passage in the supplementary
founding affidavit:

     “[a]part from there being no rational basis for the prohibition …, there has been no
     consideration given to proportionality. The prohibition is also out of step with the vast
     majority of countries throughout the world. There is also not any rational consideration
     given to the enormous harm that has been and continues to be occasioned to not only the
     economy, employment, livelihoods, but also to the health and safety of individuals. It is
     undeniable that simply and summarily preventing smokers and users of tobacco products
     from using these products gives rise to very serious physical and emotional adverse
     consequences. This leads to many users resorting to illicit non-regulated products that
     pose a significant health hazard. The attitude of the Second Respondent (who has no
     basis for her bold clearly uninformed statements) in relation to these issues is high-handed
     and amounts to executive overreach.”

[15] Mr. Subel, counsel for FITA, submitted during oral argument that the basis of the
challenge against the Minister’s decision to promulgate the two regulations (and
effectively outlawing the sale of tobacco products) is founded on the legality principle in
that banning the sale of cigarettes and tobacco products bears no rational relationship to
curbing the spread of the COVID-19 virus. This being the foundational basis of the
application, clearly therefore the impugned conduct is executive action, even though
FITA’s counsel didn’t go this far in clarifying the ambit of this application. This is conduct
that is susceptible to legal challenges founded on the rationality standard which is in turn
founded in the principle of legality. It is not administrative conduct which should be
challenged under the Promotion of Administrative Justice Act3 (“PAJA”). FITA’s counsel
confirmed this much during argument — that this is not a constitutional challenge nor was
it reliant on PAJA.

3 Act 3 of 2000.
7

CONSTITUTIONAL PRINCIPLES
[16] An important foundational value of our constitutional democracy is founded on the
supremacy of the Constitution and the rule of law.4 This implies that it is a fundamental
principle of our law that the exercise of public power must comply with the law and the
Constitution.5 Accepting that the Minister may exercise no power and perform no function
beyond that conferred upon her by the empowering Act6 and that her actions must be
rationally related to the purpose for which the power was conferred and exercised, the
question arises whether the decision of the Minister in imposing a ban on the sale of
tobacco products and cigarettes in the regulations is rationally related to the purpose for
which the power was given in terms of section 27 of the Act.

[17] This calls for an objective enquiry as explained by the Constitutional Court in
Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte
President of the Republic of South Africa and Others:7

   ”[85] It is a requirement of the rule of law that the exercise of public power by the Executive
   and other functionaries should not be arbitrary. Decisions must be rationally related to the
   purpose for which the power was given, otherwise they are in effect arbitrary and
   inconsistent with this requirement. It follows that in order to pass constitutional scrutiny the
   exercise of public power by the Executive and other functionaries must, at least, comply
   with this requirement. If it does not, it falls short of the standards demanded by our
   Constitution for such action.

4 In State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC)
the Constitutional Court explained: “[38] There is nothing startling in this proposition — it is a
fundamental principle of the rule of law, recognised widely, that the exercise of public power is only
legitimate where lawful. The rule of law — to the extent at least that it expresses this principle of
legality — is generally understood to be a fundamental principle of constitutional law. This has been
recognised in other jurisdictions. In The Matter of a Reference by the Government in Council
Concerning Certain Questions Relating to the Secession of Quebec from Canada the Supreme Court
of Canada held that:
‘Simply put, the constitutionalism principle requires that all government action comply with the
Constitution. The rule of law principle requires that all government action must comply with the law,
including the Constitution.”
5 Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council

and Others 1999 (1) SA 374 (“Fedsure”) at para 56.
6 Ibid at para 58.
7 2000 (2) SA 674 (“Pharmaceutical”).
8

   [86] The question whether a decision is rationally related to the purpose for which the
   power was given calls for an objective enquiry. Otherwise a decision that, viewed
   objectively, is in fact irrational, might pass muster simply because the person who took it
   mistakenly and in good faith believed it to be rational. Such a conclusion would place form
   above substance and undermine an important constitutional principle.” 8

[18] The enquiry does not, as explained by the Constitutional Court in Albutt v Centre
for the Study of Violence and Reconciliation and Others,9 extend to an interrogation of
whether other or better means could have been used to achieve the purpose for which
the power was given:

   “[51] The Executive has a wide discretion in selecting the means to achieve its
   constitutionally permissible objectives. Courts may not interfere with the means selected
   simply because they do not like them, or because there are other more appropriate means
   that could have been selected. But, where the decision is challenged on the grounds of
   rationality, courts are obliged to examine the means selected to determine whether they
   are rationally related to the objective sought to be achieved. What must be stressed is
   that the purpose of the enquiry is to determine not whether there are other means that
   could have been used, but whether the means selected are rationally related to the
   objective sought to be achieved. And if, objectively speaking, they are not, they fall short
   of the standard demanded by the Constitution.”10

Or, as Professor Hoexter puts it:

8 The Constitutional Court in Masetlha v President of the Republic of South Africa and Another 2008
(1) SA 566 (CC) (“Masetlha”) explains: “[80] Although within the context of ministerial regulation-making
power, Ngcobo J restates the rationality test in the following terms:
The exercise of public power must therefore comply with the Constitution, which is the supreme
law, and the doctrine of legality, which is part of that law. The doctrine of legality, which is an
incident of the rule of law, is one of the constitutional controls through which the exercise of public
power is regulated by the Constitution. It entails that both the Legislature and the Executive ‘are
constrained by the principle that they may exercise no power and perform no function beyond that
conferred upon them by law’. In this sense the Constitution entrenches the principle of legality and
provides the foundation for the control of public power… The exercise of such power must be
rationally related to the purpose for which the power was given… As long as the regulation of the
practice, viewed objectively, is rationally related to the legitimate government purpose, a court
cannot interfere simply because it disagrees with it or considers the legislation to be inappropriate.”
9 2010 (3) SA 293 (CC) (“Albutt”).
10 Court’s emphasis.
9

    “A fundamental limitation is that the focus of review is essentially on legality of a decision
    rather than its merits: a court of review is not supposed to approve or disapprove of the
    decision but merely to consider whether it was arrived at in an acceptable fashion”.11

[19] The legality principle is an incident of the rule of law, which is one of the
constitutional controls on the exercise of public power. The Constitutional Court in
Pharmaceutical12 pointed out that the rule of law requires that the exercise of public power
should not be arbitrary but rather must be rationally related to the purpose for which the
power was exercised. The Constitutional Court made it clear that rationality was a
minimum threshold requirement applicable to the exercise of all public power by members
of the Executive and other functionaries.13

[20] In simple terms, the rationality standard requires that a decision taken by the
executive ought to be in line with the purpose for which the power was given and if the
requisite synergy between the decision and purpose is absent, the decision cannot be
held to be rational and therefore falls short of the constitutional standard espoused by our
apex Court. Importantly, in order to pass the test for rationality, there must be a rational
connection between the impugned decision and the purpose sought to be achieved
through such decision.

[21] In Affordable Medicines Trust and Others v Minister of Health and Another,14 the
Constitutional Court explained the role of the rule of law as a form of constitutional control
on the exercise of public power as follows:

    “[48] Our constitutional democracy is founded on, among other values, the ‘(s)upremacy
    of the Constitution and the rule of law’. The very next provision of the Constitution declares
    that the ‘Constitution is the supreme law of the Republic; law or conduct inconsistent with
    it is invalid’. And to give effect to the supremacy of the Constitution, courts ‘must declare
    that any law or conduct that is inconsistent with the Constitution is invalid to the extent of

11 Cora Hoexter Administrative Law in South Africa 2nd edition p 61.
12 Supra at para 85.
13 Ibid at para 90.
14 2006 3 SA 247 (CC) (“Affordable Medicines Trust”).
10

    its inconsistency’. This commitment to the supremacy of the Constitution and the rule of
    law means that the exercise of all public power is now subject to constitutional control.
    [49] The exercise of public power must therefore comply with the Constitution, which is
    the supreme law, and the doctrine of legality, which is part of that law. The doctrine of
    legality, which is an incident of the rule of law, is one of the constitutional controls through
    which the exercise of public power is regulated by the Constitution. It entails that both the
    Legislature and the Executive ‘are constrained by the principle that they may exercise no
    power and perform no function beyond that conferred upon them by law’. In this sense the
    Constitution entrenches the principle of legality and provides the foundation for the control
    of public power.”

[22] In Bel Porto School Governing Body and Others v Premier of the Western Cape
Province and Another,15 the Constitutional Court (quoting from Prinsloo v Van der Linde
and Another)16 confirmed that it falls beyond a Court’s powers to prefer a means that it
regards would have resulted in a better outcome:

    “[41] (A) person seeking to impugn the constitutionality of a legislative classification cannot
    simply rely on the fact that the State objective could have been achieved in a better way.
    As long as there is a rational relationship between the method and object it is irrelevant
    that the object could have been achieved in a different way.”

[23] In a similar vein, the Constitutional Court in Merafong Demarcation Forum and
Others v President of the Republic of South Africa and Others17 stated:

    “[62] The exercise of public power has to be rational. In a constitutional state arbitrariness
    or the exercise of public power on the basis of naked preferences cannot pass muster.
    Judgments of this Court suggest that, objectively viewed, a link is required between the
    means adopted by the legislature and the end sought to be achieved. The fact that
    rationality is an important requirement for the exercise of power in a constitutional state
    does not mean that a court may take over the function of government to formulate and
    implement policy. If more ways than one are available to deal with a problem or achieve

15 2002 (3) SA 265 (CC) (“Bel Porto”).
16 Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC) (“Prinsloo”) at para 36.
17 2008 (5) SA 171 (CC) (“Merafong”).
11

     an objective through legislation, any preference which a court has is immaterial. There
     must merely be a rationally objective basis justifying the conduct of the legislature.
     Provided a legitimate public purpose is served, the political merits or demerits of disputed
     legislation are of no concern to a court. In Pharmaceutical Manufacturers Chaskalson, P
     made it clear that the rationality standard does not mean that courts can or should
     substitute their opinions for the opinions of those in whom the power has been vested. A
     court cannot interfere with a decision simply because it disagrees with it or considers that
     the power was exercised inappropriately.”

[24] And in a separate concurrence with the majority, Ngcobo J held that:

     “[274] It is true, there might have been other options that could have been adopted to avoid
     the consequences feared by the Committee. But that is not the issue. It is not for this
     Court to tell the Legislature how it should have accommodated the views of the majority
     of the residents of Merafong while at the same time achieving the objectives of the
     Bill. That is for the Legislature to decide. In Pharmaceutical Manufacturers and in UDM
     2 we pointed out that rationality is a minimum requirement for the exercise of legislative
     power. This standard does not permit us to substitute our opinions as to what is
     appropriate for the opinions of the Legislature. Once it is established that the purpose
     sought to be achieved is within the authority of the Legislature, and as long as the
     Legislature’s decision, viewed objectively, is rational, we cannot interfere with that decision
     simply because we disagree with it or because we consider that the power was exercised
     inappropriately.”18

[25] The requirement of rationality is thus not a particularly stringent test and should
also not be conflated with the requirement of reasonableness, even in those cases in
which a law or the exercise of a public power infringes a fundamental right. This was
confirmed by the Constitutional Court in Law Society of South Africa and Others v Minister
for Transport and Another: 19

     “[34] It is by now well settled that where a legislative measure is challenged on the ground
     that it is not rational, the court must examine the means chosen in order to decide whether
     they are rationally related to the public good sought to be achieved.”

18 Ibid at para 274.
19 2011 (1) SA 400 (CC) (“Law Society of South Africa”)
12

And that –

     “[35] … the requirement of rationality is not directed at testing whether legislation is fair or
     reasonable. Nor is it aimed at deciding whether there are other or even better means that
     could have been used. Its use is restricted to the threshold question whether the measure
     the lawgiver has chosen is properly related to the public good it seeks to realise. If the
     measure fails on this count, that is indeed the end of the enquiry. The measure falls to be
     struck down as constitutionally bad.”

[26] In the final analysis, the exercise of power, as with the exercise of all forms of State
power, is limited by the Constitution. This is one of the cardinal hallmarks of a vigorous
democracy. Any exercise of public power that is irrational and therefore breaches the
principle of legality being a founding principle of the Constitution, is ultra vires and must
therefore be found to be unlawful. Ultimately in this matter, our Constitution requires that
the regulations, being legislation, be rationally related to a legitimate governmental
purpose. If not, they are inconsistent with the rule of law and therefore invalid.20 It is
through this prism that we consider the challenge to the Minister’s decision to ban the
sale of tobacco products through regulations 27 and 45.

EVALUATION
[27] As such, the question should plainly be whether the Minister, in placing a ban on
the sale of tobacco products in response to the COVID-19 pandemic, acted irrationally
and in so doing breached the principle of legality.

[28] In determining whether a link exists between the purpose and the means chosen
to achieve such purpose, it should be reiterated that the means opted for by the Minister
need not be the best nor the most suitable means through which the purpose may have
been attained as the discretion to choose suitable means is that of the repository of public
power.21 The exercise of the Minister’s public power in this regard is not susceptible to
review on the ground of irrationality unless there is no rational link between the chosen

20 Pharmaceutical supra at para 85.
21 See Albutt supra at para 51.
13

means and the objective for which power was conferred. All that we have to determine
as a Court is whether a rational connection between a legitimate governmental purpose
(i.e. containing the spread of the virus and saving lives) and the means chosen (i.e.
banning the sale of all tobacco products) exists.

[29] It is against this backdrop that the rationality of the Minister’s decision to ban the
sale of tobacco products has to be determined. If the end sought to be achieved by
imposing a ban on the sale of all tobacco products is to “save lives and health and to
reduce the potential strain on the health care system”, does the ban, as the means
adopted by the Minister, assist in achieving the stated objective? Put differently, is there
a rational connection between a legitimate governmental purpose (i.e. saving lives and
health and preventing the overwhelming of the country’s health care facilities) and the
means chosen (banning the sale of all tobacco products)? A related question is whether
the evidence relied on by the Minister sufficiently justifies her decision to ban the sale of
tobacco products and cigarettes.

[30] It is correct that on 23 April 2020, during a televised address to the nation the
President seemingly gave the greenlight for the sale of tobacco products by announcing
that during level four of the national lockdown, tobacco products would be sold. However,
the new regulations, promulgated by the Minister on 29 April 2020, particularly regulation
27, appeared to be at odds with the President’s announcement on the sale of tobacco
products as these new regulations expressly prohibited the sale of all tobacco products
and cigarettes during alert level four.

[31] The Minister explains that the President’s statement (which was the same as what
was contained in the draft framework) that under level four, tobacco products would be
permitted to be sold, was a mere “proposal” which was still subject to further
consideration. She explains that the decision to impose the ban on the sale of all tobacco
products (notwithstanding the President’s announcement) came after careful
consideration of not only the public comments and submissions received but relevant
medical literature and that this decision was endorsed by the NCCC and Cabinet.
14

[32] The Minister also confirms that regulation 45 of the level three regulations was a
decision separate from the decision to promulgate regulation 27 given that the decision
to promulgate regulation 45 was informed by additional medical literature which only
came to the Minister’s attention after regulation 27 was promulgated and was not a
decision arbitrarily arrived at by her despite the President’s announcement.

[33] Although FITA endeavours to exploit this seeming difference between the Minister
and the President, no basis has been laid upon which to reject the Minister’s contention
that the President’s statement was nothing more than a “proposal” and that the issue was
still subject to further consultation and discussion.

RATIONALE FOR THE DECISION
[34] The primary reason provided by the Minister for the decision to promulgate
regulation 27 and ban the sale of tobacco products was “to protect human life and health
and to reduce the potential strain on the health care system.” This in turn will ensure that
our healthcare facilities are not overwhelmed to the extent that those in need will be
denied access to healthcare. The Minister refers to the general status quo that COVID-
19 is a worldwide pandemic that has infected and killed hundreds of thousands of people
globally.

Healthcare facilities
[35] The Minister also refers to the reality that South Africa faces as a developing
country that has a shortfall of essential healthcare resources such as ventilators and ICU
facilities. It is estimated in a report from the Department of Health that South Africa has
less than half the ventilators that the Health Department estimates will be needed to treat
patients at the peak of the COVID-19 virus crisis. It is furthermore estimated that between
25,000 and 70,000 hospital beds would be required for COVID-19 patients at the
epidemic’s peak, and between 4,000 and 14,000 ICU beds.22 The Minister asserts that
this reality, which is uncontested, places a duty upon her as part of Government to take

22https://www.medicalbrief.co.za/archives/sa-has-less-than-half-the-ventilators-it-will-need-says-

health-department/
15

measures that would prevent an unnecessary strain on these scarce healthcare facilities
to ensure that COVID-19 virus patients have access to such facilities.

The impact of smoking
[36] As part of her thinking about how she could fulfill her constitutional responsibilities
towards dealing with this pandemic, the Minister considered the impact of smoking on the
general health system of the country. She points out that, although studies around the
potential link between the use of tobacco products and COVID-19 are still being
undertaken, from the medical literature that has been consulted by her thus far, the
evidence shows that the use of tobacco products increases not only the risk of
transmission of COVID-19, but also the risk of developing a more severe form of the
disease. The authorities relied on by the Minister to this end conclude that smoking is a
risk factor for progression of COVID-19, with smokers having higher odds of COVID-19
progression than non-smokers. The evidence further shows that smokers are 1.4 times
more likely than non-smokers to have severe symptoms and are 2.4 times more likely to
be admitted to ICU, and to require medical ventilation or die when compared to non-
smokers. The Minister submits that these are serious figures which she, as a responsible
decision-maker, cannot in good conscience ignore.

[37] The Minister further states that available studies conducted by the World Health
Organization (“the WHO”) also suggest that — though not as yet conclusive as research
is ongoing — smokers are at a higher risk of developing severe diseases and death.23 In
the 11 May 2020 report conducted by the WHO, it is stated that “tobacco smoking is a
known risk factor for many respiratory infections and increases the severity of respiratory
diseases.” The same report mentions that a review of studies by public health experts
convened by the WHO found that smokers are more likely to develop severe disease with
COVID-19 when compared to non-smokers. This report also confirms that the COVID-
19 virus “is an infectious disease that primarily attacks the lungs” and that “smoking
impairs lung function making it harder for the body to fight off coronaviruses and other

23 The World Health Organization is a specialized agency of the United Nations responsible for
international public health.
16

diseases.” This report also states that smokers with conditions such as cardiovascular
diseases, cancer, respiratory disease and diabetes are at a higher risk of developing
severe illness when affected by the COVID-19 virus.

[38] Referring to a further report dated 26 May 2020, the WHO records that “the
available evidence suggests that smoking is associated with increased severity of disease
and death in hospitalized COVID-19 patients.” Relying on expert reports and opinions
from various experts, the Minister submits that the overall consensus is that there is a
“clear association” between cigarette smoking and poor outcomes in COVID-19 and that
“the weight of the available evidence confirmed that smoking was associated with severe
COVID-19 disease notwithstanding outlier studies that found otherwise.” On the authority
of the various expert views and opinions, the Minister concludes that smoking is a risk
factor for the progression of COVID-19 with smokers having up to twice the odds of
COVID-19 progression.24

[39] The Minister also refers to the findings by the Human Sciences Research Council
(“the HSRC”), in terms of which it is stated that, assuming that 1% of South Africa’s
estimated 8 million smokers were infected by the COVID-19 virus and 5% of these
required ICU or high care facilities, the healthcare system would not be able to cope. The
applicant did not engage with this assertion, preferring to characterize it as unproven and
fanciful but proffering no factual foundation for this assertion.

[40] FITA takes issue with the expert reports, medical literature and other
documentation referred to by the Minister contending that such material is inadequate
and does not support her decision to ban the sale of tobacco products. FITA further
contends that the Minister ignored material that propounded a view contrary to that relied
upon by her. In this regard FITA contends that the Minister disregarded a whole body of
empirical evidence that negated her position of accelerated COVID-19 virus progression

24The expert views and opinions relied on by the Minister are sourced from – Professor London, a
Professor at the School of Public Health and Family Medicine at the University of Cape Town; Professor
Nyamande, the Head of the Department of Pulmonology at the Nelson R Mandela School of Medicine;
and Dr Egbe, the Head of the Tobacco Control Unit of the South African Medical Research Council.
17

amongst smokers. FITA would therefore have this Court undertake an exercise that
entails evaluating each side’s material and then express an opinion as to which material
is more cogent and persuasive than the other, especially relating to the question whether
there is a conclusive link between smoking and COVID-19 progression.

[41] The exercise that FITA would have us undertake is not countenanced by the
principle of legality. The question before us is not whether the evidence; medical literature
and research relied on by the Minister is so cogent and conclusive as to establish a
substantive or direct link with higher COVID-19 disease progression in smokers when
compared with non-smokers. Our task is to determine whether such evidence provides
a sufficient rational basis for the Minister to outlaw the sale of tobacco products and
cigarettes, as a means of curbing the COVID-19 virus spread and preventing a strain on
the country’s health care facilities. Although a legitimate governmental purpose may
exist, if the evidence relied on does not speak to the objective sought to be achieved by
imposing the ban, the exercise of public power through the tobacco ban may very well be
arbitrary and stand to be set aside. It is not our task, in line with the principle of legality,
to undertake an in-depth comparison as to which of the parties’ medical research reports
and opinions are better or more cogent than that of the other.

[42] We hold the view that a vigorous attempt to contain the spread of the virus at all
costs had to be made especially bearing in mind the high COVID-19 mortality rates and
the fact that, as a developing country with limited resources as well as an already
overwhelmed healthcare system, South Africa is ill-equipped to survive the full brunt of
the pandemic at its peak if no concerted efforts are made to contain the virus. In line with
its constitutionally mandated duties to preserve life and provide adequate health care, the
State was under a duty to adopt measures to ensure that the already fragile healthcare
system was not overwhelmed even further.

[43] In our view, the medical material and other reports, inclusive from the WHO,
considered by the Minister, though still developing and not conclusive regarding a higher
COVID-19 virus progression amongst smokers compared to non- smokers, provided the
18

Minister with a firm rational basis to promulgate regulations 27 and 45, outlawing the sale
of tobacco products and cigarettes. This in our view is a properly considered rational
decision intended to assist the State in complying with its responsibilities of protecting
lives and thus curbing the spread of the COVID-19 virus and preventing a strain on the
country’s healthcare facilities.

[44] A further aspect relied upon by the Minister is the conclusion reached in the HSRC
report to the effect that, since the introduction of the lockdown and outlawing the sale of
tobacco products, 88% of smokers had not been able to buy cigarettes during level five
of the lockdown which is indicative of the fact that the ban was effective in reducing access
to cigarettes and in turn, use. Although a study conducted by the University of Cape Town
(“the UCT study”) and relied upon by FITA shows that 90% of smokers had purchased
cigarettes during lockdown, even this report indicates that a percentage of smokers have
given up smoking. As such, both studies relied on indicate that, overall, the ban on
tobacco sales has been effective in reducing access to cigarettes and as a result, effective
in reducing smoking overall. Given the link between the adverse effects of COVID-19
and smoking, it can be said that the objective of containing the virus through imposing the
ban on the sale of tobacco products was achieved.

Better means to achieve the objective?
[45] Could the Minister have tendered “better, more convincing” and “less limited”
evidence? Perhaps.25 But this is not the question before us.26 As pointed out by the
Minister in her papers, it is not for this Court to determine which of the various studies
and reports are “better evidence” and could have led to the adoption of “better means”.
The question is rather whether the evidence considered by the Minister as it stands
provides a rational basis for the prohibition. Put differently, the question before the Court
is rather, having regard to the evidence considered and relied on by the Minister, could it

25 Given that COVID-19 is a novel virus and research regarding the association between smoking and
Covid-19 is still evolving, it would be understandable that “better, more convincing” evidence cannot at
present be tendered.
26 Law Society of South Africa supra at paras 34-5.
19

be said that there is enough to conclude that the prohibition placed on the sale of tobacco
products is justified? In our view the answer is clearly in the affirmative.

[46] We must also point out at this juncture the relevant and important principle that
where the decision in question relates to technical subject matter, a Court must exercise
a measure of judicial deference when assessing whether the impugned decision is
irrational.27 As a separate and distinct branch of government, it is important for the
judiciary to remain cognizant of the nuanced role that it plays as a custodian of the law
and not overreach and thus exceed the limits of judicial authority so as to not offend the
doctrine of separation of powers. In Van Rooyen v The State and Others (General
Council of The Bar of South Africa Intervening)28 the Constitutional Court held that —

    “[48] In a constitutional democracy such as ours, in which the Constitution is the supreme
    law of the Republic, substantial power has been given to the Judiciary to uphold the
    Constitution. In exercising such powers, obedience to the doctrine of the separation of
    powers requires that the Judiciary, in its comments about the other arms of the State,
    show respect and courtesy, in the same way that these other arms are obliged to show
    respect for and courtesy to the Judiciary and one another. They should avoid gratuitous
    reflections on the integrity of one another.”

[47] In Minister of Health v Treatment Action Campaign (No 2)29 the Constitutional
Court similarly held:

    “[38] Courts are ill-suited to adjudicate upon issues where Court orders could have multiple
    social and economic consequences for the community. The Constitution contemplates
    rather a restrained and focused role for the Courts, namely, to require the State to take
    measures to meet its constitutional obligations and to subject the reasonableness of these
    measures to evaluation... In this way the judicial, legislative and executive functions
    achieve appropriate constitutional balance.”

27 See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC) (“Bato Star”)
at para 48.
28 2002 (5) SA 246 (CC).
29 Minister of Health and Others v Treatment Action Campaign and Others II 2002 (5) SA

721 (CC) (“Treatment Action Campaign”).
20

[48] It is therefore important for the Court, in considering the rationality of the decision
taken by the Minister, to bear in mind that the rationality standard does not mean that as
Courts we can or should substitute the executive’s decision for what we would prefer or
view as appropriate. Rather, it is important to be guided by the fact that —

    “[56] The discretion to choose suitable means is that of the repository of public power.
    The exercise of that discretion is not susceptible to review on the ground of irrationality
    unless there is no rational link between the chosen means and the objective for which
    power was conferred.”30

[49] The Minister states that she did consider alternative measures such as reduced
trading hours for the sale of tobacco products similar to what was done in the case of
alcohol. She concluded that reducing the trading hours for tobacco products was
ultimately considered to not have the same efficacy given that persons using tobacco
products remained at risk of contracting a more severe form of COVID-19 regardless of
the trading hours thereby increasing the strain on the healthcare system.

[50] The question before us is not so much whether the Minister could have adopted
less restrictive means. The question that is before us is rather whether the means used
were rational and not whether other or better-suited means could have been adopted by
the Minister. We find that the argument on potentially less restrictive measures tendered
by FITA is misplaced given that in terms of rationality review, the question is not whether
better, or less restrictive means could have been adopted but rather whether the means
that were adopted forged a rational connection with the intended end.31 We find that here
too, the means adopted do indeed forge a rational connection with the intended end.
Although much was made by FITA regarding the limited nature of the Minister’s evidence,
in terms of the test for rationality, the Minister’s evidence does not have to be infallible.

30 Minister of Constitutional Development and Another v South African Restructuring and Insolvency
Practitioners Association and Others 2018 (5) SA 349 (CC) (“Minister of Constitutional Development”).
31See Albutt supra at para 51.
21

The same can be said in response to the contention that the ban on the sale of tobacco
products was not effective given that not all smokers ceased smoking as a result of the
ban. Again, the means adopted by the Minister in ensuring that smokers ceased smoking
may not have been the most effective or the best means possible but, the test for
rationality is not concerned with this. In terms of the rationality inquiry, there merely needs
to be a rationally objective basis justifying the conduct of the Minister. Once this hurdle
is overcome, the conduct of the Minister is deemed rational. As it was pointed out during
oral argument on behalf of the Minister, her task involved striking a balance between a
number of complex economic, medical and social considerations in order to protect the
public from the devastating effects of the pandemic and this entailed making informed
policy choices, which in our view, she did in this matter.

Objective rationality
[51] FITA contended, as pointed out above, that the Minister, in arriving at the decision
to impose the ban, failed to consider all relevant and competing “empirical” evidence.
FITA contends that the Minister “simply cherry-picked that which suits her agenda but
which has no probative value and disregarded much that is relevant.” In particular, FITA
argues that the Minister failed to consider a considerable body of empirical medical
literature that concludes that there is no evidence of a link between smoking and COVID-
19 as well as that which shows an inverse link i.e. that nicotine usage can protect smokers
from the COVID-19 virus.

[52] In her answering affidavit the Minister explains that she considered the evidence
FITA relies on, assisted by her experts. According to the Minister none of these
documents provide a basis that there is no evidence of a link between smoking and the
COVID-19 virus. The Minister attached an affidavit from an expert which provided a
“detailed rebuttal” of the opinions expressed in the documents FITA relies on. She also
says that she discounted these reports as they suffered from a number of limitations such
as inadequate reporting; unreliable sources; poor data quality, sampling bias as well as
being of a self-publishing nature as opposed to peer reviewed material. She also referred
22

to a report from the WHO dated 11 May 2020 which cautioned against “amplifying
unproven claims that tobacco or nicotine could reduce the risk of COVID-19”.

[53] As such, having had regard to the Minister’s submissions, we are satisfied that in
arriving at the decision to impose the ban, the Minister considered all of the relevant
medical literature — even evidence that may have been at odds with the view linking high
COVID-19 virus progression amongst smokers when compared with non-smokers. This
fortifies our view that the objectivity requirement has been fulfilled. .

AUDI ALTERAM PARTEM
[54] Counsel for FITA contended that the Minister has failed to allow for a proper public
consultation process before making a decision to prohibit the sale of tobacco products. It
is argued that the ban seriously restricts the freedoms of millions of South Africans, and
has far-reaching implications, yet the approach adopted by the Minister reveals a
trivialization of those very grave considerations and a reliance being placed on materials
which have no real probative value. FITA’s submission is that the total disregard for the
principle audi alteram partem demonstrated by the Minister is indicative of the manifest
irrationality in the decision-making process.

[55] In support of these submissions, Mr. Subel referred to the decision in
Administrator, Transvaal and Others v Traub and Others:32

     “The maxim express a principle of natural justice which is part of our law. The classic
     formulations of the principles state that, when a statute empowers a public official or body
     to give a decision prejudicially affecting an individual in his liberty or property or existing
     rights, the latter has a right to be heard before the decision is taken (or in some instances
     thereafter see Chikane’s case supra at 379G), unless the statute expressly or by
     implication indicates the contrary”.

32 1989 (4) SA 731 (A) at 748F-H.
23

[56] Counsel further referred to a further explication of this principle in Doctors for Life
International v Speaker of the National Assembly and Others.33 The Constitutional Court
held:

    “[205] Public participation in the law-making process is one of the means of ensuring that
    legislation is both informed and responsive. If legislation is infused with a degree of
    openness and participation, this will minimize dangers of arbitrariness and irrationality in
    a formulation of legislation. The objective in involving the public in the law-making process
    is to ensure that the legislators are aware of the concerns of the public. And if legislators
    are aware of those concerns, this will promote the legitimacy and thus the acceptance of
    legislation. This not only improves the quality of the law-making process, but it also serves
    as an important principle that Government should be open, accessible, accountable and
    responsive. And this enhances democracy”.

[57] FITA, with specific regard to the exercise of “executive action”, referred to the
decision in Albutt, where the Constitutional Court held that in some cases, the exercise
of public power might be irrational if the decision-maker does not follow a fair procedure
and hear both sides before making a decision.34 On the basis of these legal principles,
FITA argues that it was denied audi and therefore that the promulgation of the regulations
is procedurally unfair.

[58] Counsel for the Minister, Mr. Moerane, submitted that FITA appears to be confused
regarding the standard of review in that it refers to cases concerning the requirement of
public participation in the legislative process and the requirement of audi in administrative
decision-making, and then seeks to apply these to a case concerned with executive
action. This, he argued, FITA cannot do. Invoking the decision in Law Society of South
Africa and Others v President of the Republic of South Africa and Others,35 Mr. Moerane
submitted that executive action carries no general obligation to consult the public:

33 2006 (6) SA 416 (CC).
34 Albutt supra at para 49.
35 2019 (3) SA 30 (CC) (Law Society).
24

     “[87] Public participation in the law-making process is a requirement, specifically provided
     for in our Constitution that must be met by our law-making institutions. But participatory
     democracy is not provided for in similar terms in relation to the exercise of presidential or
     executive power.       The negotiation and signing of international agreements like the
     impugned Protocol is an exercise of executive power. And there is no legal exercise of
     executive power. And there is no legal provision or principle that even remotely imposes
     an obligation on the Executive to invite the public to participate in its decision-making
     processes as proposed. Desirable though it may be, we would be straining even the
     scheme of the Constitution if we were to elevate public consultation to the level of a
     requirement. It is always open to the Executive, whenever it deems it fitting to do so, to
     involve the public. But a failure to do so, however enriching to the decision making process
     it might otherwise have been, can never rise to the level of a failure to fulfil a constitutional
     obligation to consult the public.”

[59] Mr. Moerane also submitted that even if there were such a requirement, the
Minister in fact consulted with the public and FITA had made submissions in support of
its position, which were considered in the decision-making process. He further submitted
that FITA can also not claim that its procedural rights were undermined by the change in
position as this submission does not take into account the Minister’s explanation that she
has gone to lengths to point to the comments she received especially regarding a possible
ban on the sale of tobacco products including comments received from FITA.

[60] In our view, FITA’s contention that the process followed by the Minister was flawed
is ill-conceived and must therefore be rejected. In this regard, the Minister is correct when
she points out that given that executive conduct is only required to be procedurally rational
and not fair, the fact that FITA alleges that it was not given an opportunity to be fairly
heard is immaterial. All that is required is that the process leading up to the promulgation
of the regulations is rationally related to achieving the purpose sought to be achieved
through the regulations. In this regard, we agree with the Minister. In Masetlha v
President of the Republic of South Africa and Another36 the Constitutional Court found –

36 2008 (1) SA 566 (CC).
25

     “[78] The authority conferred must be exercised lawfully, rationally and in a manner
     consistent with the Constitution. Procedural fairness is not a requirement.”

[61] In Law Society37 Mogoeng CJ (for the majority) had the following to say on the
nuanced difference between procedural fairness and procedural rationality in the exercise
of public power –

     “[64] Procedural fairness has to do with affording a party likely to be disadvantaged by the
     outcome the opportunity to be properly represented and fairly heard before an adverse
     decision is rendered. Not so with procedural irrationality. The latter is about testing
     whether, or ensuring that there is a rational connection between the exercise of power in
     relation to both process and the decision itself and the purpose sought to be achieved
     through the exercise of that power.”

Other considerations
[62] FITA also contended that the Minister failed to consider a number of other relevant
factors such as the economic impacts of the prohibition; the potential health and
psychological impact on smokers as well as the illicit trade in cigarettes. On the
contention that she failed to consider the economic impacts of the prohibition, the Minister
submits that the economic impacts of the prohibition were indeed considered but that it
was decided that any impact that the prohibition may have on the economy would be
outweighed by the harm posed to life and the healthcare system by allowing the continued
sale of tobacco products. The Minister also pointed out that if tobacco use did indeed
give rise to more people with a more severe form of COVID-19, a failure to impose the
ban would have in turn resulted in additional healthcare costs for the State.

[63] As regards to the contention that she failed to consider the psychological and other
effects on people when they suddenly stopped smoking, the Minister sets out in sufficient
detail the medical facilities that are available to assist smokers in dealing with the effects

37 Supra.
26

of smoking cessation. This was not disputed by FITA. FITA’s contention in this regard is
therefore rejected.

[64] FITA also argued that the fact that only South Africa and Botswana have banned
the sale of tobacco products in dealing with the pandemic is indicative that no proper
consideration was given to the necessity of the prohibition. The argument was that as
many other countries had not banned the sale of tobacco products, this showed that this
was an ill-conceived decision that was unwarranted and especially that there was
widespread support for this application. As argued on behalf of the respondents,
decisions of other countries have no impact on decisions about what happens in this
country. The decision to ban tobacco products was, as explained by the Minister, taken
with reference to the South Africa context and its preparedness to deal with the COVID-
19 virus. It is of no consequence nor does it retract from the firm rational basis
underpinning the ban, that other countries have not adopted similar measures.

ILLICIT TRADE OF TOBACCO PRODUCTS
[65] Much was made of the thriving trade of illicit tobacco products as a result of the
ban. In this regard FITA contended that, rather than preventing smoking, the ban has
rather had the effect of encouraging trade in illicit cigarettes. According to FITA, the
inflated prices of illicit cigarettes has resulted in people not following social distancing
recommendations as more people in informal settlements or “townships” are sharing
cigarettes which in turn defeats the purpose of the ban. FITA further asserted that this
unintended consequence of the ban has resulted in “tobacco bootleggers” garnering
millions in revenue through illegal trade whilst tobacco farmers, producers and
manufacturers — who are all fully compliant with the law — bear the brunt of the
prohibition and suffer financially.

[66] Rather than preventing people from smoking and in so doing curbing the spread
of the virus, FITA submits that the ban has resulted in people buying illicit products from
criminals. As such, given that smokers are still able to access cigarettes — albeit
illegally — and in so doing the rise of criminality in society is encouraged, FITA submits
27

that this together with the knock-on effects of the ban, proves that the ban is not feasible
and has not been effective in preventing people from smoking.

[67] In response, the Minister refers to the HSRC report. We have already referred to
this report and the Minister’s reliance on this report. In brief, the Minister holds the view
that, based on this report, the ban was effective in reducing access to cigarettes and as
a result, the use thereof. Even if the ban has not resulted in every smoker in the country
stopping the habit, this does not render the ban irrational given that the test for rationality
is not whether the means chosen were the best possible means but rather whether the
chosen means, being the ban, could rationally achieve the objective.

[68] Whilst it is correct that the ban has not resulted in each and every smoker in the
country quitting in an effort to contain the virus, it should be borne in mind that when the
Minister took the decision to ban the sale of tobacco products, her objective was not to
stop every smoker from continuing with smoking, it was to alleviate the potential
devastating burden on the already constraint healthcare system.

[69] Our view is that the reality of the illicit trade of tobacco products is not fatal to the
rationality of the ban given that the Minister only needs to show that the means chosen
to achieve the intended objective were reasonably capable of achieving it. In fact, the
continuing illicit trade in tobacco products does not negate the overwhelming view that
smoking affects the respiratory system and renders smokers more susceptible than non-
smokers to the heightened progression of the COVID-19 virus especially amongst
persons with comorbidities such as diabetes etc.

[70] We once again reiterate that an important consideration that should not be lost
sight of is that the means chosen by the Minister, i.e. the ban, need not be the most
effective nor the best suited. Ultimately, the question remains whether there is a rational
connection between the ban, as the means preferred, and the saving of lives through
curbing infections and preventing a strain to the country’s healthcare facilities. This, we
are satisfied, the Minister has been able to demonstrate.
28

EX POST FACTO JUSTIFICATION
[71] FITA’s contention is that the record and the reasons are “replete with material”
obtained after the date upon which the regulation 27 was promulgated, and such is a
contrived ex post facto justification for the ban. In this regard FITA’s counsel relied on
Turnbull-Jackson v Hibiscus Coast Municipality and Others (eThekwini Municipality
as amicus curiae) 38 where the Constitutional Court held:

     “[37] Undeniably, a rule 53 record is an invaluable tool in the review process. It may help:
     shed light on what happened and why; give the lie to unfounded ex post facto (after the
     fact) justification of the decision under review; in the substantiation of as yet not fully
     substantiated grounds of review; in giving support to the decision-maker’s stance; and in
     the performance of the reviewing court’s function. . .”

[72] The high-water mark of FITA’s case on this point is that evidence was included in
the Minister’s answering affidavit in support of the prohibition which had been gathered
after regulation 27 had already been promulgated. Mr. Moerane argued that reference to
additional material was necessitated by FITA’s own action in bringing a new review in its
supplementary founding papers to regulation 45. It was accordingly necessary, with
reference to regulation 45, for the Minister to attach material to the answering affidavit
that was considered after regulation 27 had been promulgated, in deciding whether to
continue the prohibition into level three.

[73] We agree that the inclusion of additional material in the answering affidavit does
not amount to an ex post facto attempt to justify the prohibition. FITA elected to review
regulation 45 without affording the respondents an opportunity to file a record or reasons.
It was accordingly necessary, with reference of regulation 45, to attach material to the
answering affidavit that was considered after regulation 27 had been promulgated.

ARE REGULATIONS 27 AND 45 ULTRA VIRES?
[74] In the supplementary founding affidavit, FITA makes the statement that the
prohibition of the sale of tobacco products, in regulation 27 and 45, is “at the most

38 2014 (6) SA 592 (CC).
29

fundamental level” ultra vires and that these regulations “purport to legislate beyond” the
powers vested in the Minister. There is no further elaboration in the supplementary
founding affidavit regarding what this assertion means. In a nutshell, other than this bare
contention, FITA doesn’t provide any basis in that affidavit to make out a case based on
these regulations being ultra vires.

[75] FITA took up this issue further in its replying affidavit and heads of argument
arguing that the prohibition of tobacco sales is not authorized by section 27, particularly
section 27(2) and (3) and that section 27(2) does not specifically empower the Minister to
make regulations concerning the suspension of the sale of cigarettes and tobacco
products. FITA submits with reference to section 27(2)(i) of the Act which provides for
“the suspension or limiting of the sale, dispensing or transportation of alcoholic beverages
in the disaster-stricken area”, that, because no similar power is granted to the Minister to
issue regulations in respect of the sale of cigarettes and tobacco products, the regulations
are ultra vires. The high-water mark of FITA’s argument therefore seems to be, relying
on the expression unius est exclusion alterius,39 that section 27(2) of the Act does not
empower the Minister to impose a “ban” on the sale of cigarettes and tobacco products.
FITA further argues that the Minister bears the onus to show that regulations 27 and 45
are necessary “for the attainment of the objects identified in section 27(2). FITA makes
the case that regulations 27 and 45 are restrictions on otherwise lawful activities and for
this reason, the Minister bears the onus to show that they are necessary, i.e. that the ban
is necessary. Unfortunately, FITA has not made out this case in the supplementary
founding affidavit. However, despite this glaring omission, we nonetheless briefly deal
with these submission as they were properly ventilated before us.

[76] We have already referred to the principle that the exercise of power must be
authorized by law. In the present matter the Act broadly provides for the legislative

39 The application of this principle was explained in Die Bestuursraad van Sebokeng & ‘n Ander v
TIelima 1968 (1) SA 680 (A) as follows: “For instance, if legislation states the grounds upon which a
licence may be refused, it may not be refused on any other grounds, an approach which is in
conformance with the rule inclusion unius est exclusion alterius.”
30

framework within which the State40 must deal with and implement measures aimed at
preventing, reducing or mitigating the severity and consequences of a disaster.41

[77] Section 27(2) of the Act affords the Minister the power to promulgate (after
consultation with the responsible Cabinet Minister) regulations concerning those issues
listed in subparagraphs (a) – (o). The Minister’s powers under section 27(2) are
constrained by the provisions of section 27(3) of the Act which states that the Minister
may exercise those powers “only to the extent that it is necessary for the purpose of” any
of the listed outcomes in this section. The Minister’s powers must therefore be sourced
within the confines of this Act. Any constraints on the exercise of discretionary powers is
likewise a matter of construction of the empowering statute.42

[78] The Minister confirms that the source of her power to promulgate regulations 27
and 45 lies in section 27(2) of the Act. She principally relies on two sections: In terms of
section 27(2)(f) she may make regulations concerning “the movement of persons and
goods to, from or within the disaster-stricken or threatened area”; and in terms of section
27(2)(n) she may make regulations concerning “other steps that may be necessary to
prevent an escalation of the disease, or to alleviate, contain and minimise the effects of
the disaster”. She submits that not only do regulations 27 and 45 both fall within the ambit
of these subsections, but that these regulations are “necessary” to prevent an escalation
of the pandemic and to alleviate, contain and minimise the effects of the pandemic as
required by subsection (n) of section 27(2) of the Act.

40 Section 25 of the Act.
41 Preamble of the Act.
42 See AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another ; 2007 (1) SA 343

(CC): “[68] This is a matter of the application of the rule of law and the principle of legality which flows
from the value of the rule of law enshrined in s 1 of the Constitution. This Court has held that ‘[t]he
exercise of all public power must comply with the Constitution, which is the supreme law, and the
doctrine of legality, which is part of that law’. The doctrine of legality, which requires that power should
have a source in law, is applicable whenever public power is exercised. Private power, although subject
to the law and, in certain circumstances, the Bill of Rights, does not derive its authority or force from
law and need not find a source in law. Public power, on the other hand, can be validly exercised only if
it is clearly sourced in law.”
31

[79] Dealing firstly with the maxim unius inclusio est alterius exclusio argument:
Although this principle has been applied in our law on occasion, it would seem it has been
applied with “great caution”.43

[80] This much is clear from the decision in Administrator of the Transvaal and Others
v Zenzile and Others44 where the Appellate Division (as it then was) held that:

    “… the maxim unius inclusio est alterius exclusio. It is not a rigid rule of statutory
    construction… and it must at all times be applied with great caution…”

[81] Similarly, in National Director of Public Prosecutions and Another v Mohamed NO
and Others45 the Constitutional Court warned against the rigid application of this principle:

     “[40] Although there is no express reference thereto in its judgment, the High Court clearly
     relied implicitly on the interpretative maxim that the 'specific inclusion of one implies the
     exclusion of the other’, in coming to this conclusion. This maxim has been described as 'a
     valuable servant, but a dangerous master'. 'It is not a rigid rule of statutory construction';
     in fact it has on occasion been referred to as a 'principle of common sense' rather than a
     rule of construction, and 'it must at all times be applied with great caution'.
     [41] There are circumstances when the inclusion of a particular provision occurs because
     of excessive caution, or where the Legislature is 'either ignorant or unmindful of the real
     state of the law', or for some other reason that does not warrant the inference that its
     inclusion in one provision means that it was intended to be excluded in the other provision.”

[82] We are not persuaded, in the context of the Act and the general purpose thereof,
that the principle of unius inclusio est alterius exclusio should be invoked in support of the
contention advanced by FITA: By their very nature, natural disasters may often result in
unforeseen consequences requiring a government to implement measures not

43 In S.A. Estates and Finance Corporation Ltd. v Commissioner for Inland Revenue, 1927 AD 230 at
p 236 the court similarly held that “the maxim expressio unius est exclusio alterius is one which must
at all times be applied with great caution”.
44 1991 (1) SA 21 (A) (“Administrator of the Transvaal”) at 37G – H.
45 2003 (4) SA 1 (CC) (“Mohamed”).
32

necessarily foreseen at the time legislation was drafted to manage and contain a state of
natural disaster. The COVID-19 pandemic unfortunately bears testimony to this: This
pandemic has created an extraordinary situation unlike anything that this country, and in
fact the entire world, has seen in recent history. Due to the newness of the disease,
Governments are struggling to understand the effects of the disease. Medical experts
likewise are struggling to understand why certain patients are more susceptible than
others to the ravaging effects of the disease. It is in the context of the unpredictable
nature of the disease that Governments must take measures that are “necessary” to
protect the public and to deal with the destructive effects of the disease. To apply the
maxim of inclusio est alterius exclusio in the context of section 27(2) of the Act will not, in
the words of the Constitutional Court in Mohamed be “a valuable servant” but will, in our
view, be “a dangerous master”.46

[83] The legislature could therefore not possibly have contemplated every sort of
disaster that may occur and attempt to confer specific powers on the Minister relevant to
apply to all conceivable disasters. This is why section 27(2)(n) of the Act empowers the
Minister to adopt regulations regarding “other steps that may be necessary to prevent an
escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster”.
This section is therefore, in our view, sufficiently wide enough to serve as a source
empowering the Minister to take other steps or measures outside of those specifically
listed in section 27(2) but only to the extent that they “may be necessary” to deal with the
containment or minimizing of the effects of the disaster (in this instance the COVID-19
pandemic).

[84] As to the argument that the regulations are not necessary, the principal point of
departure between the parties appears to be disagreement on whether the regulations
were indeed “necessary” and what the definition of necessary in this context would be.
FITA contends that the meaning of necessary in terms of sections 27(2) and (3) is
“indispensable” or “absolutely necessary” whereas the Minister submits that the meaning
of necessary in this context should only be limited to “reasonably necessary”. From this

46 Ibid.
33

it can be gathered that the meaning of necessary contended for by FITA would entail the
highest threshold meaning that the Minister would have to show that the enactment of the
regulations in terms of the Act was “strictly necessary” as opposed to only “reasonably
necessary”.

[85] We are persuaded by the Minister’s submission that FITA’s argument is
misconceived as it ignores the context under which the regulations were promulgated.
Given that an unprecedented disaster had just hit South Africa 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. Such a view would in turn undermine the Minister’s
attempts at meeting her constitutionally mandated duties of promoting and protecting the
right to life and the right to access to healthcare. In our view the necessity requirement
is met once it is shown that there is a rational connection between the ban on tobacco
sales and curbing the scourge of the COVID-19 virus in an attempt to prevent a strain on
the country’s healthcare facilities, a finding which we have already made.

[86] Moreover, having regard to context, our view is that reliance on the decision in
Pheko and Others v Ekurhuleni Metropolitan Municipality47 by FITA for the interpretation
of “necessary” as found in section 27(3) is misplaced. Firstly, Pheko concerned a disaster
that was confined to the Bapsfontein Informal Settlement and was not a disaster on a
national and global scale as is the case in this matter. Hence the evictions and demolition
of the residents’ homes were said to have been brought in terms of section 55 of the Act
by the Ekurhuleni Metropolitan Municipality. Section 55 is headed “Declaration of local
state of disaster” as opposed to section 27 which is headed “Declaration of national state
of disaster”. This is quite telling because, when a local state of disaster is declared and
evictions and demolitions are being contemplated, it would seem that an organ such as

47 2012 (2) SA 598 (CC) (“Pheko”).
34

the Municipality would have to show that the eviction and demolition of the homes of
residents is “strictly necessary” to avert the disaster.

[87] The Court in Pheko was essentially concerned with the interpretation of the term
“evacuation”. In this context it is understandable that the Court focused on the meaning
of the term in the section. This was for the reason the Municipality destroyed dwelling
huts of residents and stated that it was necessary that it do so in evacuating the affected
residents. Destruction of the residents’ homes was clearly not strictly necessary and was
a clear violation of their human rights. However, in this case, given the global and national
(and not local) scale of the disaster, the enactment of regulations in an attempt to avert
the COVID-19 disaster in our view would only have to be shown to be “reasonably
necessary”. In the grips of a national (and global disaster) that has astronomic fatal
consequences, the stakes are quite high, and it stands to reason that it was important
that the Minister did whatever was reasonably necessary in compliance with her
constitutional obligations and faced with a disaster of this magnitude, to save lives in
particular. For this reason our view is that the promulgation of regulations 27 and 45
passed the required threshold of section 27.

CRIMINALISING CONDUCT
[88] Section 31(2) of the level four regulations makes it an offence to not comply with
or to contravene inter alia regulation 27 (providing for a sentence of imprisonment up to
6 months or a fine or both). Section 48(2) of the level three regulations makes it an
offence to not comply with or to contravene inter alia regulation 45 (providing for a
sentence of imprisonment of up to 6 months or a fine or both).

[89] A new case was made out in FITA’s heads of argument. Mr. Subel submitted that
in considering the rationality of the ban on cigarettes and tobacco products, the Court
must be cognizant of the criminal sanction which it carries, as the regulations that create
offences unlawfully criminalise the sale of tobacco products.
35

[90] By contrast Mr. Moerane submitted that the regulations prohibiting the sale of
tobacco products are distinct from the regulations that make the contravention of the
prohibition regulations an offence (“offence creating regulation”). It is also argued that
FITA does not challenge the offence-creating regulations; its challenge is only to
regulations 27 and 45. Neither regulations creates an offence nor criminalises conduct.

[91] We agree that a challenge of the legality of the offence creating regulations is not
before the Court. FITA’s case is not whether the Minister, acting under Parliament’s
delegated authority in terms of an Act, has the power to create new offences under the
Act. In any event, section 27(4) of the Act provides that the regulations made under
section 27(2) may include “regulations prescribing penalties for any contravention of the
regulations”, and section 59(3) says that the Minister may prescribe a penalty of
imprisonment for a period not exceeding six months or a fine “for any contravention of, or
failure to comply with a regulation”. FITA has therefore not made out a case in this regard.

CIGARETTES AND TOBACCO PRODUCTS ARE “ESSENTIAL GOODS”
[92] FITA submits that the first category of declaratory relief, viz that cigarettes and
tobacco products are “essential goods” relates to the regulations published on 25 March
2020 in which there had not as yet been an express prohibition on the sale of cigarettes
and tobacco products. It is submitted that during that period and prior to regulation 27
being published, these products qualified as “essential goods”, and were therefore not
prohibited by the regulations of 25 March 2020 (the initial regulations).

[93] It is argued that cigarettes and tobacco products ought to be viewed in the same
way as those products that were considered to be essential goods under the initial
regulations. FITA further submits that it is common cause that cigarettes and tobacco
products are addictive and the withdrawal from these products could lead to serious
physical, psychological and emotional harm. This is aggravated by the freely available
illicit, non-regulated products that are most hazardous to health. In this respect, FITA
contends that the legal regulated products are not dissimilar from medication, which was
understandably permitted under the initial regulations.
36

[94] In terms of regulation 11A, “essential goods” meant goods referred to in paragraph
A of Annexure B, which sets out the following list of “essential goods”:

   “1. Food
   (i) Any food product, including non-alcoholic beverages;
   (ii) Animal food; and
   (iii) Chemicals, packaging and ancillary products used in the production of any food
   product.
   2. Cleaning and Hygiene Products
   (i) Toilet paper, sanitary pads, sanitary tampons, condoms;
   (ii) Hand sanitisers, disinfectants, soap, alcohol for industrial use, household cleaning
   products, and personal protective equipment; and
   (iii) Chemicals, packaging and ancillary products used in the production of any of the
   above.
   3. Medical
   (i) Medical and Hospital supplies, equipment and personal protective equipment; and
   (ii) Chemicals, packaging and ancillary products used in the production of any of the
   above.
   4. Fuel, including coal and gas.
   5. Basic foods, including airtime and electricity”.

[95] In interpreting the ambit of “essential goods”, the level five regulations must be
interpreted in context, and in light of their purpose. An interpretation that falls within
37

constitutional bounds must be preferred to one that does not.48 Tobacco products did not
fall within the ambit of “essential goods” and their sale was prohibited. Tobacco products
are 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.

[96] It is in this context that we must consider the argument that cigarettes should be
categorized as “essential goods”. The categories of goods determined to be “essential”
include food, cleaning and hygiene products, medical and basic goods. The interpretive
principle of euisdem generis —that the meaning of general words is determined when
they are used together with specific words —finds application here. The general term
“essential goods” is qualified by the specific subcategories of goods listed in the
regulations, and the general subcategories are, themselves, qualified by the specified
items listed thereunder. It is clear that the essential goods listed share the common
quality of being life-sustaining or necessary for survival (such as food and medicine) or
necessary for basic functionality (such as airtime and fuel). Cigarettes and related
tobacco products do not, by their nature, fall into the same category as goods which are
life-sustaining or necessary for basic functionality. An interpretation of the regulations to
expand to such a meaning would be insupportable in light of the purpose of the legislation
and the nature of essential goods provided for in the regulations. Simply because a good
is addictive it does not necessarily follow that it is therefore necessary for human survival
or required for basic human functionality.

[97] We agree with the Minister’s submission that seen in the proper context, the level
five regulations cannot be interpreted as including tobacco products within the ambit of
“basic goods”. Many products and services were prohibited during the lockdown period
in so far as they were defined as non-essential. Many industries were restricted as a goal
of curbing and managing the pandemic. Differential or preferential treatment for tobacco
products and /or the tobacco industry therefore cannot be countenanced as tobacco
products were simply not considered to be essential.

48 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA).
38

[98] FITA’s argument that cigarettes ought to have been considered “essential”
because they are additive has no merit. The fact that a substance is addictive does not
render it essential. We therefore find no basis on which to interpret the level five
regulations as permitting the sale of tobacco products.

[99] In the circumstances, the following order is granted –
1. The application by Fair-Trade Independent Tobacco Association is

         dismissed with costs, such costs to include the costs of three counsel.
                                                            ______________________
                                                                       MLAMBO JP
                                                            ______________________
                                                                         MOLEFE J
                                                            ______________________
                                                                         BASSON J

Date of hearing: 10 June 2020

Date of judgment: 26 June 2020
39

Appearances:

Counsel for the Applicant: A Subel SC

                           B Edwards
                           N Makhaye

Instructed by:

Morgan Law Inc

C/O Hamel Attorneys

329 Braam Pretorius Street

Magalieskruin

Pretoria

Ref: R Merrifield/ag/FT001

Counsel for the Respondents: MTK Moerane SC

                           NH Maenetjie SC
                           IS Cloete
                           MY Salukazana

Instructed by:

The State Attorney

SALU Building

316 Thabo Sehume Street

Pretoria

REF: A Wasserman/Z71

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