NDZ has said in an affidavit submitted to the SCA that just because cigarettes are addictive doesn't mean that they're an essential product.

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The ban on cigarettes imposed by the South African government during the nationwide lockdown is once again facing judicial scrutiny, with the latest attempt by the Fair Trade Independent Tobacco Association (Fita) to have the ban overturned being considered by the Supreme Court of Appeals (SCA) this week.

As judges deliberate arguments presented by both Fita and the State, an affidavit submitted by Cooperative Government and Traditional Affairs (Cogta) Minister Nkosazana Dlamini-Zuma has posited the position that cigarettes have never, and will never, constitute a product worthy of being deemed essential.

Dlamini-Zuma, or “NDZ” as she has been widely referred to since her status of notoriety pushed the collective patience of South African smokers and non-smokers alike to the brink of no return during the lockdown, said in the affidavit that cigarettes kill, and should therefore not give judges too much to consider when deliberating the necessity of their sale.

“Cigarettes and tobacco do not, by their nature, fall into the same category as goods which are life sustaining or necessary for basic functionality,” Dlamini-Zuma argued.

“On the contrary, tobacco products kill 115 South Africans daily. It therefore cannot be considered a ‘basic good’ akin to electricity and airtime,” she said.

She said that the mere fact that hundreds of thousands of South Africans have developed a physical dependency on tobacco should not distort the reality that they remain a severe health risk and could therefore place strain on the fragile health system.

“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.”

“The high court’s analysis on the issue cannot be faulted. Measures that serve to reduce the strain on the health-care system must be considered to be strictly necessary,” she said.

“Any measure that serves to reduce the strain on the health-care system is, I submit, a measure strictly necessary to contain and minimise the effects of the pandemic, and to protect the public.

In response to Fita’s argument that the ban has had little to no influence on the health system’s ability to ready itself for surges in COVID-19 cases, NDZ said that banning the sale of cigarettes has successfully achieved this very goal.

“As the court held, the tobacco ban does serve to reduce the strain on the health-care system. It follows that the ban is strictly necessary to protect the public.”

“The test is not whether the prohibition is the best means possible to achieve the objective. It is rather whether the chosen means, being the prohibition, could rationally achieve the objective.”

The judges at the SCA will deliberate the arguments and responses submitted to them this week, and said on Tuesday that we can expect a judgment to be handed down in “days rather than weeks”.

We’re also expecting a verdict from the court appeal lodged by British American Tobacco (BATSA) at some point. However, it’s possible that this decision could only come towards the end of the month.

Source: The South African

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