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THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT)

Case no: 6118/2020

In the matter between:

BRITISH AMERICAN TOBACCO                                                         First Applicant

SOUTH AFRICA (PTY) (LTD)

JT INTERNATIONAL                                                                       Second Applicant

SOUTH AFRICA (PTY) LTD

MELINDA FERGUSON                                                                        Third Applicant

KEOAGILE MOLOBI                                                                         Fourth Applicant

LIMPOPO TOBACCO                                                                           Fifth Applicant

PROCESSORS(PTY)LTD

SOUTH AFRICAN TOBACCO                                                             Sixth Applicant

TRANSFORMATION ALLIANCE NPC

BLACK TOBACCO FARMER'S                                                     Seventh Applicant

ASSOCIATION

SUIDER-AFRIKA AGRI                                                                     Eighth Applicant

INISIATIEF NPC

SOUTH AFRICAN INFORMAL                                                           Ninth Applicant

TRADERS ALLIANCE

LA TOSCANA INVESTMENTS CC                                                     Tenth Applicant

t/a J.J CALE TOBACCONISTS

and

MINISTER OF CO-OPERATIVE                                                      First Respondent

GOVERNANCE AND TRADITIONAL

AFFAIRS

PRESIDENT OF THE REPUBLIC                                              Second Respondent

OF SOUTH AFRICA

THE NATIONAL CORONAVIRUS                                                  Third Respondent

COMMAND COUNCIL

Coram: NDITA J, STEYN J, SLINGERS J

Delivered electronically this 11th d ay of December 2020

 

JUDGMENT

 

THE COURT

 

Introduction

[1] South Africa, as well as all nations of the world, found itself gripped with a novel coronavirus pandemic, known as COVID-19, which necessitated implementation of measures designed to curb or control its spreading in order to minimise its impact on the lives of the citizens. After having been identified in Wuhan, China, during December 2019, the novel coronavirus, SARS-CoV-2, spread globally resulting in an international pandemic of the coronavirus disease, Covid-19. Measures taken to curb its spread culminated in a national lockdown and the declaration of a national state of disaster in terms of Notice No.313 of 15 March 2020 and the promulgation of Regulations in terms of the Disaster Management Act 57 of 2002 ("the Act"). On 15 March 2020, the first respondent ("the Minister"), in her capacity as the Cabinet member designated in terms of section 3 to administer the Act, acting on behalf of the National Government, declared a national state of disaster in terms of section 27(1) of the Act. On the same day, the Cabinet decided that the Cabinet members then considered to have a role to play in combatting the disaster would form part of the National Coronavirus Command Council ("NCCC"), which is cited as the third respondent in this application. On 28 May 2020, the Minister promulgated Regulation 45 in terms of section 27 (2) the Act for Alert Level 3 of the national state of disaster. Regulation 45 in its original form reads thus:

"Tobacco products, e-cigarettes and related products

45. The sale of tobacco, tobacco products, e-cigarettes and related products is prohibited, except for export."

[2] The prohibition covered by Regulation 45 affected all sales in South Africa, except those for export, of:

2.1 raw tobacco, by farmers and importers to local processors and local manufacturers and the manufacturer members of the Fair-Trade Independent Tobacco Association;

2.2 processed tobacco, by farmers, processors and importers to local manufacturers;

2.3 tobacco products (cigarettes, loose tobacco, snuff, chewing tobacco and e-cigarettes by local manufacturers and importers to wholesalers and retailers of all kinds;

2.4 related products (e.g. cigarette paper, pipes and other smoking paraphernalia), by local manufacturers and importers to wholesalers and retailers; and

2.5 tobacco products, e-cigarettes and related products, by retailers to consumers.

[3] On 12 July 2020, the Minister amended Regulation 45 to read as follows;

"Tobacco products, e-cigarettes and related products:

(1) The sale of tobacco, tobacco products, e-cigarettes and related products to members of the public and to persons including retailers who sell directly to members of the public, is prohibited.

(2) The sale of tobacco, tobacco products, e-cigarettes and related products for export, is permitted;

(3) The sale of tobacco from farmers to local processors or local manufacturers, is permitted."

[4] This amendment came into operation after the commencement of the present proceedings and after the Respondents had filed answering papers and the Applicants' replying papers had been delivered. The practical effect of the amendment is that the only sales of tobacco, tobacco products, e­ cigarettes and related products that are now prohibited are:

4.1 sales to members of the public in South Africa; and

4.2 sales to persons including retailers who sell directly to members of the public in South Africa, but sales for export to persons for export are excluded from this prohibition.

It follows that it is only the amendment of 12 July 2020 that is the subject matter of this application.

[5] Against this background, the Applicants seek in the notice of motion the following relief:

'2. Declaration as unconstitutional and invalid, and reviewing and correcting and setting aside of Regulation 45 made by the Respondent in Government Notice of 12 July 2020, as amended.

3. Directing the First Respondent to pay costs of this application, alternatively, directing the First Respondent to pay costs of this application on a joint and several basis with the other Respondents who oppose this application.'

 

The notice in terms of Rule 16 A

[6] As is procedure, the First Applicant issued a notice in terms of Rule 16A alerting the Registrar that the following constitutional issues are raised in this application:

"1. Regulation 45 of the Regulations made by the First Respondent in Government Notice No. R. 480 of 29 April 2020, as amended by Government Notice No. 608 of 28 May 2020, in terms of section 27 (2) of the Disaster Management Act 57 of 2002 ("Regulation 45") prohibits the sale of tobacco, tobacco products, e-cigarettes and related products. In this application, the Court is asked to decide whether Regulation 45 is:

a. An unconstitutional infringement of the following rights in the Constitution of the Republic of South Africa, 1996 ("the Constitution"):

(i) The right of, inter alia, tobacco farmers, tobacco processors and tobacconists to freedom of trade occupation or profession under section 22 of the Constitution;

(ii) The rights of consumers of tobacco and vaping products to dignity, privacy and bodily integrity under sections 10, 14 and 12 of the Constitution; and

b. An arbitrary deprivation of the right to property of participants in the supply chain for tobacco and vaping products under section 25 (1) of the Constitution.

2. The Applicants seek an order declaring Regulation 45 unconstitutional and invalid and correcting and setting aside Regulation 45."

[7] I now turn to outline the identity of the parties who seek the aforesaid relief from the Respondents.

 

The parties

[8] This application is brought by ten applicants who range from tobacco producers, tobacco manufacturers, tobacconists, farmers, and tobacco products consumers.

[9] The First Applicant, the British American Tobacco South Africa (Pty) Ltd, ("BATSA") is a company duly incorporated in accordance with the laws of the Republic of South Africa. According to the affidavit deposed to by BATSA's Chief Executive Officer, BATSA is the largest manufacturer of tobacco products in South Africa and its products include top-selling cigarette brands such as Peter Stuyvesant, Dunhill, Kent, and Rothmans.

[10] The Second Applicant is JT International South Africa (Pty) (Ltd) ("JTI"). JTI is a subsidiary of JT International Holding B.V ("JT International”), which is an operating division of Japan Tobacco Inc., and which handles international production and sales of the group's cigarettes brands. According to the Second Applicant's General Manager, Mr Andrew Neuman , JT International is the third largest tobacco manufacturer and has offices in over 130 locations around the world.

[11] The Third Applicant is Ms Melinda Ferguson, an adult female and award winning publisher, bestselling author and freelance journalist. She is a consumer of tobacco products.

[12] The Fourth Applicant, Mr Keoagile Molobi, is an adult male technician living in Meadowlands, Soweto, also a consumer of tobacco products.

[13] The Limpopo Tobacco Processors (Pty) Ltd ("LTP") is the Fifth Applicant. It is a company with limited liability incorporated in terms of the company laws of South Africa, with its registered address at 67 Molen Street, Rustenburg, North West. LTP is in the business of processing tobacco leaf acquired from tobacco leaf dealers or manufacturers who produce tobacco products.

[14] The Sixth Applicant is South African Tobacco Transformation Alliance NPC ("SATTA") with its address at 164 Totius Street, Groenkloof, Pretoria, Gauteng Province. Its director, Mr Ntando Shaddrack Sibisi describes SATTA as a non-profit company which was formed to advance the interests of the legal tobacco value chain against the impact of illicit trade, extreme or unfavourable policies and regulations, as well as to drive transformation of the tobacco industry.

[15] The Seventh Applicant is Black Tobacco Farmers Association ('BTFA") with its address at stand number 3973, Kwangwanase, KwaZulu-Natal Province. Mr Jabulani Bonginkosi Tembe is a member of BTFA. Mr Tembe defines BTFA's purpose as being the promotion of the interests of black tobacco farmers and to lobby the government on policy positions that are favourable to the tobacco value chain. According to Mr Tembe, BTFA represents more than 160 farmers in four provinces across the Republic of South Africa.

[16] The Suider-Afrika Agri lnisiatief NPC ("SAAi") is the Eighth Respondent. Its member, Mr Herman Jacobus Roos describes SAAi as an organisation with a specific focus on family farmers and farming operations. According to his affidavit, SAAl's members produce and sell tobacco as part of their agricultural activities. SAAi has members across all demographics within South Africa and in all nine provinces.

[17] The Ninth Applicant is the South African Informal Traders Alliance ("SAITA"). The General Secretary of SAITA, Mr Michael Mokgoja, describes SAITA as a non-governmental organisation established in 2013 to represent the interests of informal traders, street vendors, hawkers and spaza shop owners in South Africa and has members across all nine provinces. It has about 8000 (eight thousand) registered members. According to Mr Mokgoja, the sale of cigarettes accounts for a substantial portion of the average informal trader's sales in South Africa. Furthermore, over half of the traders that make up SAITA's membership rely heavily on the sale of tobacco products as the primary source of their sales, with many of them selling tobacco products exclusively.

[18] The Tenth Applicant is LA Toscana Investments CC, t/a J.J Cale Tobacconists ("JJ Cale"). Mr Warren Dreyer, the Chief Executive Officer of JJ Cale, states that JJ Cale is one of the largest tobacconist groups in the country and has fifteen stores, twelve of which are in Gauteng, two in the Western Cape, and one in KwaZulu-Natal. In addition, 75% of the products sold by their stores are tobacco and tobacco related products. The other 25% is made up of gifts related to smoking such as ashtrays, humidors and cigar accessories.

[19] I now turn to outline the identity of the Respondents.

[20] The First Respondent is the Minister of Co-operative governance and Traditional Affairs. The Minister is a member of the Cabinet, who has been designated in terms of section 3 of the Act. The Minister has made several regulations in terms of section 27 (2) of the Act. As previously pointed out, the instant matter concerns one of those regulations.

[21] The Second Respondent is the President of the Republic of South Africa ("the President"). The President is cited in his capacity as head of the Cabinet but no relief is sought against him, save for the costs order in the event of opposition.

[22] The Third Respondent, the NCCC, is a committee of cabinet Ministers established by the President to co-ordinate its response to the coronavirus challenge. Likewise, no relief is sought against the Third Respondent, save for the costs order in the event of opposition.

 

The mootness of the proceedings

[23] As can be discerned from the notice of motion, the main issue in these proceedings is a constitutional challenge and review of Regulation 45. The matter was heard on 5 and 6 August 2020 and the judgment was reserved. Two weeks after reservation of the judgment, the ban on the sale of tobacco and related products was lifted. The effect of the lifting of the ban, prima facie, renders the issues raised during the hearing moot, and a verdict incompetent.

[24] Before summarising the factual underpinning of this application, we deem it necessary to determine whether this case ' is moot and therefore not justiciable if it no longer presents an existing or Jive controversy which should exist if the court is to avoid giving advisory opinions on abstract propositions of the law' in light of the lifting of the ban[1]. Section 16 (2) (a) (i) of the Superior Courts Act No 10 of 2013 ("Superior Courts Act") provides that:

'When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.'

Section 2 (a) (ii) on the other hand, makes it clear that the question whether the decision will have a practical effect or result is to be determined without reference to any consideration of costs.

[25] It is trite that a court has a discretion to decide a matter even if it has become academic or moot, a discretion that must be exercised according to what the interests of justice require. In Independent Electoral Commission v Langeberg Municipality the Constitutional Court held thus:

'This Court has a discretion to decide issues on appeal even if they no longer present existing or live controversies. That discretion must be exercised according to what the interests of justice require. A prerequisite for the exercise of the discretion is that any order which this court makes will have some practical effect either on the parties or on others. Other factors that may be relevant will include the nature and extent of the practical effect that any possible order may have, the importance of the issue, its complexity and the fullness or otherwise of the argument advanced. This does not mean however, that once this Court has determined one moot issue arising in an appeal it is obliged to determine all other moot issues.'[2]

[26] The following passage from Minister of Finance v Oakbay Investments (Pty) (Ltd) and Others[3] provides further guidelines in the exercise of judicial discretion in determining mootness of cases:

'Herbstein & Van Winsen extrapolates from decided cases factors courts have taken into account to determine whether judicial discretion should be exercised positively or negatively in an application for interdictory relief. These include (i) the existence or absence of a dispute; (ii) the utility of the declaratory relief and whether, if granted, it will settle the question in issue between the parties; (iii) whether a tangible and justifiable advantage in relation to the applicant's position appears to flow from the grant of the order sought; (iv) considerations of public policy, justice and convenience; (v) the practical significance of the order; and (vi) the availability of other remedies.'

The Court in Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Exploration and Exploitation SOC Ltd and Another[4] reaffirmed the principles outlined above and proffered a further factor, namely, resolving disputes between different courts and/or conflicting judgments.

[27] It must be accepted that an order that may be issued by this court in these proceedings will not have a practical effect. This is so because Regulation 45, the constitutional validity of which was the subject of the litigation, has been repealed. The question that must be answered, against the backdrop of the principles outlined above, is whether it would be in the interests of justice to consider and pronounce on a regulation that is no longer in existence. The usual ground for exercising the court's discretion in favour of determining an otherwise moot issue is that the case raises a discrete issue of importance that will have an effect on future matters.[5] In the matter at hand there are exceptional circumstances of compelling public interest which requires us to determine the moot issue. These are the following:

27.1 In this matter both parties had delivered full argument and had closed their respective cases;

27.2 The matter was argued fully for two days on 5 and 6 August 2020;

27.3 The issues raised are complex and vitally important, more so in the light of the continued state of the coronavirus pandemic and lockdown. The COVID-19 pandemic is still very much a health issue. This is a novel and exceptional situation. Scientific research into the link between COVID-19 and smoking, as attested to by the journal articles attached to the papers in this matter, is continuing. It cannot be overruled that should new evidence emerge establishing a clear and unequivocal link between COVID-19 deaths and smoking, there remains a possibility of the ban on tobacco use and of tobacco products being re-introduced. Therefore, the issues raised are of substantial public importance and will have an impact on future matters.

27.4 Whilst the ban on the sale of tobacco products has been lifted, the state of disaster has not been lifted. Therefore, there is a possibility of the infringement complained of in the current matter being repeated in the future. In Janse van Rensburg NO v Minister of Trade and lndustry[6] the Constitutional Court held that;

". . . These features must be weighed against the requirements of administrative justice. In doing so it must be appreciated that one of the enduring characteristics of procedural fairness is its flexibility. The application of procedural fairness must be considered with regard to the facts and circumstances of each case. In modern States it has become more and more common to grant far-reaching powers to administrative functionaries. The safeguards provided by the rules of procedural fairness are thus all the more important and are reflected in the Bill of Rights. Observance of the rules of procedural fairness ensures that an administrative functionary has an open mind and a complete picture of the facts and circumstances within which the administrative action is to be taken. In that way the functionary is more likely to apply his or her mind to the matter in a fair and regular manner.

Every conferment by the Legislature of an administrative discretion need not mirror the provisions of the Constitution or the common law regarding the proper exercise of such powers. However, as this Court has already held (in the context of a limitations analysis), the constitutional obligation on the Legislature to promote, protect and fulfil the rights entrenched in the Bill of Rights entails that, where a wide discretion is conferred upon a functionary, guidance should be provided as to the manner in which those powers are to be exercised. The absence of such guidance, together with the cumulative effect of the other features referred to in para [23] above, render the procedure provided in s 8(5)(a) unfair and a violation of the protection afforded by s 33(1), whichever text is applicable.'

In the matter at hand, the relevant Minister has been granted sweeping powers with huge consequences to the applicants;

it is therefore fitting that ' guidance should be provided as to the manner in which those powers are to be exercised.'

27.5 The possibility of the infringement being repeated and the exceptional circumstances of dealing with a new pandemic, coupled with the possibility of the re-introduction of the ban on tobacco justifies the determination of issues, which, although moot between the parties, raise compelling public interest questions which require the court to reach a conclusion. The matter is of great importance not only to the parties before court, but also to the public, not only because of the impact of the prohibition on personal lives, and/or livelihoods as set out in the papers, but also because Regulation 45 carried with it criminal sanctions, and in some cases, convictions were imposed on those who contravened the regulations on the ban of the sale of tobacco and tobacco related products. The constitutional issues raised herein command a huge public interest and thus the Court should not 'shut the door in the face of this call to look into the efficacy of an order which may advance the protection of constitutional rights.'[7]

27.6 It is important that the binding effect of the FITA judgment be determined.

For all these reasons we conclude that it is in the interests of justice to determine the merits of this application in spite of mootness.

[28] We now turn to outline the factual background to the prohibition on the sale of tobacco and vaping products relevant to the assailed administrative conduct.

 

Factual background

[29] We have already indicated that a national lockdown period was declared. On 25 March 2020, the Minister promulgated amended COVID-19 Regulations for this period. The first Regulation, Alert Level 5, imposed much stricter limitations on the movement of persons and goods and the provision of services. It should be noted that Alert Levels were so defined at a later stage by the President. Alert Level 5 provided that during the lockdown period only businesses providing essential goods or services may operate, and only "essential goods" could be sold. As tobacco products were not considered to be essential goods, their sale, though not prohibited expressly, was not permitted. Harvesting of tobacco products and storage activities essential to prevent the wastage of primary agricultural goods, including tobacco, were permitted essential services. According to the affidavit deposed to on behalf of BATSA, prior to the commencement of the lockdown on 27 March 2020, BATSA, on 24 March 2020, wrote to the Minister of Finance requesting that tobacco products be included in the list of basic goods that would be sold and manufactured during lockdown, However, at an inter-ministerial briefing held on 25 March 2020, the Minister of Trade and Industry indicated that national government did not regard cigarettes as a basic good for the purposes of the lockdown. BATSA claims that once the ban on the sale of cigarettes nationally was announced, it chose not to pursue a legal challenge to the ban, but adopted the position that it would wait for the President's announcement regarding a possible extension to the lockdown.

[30] The President addressed the nation on 23 April 2020, giving an update of the government's response to the COVID-19 pandemic. In his speech, the President unveiled different Alert Levels and pronounced that the hard lockdown in effect at the time was Alert Level 5. The President announced that after 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. To this end, there would be five Alert Levels, defined thus:

Alert Level 5: high virus spread and/or low health system readiness, where drastic measures are required to contain the spread of the virus to save lives.

Alert Level 4: moderate to high virus spread with low to moderate health system readiness, where some activity can be allowed to resume subject to extreme precautions required to limit community transmission and outbreaks.

Alert Level 3: moderate virus spread with moderate health system readiness, which involves the easing of some restrictions, includingon work and social activities, but subject to measures to address a high risk of transmission.

Alert Level 2: moderate virus spread with high health system readiness, which involves the 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.

Alert level 1: low virus spread with high health system readiness, which involves the resumption of most normal activity with minimum restrictions.

The President also stated that ' when the country moves to level 4 on I May . . . the sale of cigarettes would be permitted.' In addition, the relevant Minister would ' provide a detailed briefing on the classification of industries and how each is affected at each level. We give all industry bodies an opportunity to consider these details and, should they wish to make submissions before the new regulations are gazetted.'

[31] Pursuant to the President's speech, a draft framework for all five Alert Levels, called the "The Risk Adjusted Strategy", was published on 25 April 2020. It included tables for each of the five levels setting out proposed permitted activities and permitted goods that could be sold during each alert level. In line with the President's announcement of 23 April 2020, the table applicable to Alert level 4 included tobacco products as goods that would be sold on Alert Level 4. The Risk Adjusted Strategy called for public comment in the following manner:

'Sectors and business organisations/trade unions and members of the public are invited to submit comments on the schedule of services to be phased in as per the Covid-19 Risk Adjusted Strategy (RM) to be implemented from 01 May 2020.'

[32] BATSA submitted written representations covering six broad topics, which may be summarised as follows:

32.1 BATSA expressed gratitude for being given an opportunity to comment on Alert Level 4 which, according to its understanding, would allow its members to harvest tobacco leaf, process tobacco leaf, and to manufacture and sell licenced tobacco products. It also set out the positive impact the decision would have on the entire value chain, which includes 50 000 retail outlets being able to sell tobacco and vaping products. BATSA outlined that the lifting of the prohibition would positively impact on the job security of the thousands of employees who service the tobacco industry in South Africa.

32.2 The second broad topic addressed a range of factors that were cited in support of the intended lifting of the ban. These included that an extended ban: (a) would highly likely result in foreclosure of members' operations including farming, processing and local production; (b) would have a strong negative impact on the revenue of local suppliers, distributors, retailers and wholesalers; (c) would have a negative impact on BATSA's sustainability programme for 10 000 informal retailers; and (d) would result in the illicit cigarette trade completely replacing all legal tobacco and vaping products.

32.3 The third submission was to the effect that there was insufficient evidence to draw any conclusions on the relationship between smoking, vaping and Covid-19 that would justify an extended prohibition.

32.4 Fourthly, BATSA submitted that while it was too early to draw firm conclusions from the studies, there were recent reports based on emerging studies from the USA, France and China indicating that nicotine might have some form of protective effect against Covid-19.

32.5 The fifth submission related to how tobacco and vaping products contributed positively to the overall emotional well­ being of consumers of tobacco and vaping products.

32.6 The sixth submission was that a clear communication strategy on social distancing was necessary. According to this contention, it was necessary to disseminate proper messaging on the perils of sharing any goods that could worsen the spread of the pandemic. BATSA further submitted that the aforegoing contention, although made in the context of tobacco and vaping products, applied equally to the sharing of eating utensils or sharing a bottle.

[33] BATSA states that given the assurance by the President of the lifting of the prohibition, it began to prepare its operations to commence the distribution and sale of tobacco and vaping products on 1 May 2020. All its trade representatives, logistics suppliers and landlords were informed that BATSA would start trading from 1 May 2020 and the necessary plans and strategic arrangements were put in place and discussed with the respective suppliers. BATSA further states that it also started accepting telephonic and online orders valued at R293 million. These were to be delivered after 1 to 4 May 2020.

 

The position that applied after Alert Level 4

[34] On the evening of 29 April 2020, the Minister announced that the prohibition on the sale of tobacco and vaping products would continue after 1 May 2020. According to BATSA, the Minister cited two reasons for the reversal of the President's announcement that the sale of tobacco and vaping products would be permitted with effect from 1 May 2020:

34.1 Firstly, she stated that consumers of tobacco and vaping products in the lower economic bracket tended to share cigarettes and that this would increase the transmission of Covid-19 since it does not allow for social distancing. BATSA contends that the issue of social distancing must be dealt with by public awareness campaigns on sound hygienic practices during the pandemic - such as teaching people to wash hands or refrain from sharing basic things like forks. BATSA draws an analogy from the lack of prohibition on the sale of bottled soft drinks for fear of people spreading Covid -19 by sharing bottles and avers that tobacco and vaping products may be sold coupled with awareness campaigns on the perils of sharing between consumers. This, so alleges BATSA, is particularly so because consumers of tobacco and vaping products are bound by the normal social distancing rules.

34.2 Secondly, the Minister justified the continued sales ban under the lockdown on the basis of the alleged potential impact of Covid-19 on smokers' lungs. In response to this assertion, BATSA reiterates its earlier stance to the effect that there is insufficient evidence to draw any firm conclusions on the relationship between smoking, vaping, and Covid-19 that would justify the continued ban on cigarette and vaping sales.

[35] BATSA bemoans the fact that the Minister did not revert to the tobacco industry before reversing what had been stated by the President, on the basis of which BATSA, JTI and other entities in the tobacco value chain prepared for the lifting of the prohibition and opening up of business in the tobacco industry. The Minister gave effect to her speech when she published, during Alert Level 4, in Regulation 27, the prohibition on the sale of tobacco and vaping products. Alert Level 4 commenced on 1 May 2020.

 

The process leading to Alert Level 4

[36] BATSA states in its founding affidavit that the Minister's decision to prohibit the sale of tobacco and vaping products astonished it. It says that it considered applying to court for urgent interim relief but because it anticipated that the country would move to Alert Level 3 by the end of May 2020, it put the consideration in abeyance as it expected that it would have an opportunity to engage with the Government. BATSA says that rather than bring an application to court, it wanted to motivate for the removal of the prohibition on the sale of tobacco. To this end, on 22 May 2020, BATSA addressed written submissions to the President regarding why tobacco and vaping products should be permitted to be sold when the country moved to Alert Level 3.

 

The position that applied to Alert Level 3

[37] BATSA avers that the tobacco industry and BATSA were at no stage invited by the Minister, the President or any other government representative to make submissions regarding why the prohibition on the sale of tobacco and vaping products should not be retained in Alert Level 3. On the evening of 23 May 2020, the President announced that the country as a whole would move to Alert Level 3 with effect from1 June 2020. The President stated that 'the sale of tobacco products will remain prohibited in alert level 3 due to health risks associated with smoking'. On 28 May 2020, the Minister amended the Regulations so as to provide for Alert Level 2. The amendment included the insertion of Regulation 45, which provides that ' the sale of tobacco, tobacco products, e-cigarettes and related products is prohibited' during Alert Level 3.

[38] We now turn to BATSA's allegations of adverse consequences as a result of the prohibition of tobacco and vaping products.

 

The consequences of the prohibition on the sale of tobacco products

[39] BATSA laments the harm caused by the prohibition on the sale of tobacco and vaping products, not only to consumers, but also to BATSA, the tobacco industry and the fiscus.

 

(a) The Impact on consumers

The impact of the prohibition on the sale of tobacco and vaping products on consumers is captured in the affidavit of the Third and Fourth Applicants (Ms Melinda Ferguson and Mr Keoagile Molobi), as well as in the affidavit of Ms Beverly Anne Mclean. Ms Ferguson is a consumer of tobacco and related products. She explains that she started smoking at the age of 17 years until she reached 38 years. She states that in 2005, she decided to stop smoking, and this lasted for ten years. After being involved in a very serious accident, she developed post-traumatic stress disorder ("PTSD" ) and continues to suffer from it. Ms Ferguson discloses that in 2015, she began smoking organic tobacco (Raw 1 Manitou) as she finds it pleasurable and calming, which makes it easier for her to cope with stress. According to her evidence, she smokes between 10 and 15 rolled up tobacco cigarettes a day. Ms Ferguson further avers that after she ran out of her tobacco supply she started smoking rooibos tea, herbal teas and even microwaved old and stale vanilla tobacco she had had for years. She says that due to her unmanageable mental stress with life under the lockdown, and the distress she felt at being deprived of the routine, relaxation and pleasure provided by tobacco, she bought two packets of her organic tobacco from an unknown masked man at three times the normal price. She stated that her well-being has been negatively affected and the ordinary freedom to choose what she consumes undermined. In short, she feels unjustifiably prejudiced by the tobacco prohibition. In her affidavit, she outlines the anguish caused by her inability to purchase tobacco and avers that the ban on the sale of tobacco and related products is unjustifiable and unlawful.

[40] Ms Ferguson outlines the basis for the relief sought as being founded on section 10 of the Constitution which provides that ' everyone has inherent dignity and the right to have their dignity respected and protected'. In addition, she continues, section 12 (2) of the Constitution states that everyone has the right to bodily and psychological integrity, which includes the right to ' security in and control over their body'. She contends that control includes protection of one's autonomy or bodily self-determination. For these reasons, she feels that the tobacco prohibition limits her fundamental rights to dignity and freedom and security of person and in her opinion, the limitation is unjustified. She further states that there are less drastic means available to achieve the government's Covid-19 aims. Furthermore, the continued prohibition on the sale of tobacco and vaping products is procedurally unfair in the light of the President's statement assuring the nation that the ban would be lifted.

[41] The impact of the prohibition on to tobacco and vaping products is also outlined by the Fourth Applicant, Mr Keoagile Molobi. Mr Molobi, in similar vein to Ms Ferguson's averments, states that he has been smoking cigarettes for eight years because smoking relieves his stress levels and helps him to relax. He further avers that after it was announced by the government that tobacco products would be banned, he was unable to stockpile cigarettes as he simply could not afford to. This meant that he ran out of cigarettes shortly after the commencement of the lockdown. Neither could he afford to buy them from the illicit market as they were quite expensive. This, according to his averments, impacted severely on his emotional well-being. Mr Molobi states that he had been without cigarettes for about five weeks when the President announced that the prohibition on the sale of tobacco and vaping products would be lifted. He further states that the announcement brought him relief and comfort but when the decision was reversed he felt profoundly disappointed. Mr Molobi further explains that smoking is beneficial to his emotional well-being and contributes to his happiness, and, with the lockdown anxiety and uncertainty regarding his employment, the distress in his life is exacerbated by not being able smoke in order to cope with the stressful times. He complains that the ban on the sale of tobacco and vaping products infringes on his fundamental rights to dignity and freedom and security of person.

[42] Ms Beverley-Anne Mclean also attested to the adverse effects the tobacco and vaping prohibition has had on her as an elderly smoker. She says that the tremendous stress of her family circumstances is alleviated by smoking. Ms Mclean states that she has been smoking for nearly 40 years. The ban on the sale of tobacco and vaping products frustrated her so much that it prompted her to start a petition on an online platform calling for the President and the relevant decision-makers to lift the ban on the sale of tobacco products. By 28 April 2020, the petition had garnered almost 150 000 names. After the ban was extended on 1 May 2020, the number of signatories to the petition increased up to 600 000

people.

[43] To further bolster the adverse effect of the prohibition on the sale of tobacco on consumers, BATSA filed the affidavit of Dr Christopher John Proctor, a scientist with a PhD who has published widely on tobacco and nicotine research. It must be stated from the outset that Dr Proctor is also a consultant to BATSA and has served as the Chief Scientific Officer and Group Head of Potentially Reduced Risk Product for the British American Tobacco group of companies. Given his aforegoing roles in BATSA, it stands to reason that his opinion as an expert is foreshadowed by his involvement with BATSA, but we deal later with the weight that must be attached to his opinion. For now, suffice to simply state his views.

[44] Dr Proctor explains the harm caused to the emotional well­ being of consumers of tobacco and other products as a result of the prohibition. He points out that tobacco and vaping products are in many respects similar to coffee in the ways they are experienced by consumers and explains thus:

44.1 Tobacco and vaping products on the one hand, and coffee on the other, are consumed by users on a daily basis (and normally on multiple occasions in the day). Many users develop routines and rituals associated with the use of these goods that are highly significant to the users and provide them with comfort and enjoyment. People make use of these goods because they find them pleasurable and useful.

44.2 Nicotine is one of the major chemical components in tobacco and vaping products, while caffeine is one of the major chemical components in coffee. Both nicotine and caffeine are plant alkaloids that act on the central nervous system. They are stimulants, with nicotine also producing a calming effect. People experience enjoyment from these mild pharmacological effects, as well as from the sensorial stimulation and ritualistic patterns of use. For this reason, tobacco and vaping products, and coffee, are significant to the users and provide them with comfort and enjoyment and help them cope in stressful circumstances. Regular users crave the experience of consuming coffee, and smoking tobacco or vaping.

[45] According to Dr Proctor, the denial of access to tobacco and vaping products is detrimental to the emotional well-being of regular users and can be expected to result in increasing restlessness, irritability, anger , stress and unhappiness. Furthermore, these impacts are significantly heightened in an already difficult and stressful scenario, such as the national lockdown in the context of a life-threatening global pandemic. Thus any stress or anxiety experienced by consumers due to their deprivation of tobacco and vaping products is exacerbated by the anxiety experienced as a result of confinement to their residence, or due to the pandemic more generally.

[46] Dr Proctor confirms what has already been stated by Ms Ferguson and Mr Molobi, to the effect that many consumers use tobacco and vaping products for pleasure and to manage or relieve stress during their daily lives. The inability to access the tobacco products can be expected to have a negative impact on their emotional well-being, personal autonomy and bodily integrity.

[47] Dr Proctor notes that tobacco and vaping products have, virtually in all countries of the world, been included within the category of goods available for purchase during lockdown. He cites Italy, France, Switzerland and Spain as countries who have expressly classified tobacconists and other retailers that sell tobacco and vaping products as essential shops that can remain open during lockdown.

[48] BATSA also filed a report compiled by Professor Van Walbeek on the response of smokers to the prohibition. On 15 May 2020 a research paper entitled 'Lighting Up The Illicit Market: Smoker's Responses To The Cigarette Sales Ban In South Africa' was published by the Research Unit on Economics of Excisable Products ("the Research Unit"), which is at the University of Cape Town. The research featured in the paper was conducted by Professor Corne van Walbeek, Samantha Filby and Kirsten Van der Zee. With the regard to the authenticity of the research paper, BATSA did not file a confirmatory affidavit from Professor Van Walbeek because he declined to do so, on the basis that:

48.1 He is an independent social scientist, he does not 'take sides' and is thus not in a position to 'support BATSA and other local companies in this law suit.'

48.2 the Van Walbeek report is in the public domain.

48.3 he stands by his report.

That said, the paper reveals that the Unit describes itself on its website as:-

'an accredited research unit within UCT's School of Economics under the directorship of Corne van Walbeek. As the name indicates, the unit focuses its research on economic aspects related to a variety of excisable products, specifically, tobacco, alcohol and sugar-sweetened beverages. While we are not a lobby group, our focus is public health. Our motto is "Supporting public health through rigorous and objective research". We never have and will never accept money from the tobacco, alcohol, or soft drink industry.'

[49] The aim of the Van Walbeek Report is stated as being to 'explore how cigarette smokers responded to the ban' on the sale of cigarettes and 'assess the implications of their responses on the market for cigarettes in South Africa.' The survey targeted people who were ' regular cigarette smokers in the period immediately before the ban on cigarette sales was announced .' According to the report, of the 10 257 people who continued to smoke, 90% continued to purchase cigarettes after the lockdown commenced - that is, despite the sale of cigarettes being prohibited. Therefore, 9 231 people purchased cigarettes illegally. The upshot of the Van Walbeek report can be highlighted thus:

49.1 The surveys reveal that people were no longer obtaining cigarettes from retailers they used prior to the lockdown. Formal retailers accounted for only 3% of sales during lockdown, while it represented 56% of sales prior thereto. On the other hand, sales at house shops increased from 4% to 18% and sales at spaza shops increased from 34% to 44%. Sales by street vendors spiked from 3% to 26%, while informal avenues of obtaining cigarettes (such as family and friends) ballooned from 0.1% to 30%.

49.2 Of the total sample of smokers who purchased cigarettes during lockdown, 4% specified that they purchased the cigarettes from 'drug dealers,' 'cigarette smugglers', or 'black market traders'.

49.3 There has been, since the ban on the sale of tobacco, a dramatic increase in the price of cigarettes. The report states that prior to the lockdown a single cigarette cost between R0.50 - R4 per stick. The survey results also show that of the smokers who, prior to the lockdown, purchased brands from either BATSA, JTI, Phillip Morris or Imperial Tobacco, 46% moved over to local brands (which include Gold Leaf Tobacco Company, Amalgamated Tobacco Company, Carnilix and Best Tobacco Company). According to the survey, this had a dramatic impact on the market shares of the cigarette market. The survey results also show that, since lockdown, the price of cigarettes increased by 4.4%per day. According to the research report, thi suggests that cigarettes experienced hyper-inflation in the first two weeks of May 2020.

[50] The Van Walbeek report concludes that the prohibition on cigarette sales is 'failing what it was intended to do'. It adds that, while it was aimed at supporting public health, people are actually buying cigarettes in large quantities notwithstanding the lockdown.

[51] The next issue to consider is the adverse impact of the prohibition on the tobacco industry in general, consumers and the fiscus, as alleged by BATSA.

 

(b) The Impact on the tobacco industry

[52] BATSA alleges that the prohibition on the sale of tobacco and vaping products has a massive impact on all participants in the tobacco supply chain. It is important to recall that the amendment of Regulation 45, which is the subject matter of this judgment, prohibits the sale of tobacco, tobacco products, e-cigarettes and products directly to members of the public, whereas it permits sales from farmers to local processors or local manufacturers. BATSA contends that whilst tobacco farmers are permitted by the Regulations to harvest and store their crops, they are unable to find local buyers for those crops while the prohibition on the sale of tobacco products remains in place. The vast majority (over 90%) of their produce is sold locally, as foreign buyers already have existing suppliers, and it takes time and considerable effort to build business with new purchasers - something that is even harder under the current circumstances of a global pandemic. Accordingly, so avers BATSA, it is not feasible, in a very short period of time, for local tobacco farmers to find external purchasers to purchase the volumes that BATSA would have purchased. This therefore means that tobacco farmers have been unable to sell harvested tobacco crops and have had to continue operations without income or cash flow from the rest of the tobacco value chain.

[53] BATSA explains that there are currently more than 200 commercial farmers and over 150 emerging farmers producing tobacco in South Africa. These farmers, according to BATSA, provide approximately 8000 jobs, with some more than 30 000 dependants primarily 1n rural areas of the country where employment opportunities are limited. The inability of tobacco farmers to sell their crops undermines their ability to continue paying farm workers and jeopardises their financial viability. This scenario, so avers BATSA, is exacerbated by the fact that tobacco farmers are excluded from the R1, 2 billion disaster fund intervention made available to assist South African farmers with the impact of Covid-19. Because of all of these factors, so surmises BATSA, the prohibition on the sale of tobacco threatens the stability of the entire tobacco value chain. The Seventh Applicant, BTFA, also outlined the impact of the prohibition on farmers.

[54] BTFA laments the severe prejudice and irremediable financial hardship caused by the regulatory prohibition of the sale of tobacco and vaping products on tobacco farmers. We have already indicated in this judgment that the BTFA was established in 2019 to promote the interests of black tobacco farmers and to lobby government on policy positions that are favourable to the tobacco value chain. BTFA alleges that the decision by the government to maintain the ban on the sale of tobacco products during Alert Level 3 of the lockdown has a detrimental effect on the sustainability of the farming operations of its members. This, according to BTFA, is so because, although farmers are permitted to continue with their farming operations, the rest of the value chain is prohibited from operating; with BATSA, which procures all of the farmers' tobacco leaf, not operating, they have no market to which to sell. The result is that all BTFA farmers, their workers, families and dependants will suffer tremendously.

[55] BTFA states that its members currently sell 100 percent of their products to the Fifth Applicant, LTP, for onward sale to BATSA. BTFA further states that both LTP and BATSA have indicated to it the severe financial impact they will suffer due to the continued prohibition on the sale of tobacco products. BTFA emphasises that tobacco farming in South Africa is on the verge of total destruction. Furthermore, as BTFA, they stand to lose their entire businesses, valued between R11 million and R15 million in investments and earnings per annum, and the tobacco farmers are not eligible for the benefits of the relief fund announced by the government.

 

(c) The Impact of the prohibition on BATSA

[56] BATSA states that it has calculated the sales revenue lost in the first four weeks of the lockdown period and it amounts to R344 million in the week ending 3 April 2020; R358 million in the week ending 10 April 2020; R354 million in the week ending 17 April 2020; and R376 million in the week ending 24 April 2020. In addition, during May 2020, the loss was an average of R322 million per week. In total, BATSA's lost revenue has exceeded R2 billion in the nine-week period since lockdown commenced. According to BATSA, more losses are projected for as long as the prohibition continues.

 

(d) The Impact on the fiscus

[57] BATSA avers that the prohibition on the sale of tobacco and vaping products has enormous implications for the national fiscus. BATSA estimates that there are approximately 11 million users of tobacco and vaping products in South Africa at present and the prohibition has led to a massive surge in the illicit trade of tobacco by consumers. The resultant growth in the illicit trade of tobacco products has serious consequences for the legitimate tobacco industry, as well as the South African fiscus. To back this claim, BATSA states that prior to lockdown, the illicit tobacco trade already had a strong presence in the South African market and this has led to billions being lost annually through lost tax revenue. In 2018, it was estimated that the National Treasury was losing over R7 billion every year in excise tax revenue as a result of the illicit tobacco market. BATSA alleged that cartons of cigarettes which usually retail for between R300 and R450 are now reportedly being sold for R900 on the illicit market during the lockdown, with no tax being collected on these sales. In short, the national fiscus is losing out on billions in excise duties that would have been generated by the sale of legitimate cigarettes. Relying on the report of the organisation Tax Justice South Africa ("TJSA"), BATSA states that the ban on the sale of legitimate cigarettes is costing the fiscus approximately R35 million in unpaid excise duties per day. This equates to R2,4 billion lost during the first eight weeks of lockdown. To support its allegation of the effect of illicit tobacco trading pursuant to the prohibition, BATSA filed the affidavit of TJSA's Mr Yusuf Ali Abramjee ("Mr Abramjee").

[58] Mr Abramjee is the founder of TJSA, an organisation he claims is aimed at campaigning against illicit trade across multiple sectors of the South African economy. He states that due to his involvement in a number of crime fighting organisations over many years, he has spent a considerable amount of time tracking criminal activity via contacts in law enforcement around the country. According to his evidence, these contacts provide him with notifications of seizures and crimes, so that information can be monitored and spread to the public to raise awareness. Mr Abramjee states that as a result of these notifications he has personally witnessed ' a marked increase in the incidence of crime and seizures related to the illicit trade since lockdown.' He further states that since the 27 days of the lockdown there was a notable increase in police seizures of cigarettes. As the prohibition continued, this continued to rise during Alert Level 3. He ventures an explanation of why this is so and alleges that it is as a result of the lessening of restrictions on the movement of persons and transport. Mr Abramjee concludes that:

'Moreover, every day this cigarette ban continues, it appears that the illicit traders will be strengthened and emboldened. By the time it is lifted, they may become so embedded that combatting them and ensuring the fiscus gets its dues will become that much harder.'

[59] Against this backdrop, the Applicants allege the prohibition violates their constitutional rights at various levels.

 

The relief sought by the Applicants

[60] The Applicants allege, as set out in the Rule 16A statement, that Regulation 45 is unconstituitonal on three grounds. Firstly, it is an unjustifiable limitation on the right of tobacco farmers and tobacconists to choose their trade, and it is an irrational interference with the rights of tobacco manufacturers, wholesalers and retailers to practice their trade. Secondly, it constitutes an arbitrary deprivation of the property rights of participants in the supply chain for tobacco and vaping products. Thirdly, it amounts to an unconstitutional infringement of the rights of consumers of tobacco and vaping products to dignity, privacy and bodily and psychological integrity.

[61] Below, we elaborate on each of the grounds alleged to affront the Applicants' constitutional rights.

 

Freedom of trade, occupation and profession

[62] The Applicants allege that the First Respondent has, by continuing with the ban on the sale of tobacco and vaping products, violated the fundamental rights protected by section 22 of the Constitution, the right to choose one's trade, occupation and profession (in the first instance) and the right to practice a trade, occupation and profession (in the second instance). Section 22 reads thus:

'Every citizen has the right to choose their trade, occupation and profession freely. The practice of a trade, occupation or profession may be regulated by law.'

[63] With regard to the right to choose a trade, BATSA points out that prior to lockdown, the sale of tobacco and vaping products was lawful. Regulation 45 effectively deprives at least two categories of citizens of their right to choose a trade, occupation or profession. The first category of citizens are tobacco farmers, and the second tobacconists.

[64] Regarding tobacco farmers, BATSA alleges that the individual tobacco farmers have no buyers for their tobacco. (As pointed out in the summary of the affidavits of the Fifth, Sixth, Seventh and Eighth Applicants, tobacco farmers confirm the averments made by BATSA and have expatiated on the impact of the prohibition on the sale of tobacco and vaping products on their trade.) The prohibition will cause significant harm to these farmers, as they will not be able sell their products for the foreseeable future. As attested to by the tobacco farmers, the prohibition threatens the viability of tobacco farming. As reflected in the submissions made by the BTFA to the Minister, the tobacco farmers will at some point have to choose whether to continue with their chosen trade or occupation, or to exit the industry.

[65] Insofar as tobacconists are concerned, it is clear that due to the prohibition, tobacconists who only sell tobacco and vaping products will be unable to trade. The prohibition strikes at the heart of their core business. As retailers of tobacco and vaping products, Regulation 45 prevents them from opening their doors at Alert Level 3. As confirmed by the Tenth Applicant, JJ Cale, their right to choose their trade has been taken away by the prohibition. It is contended that the limitation on the right of tobacconists to choose their trade or occupation is not reasonable and justifiable.

[66] The impact of Regulation 45 on the rights of tobacco manufacturers, wholesalers and general retailers (i.e. retailers who sell other goods in addition to tobacco and vaping products) is alleged to be a restriction on their rights. BATSA argues that all these participants are in effect prohibited from trading in tobacco and vaping products since the finished product may not be sold to consumers. This includes not only tobacco manufacturers (such as BATSA) and wholesalers, but also general retailers (such as grocery stores, convenience stores, spaza shops and informal traders). BATSA alleges that all the industry participants are materially affected and will suffer significant financial harm for the duration of the prohibition; for some, their livelihoods and those of their families will be deeply affected. In the case of the manufacturers, some of the wholesalers and the tobacconist retailers, the impact on the practice of their trade is particularly acute, as their businesses are required to shut down entirely for the duration of the ban. BATSA laments the fact that tobacco and vaping products are the only lawful retail products that cannot be sold under Alert Level 3.

[67] Comparing the prohibition on the sale of tobacco and vaping products internationally, BATSA avers that, besides Botswana and India, it is not aware of any other country that has prohibited the sale of tobacco and vaping products during the pandemic. In the case of India, BATSA states that the key reason for the prohibition relates to spitting, since tobacco-chewing products are extensively used in that country. According to BATSA, spitting is a very different health concern in the context of Covid-19 and poses a public health threat which is materially different to the one purportedly of concern to the Minister.

[68] The Applicants allege that the interference with their practice of a trade occasioned by Regulation 45 is not rationally related to the achievement of a legitimate government purpose. Stated differently, it is not objectively rational. Furthermore, the prohibition is not underpinned by plausible reasons that justify it and is thus arbitrary. For all these reasons, so contends BATSA, Regulation 45 amounts to an unconstitutional infringement of the right to practice a trade or occupation.

[69] Below, we outline the Applicants' averments relating to the impact of the prohibition on section 25 of the Constitution.

 

Arbitrary deprivation of property

[70] Section 25 (1) of the Constitution provides that no law may permit arbitrary deprivation of property. The Applicants allege that Regulation 45 adversely impacts on their property rights in several ways, which can be summarised thus:

70.1 Tobacco farmers are unable to sell their recently­ harvested crop for the duration of the prohibition, which crop will potentially go to waste, and they are unable to utilise their farms, in which they have invested substantial capital over the years;

70.2 Manufacturers are not able to use their costly factories and equipment (i.e. their capital assets) to manufacture tobacco and vaping products. They are also unable to sell the products that they have produced;

70.3 Wholesalers and retailers are unable to sell their stock- in-hand of tobacco and vaping products. For those wholesalers who trade exclusively in tobacco and vaping products, they, like the manufacture, rare unable to utilise their facilities in a productive manner.

[71] The Applicants aver that as a result of the prohibition on the sale of tobacco products, the industry participants will be unable to alienate their property (i.e. the tobacco, or tobacco and vaping products, that they have produced, manufactured or purchased), and to realise the value in that property for commercial gain. In addition, manufacturers and wholesalers will be unable to employ their capital assets to turn a profit (or just break-even). According to BATSA, this is a significant limitation on the use, enjoyment and exploitation of these persons' property. In other words, Regulation 45 limits the right to alienate one's property, that being an important incident of an owner's use and enjoyment of that property. The Applicants contend that the deprivation is without good reason and constitutes an arbitrary deprivation of property and is thus unconstitutional.

 

The Right to dignity

[72] It is alleged that Regulation 45 infringes the rights of consumers of tobacco and vaping products. This is particularly averred by the Third and Fourth Applicants . The Applicants allege that these consumers are denied the choice as to whether or not they wish to buy and consume tobacco and vaping products during the lockdown. They further state that their freedom of choice is, paternalistically, negated, as the Minister has decreed that they are not allowed to smoke, or otherwise consume, tobacco and vaping products, including in the privacy of their own homes. The effect of Regulation 45, according to the Applicants, is to deny the consumers of tobacco products their rights to exercise free will. The Applicants state that this infringement on autonomy (i.e. the ability to regulate one's own affairs) amounts to an unconstitutional limitation on the right to human dignity in section 10 of the Constitution.

 

The Right to privacy

[73] The Applicants allege that the prohibition on the sale of tobacco and vaping products contravenes section 14 of the Constitution, which provides that everyone has the right to privacy. This, according to the Applicants, is particularly so because the prohibition denies consumers the right to purchase tobacco products for use in the privacy of their homes - behaviour in which consumers legitimately harbour an expectation of privacy. The Applicants allege that this constitutes an unjustifiable intrusion by the state into the private sphere, particularly in the context of the current lockdown where persons are generally confined to their places of residence. Moreover, so contend the Applicants, in such circumstances, it is clear that the ban was imposed with the purpose of limiting the individual's private behaviour.

[74] Having dealt with the constitutional infringements alleged by the Applicants, I turn now to deal with the Applicants' challenge of the Minister's powers to make regulations in terms of section 27 (2) of the Act.

 

The unlawfulness of the regulations

[75] BATSA alleges that in making Regulation 45 the Minister abdicated her power unlawfully to the NCCC, as the regulations were made "in" consulting the responsible Cabinet members, whereas in law the Minister should make the regulation "after" consulting Cabinet members. Stated differently, BATSA contends that if the decision to make Regulation 45 was in fact a collective decision of the NCCC, that would mean that the Minister unlawfully abdicated to the NCCC a power vested in her by section 27 (2) of the Act. BATSA contends that for this reason, Regulation 45 should be reviewed and set aside, on the basis that:

75.1 the Minister acted on the unauthorised and unwarranted dictates of another person, within the meaning of 6 (2) (e) (iv) of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA");

75.2 the making of Regulation 45 was otherwise unconstitutional or unlawful, within the meaning of section 6 (2) (f) (i) of PAJA;

75.3 alternatively, Regulation 45 is unlawful in terms of the principle of legality.

[76] The next issue to consider is BATSA's allegation to the effect that the Minister has no power to prohibit the sale of tobacco and vaping products.

 

The Minister's power to prohibit the sale of tobacco products

[77] BATSA contends that section 27 (2) (n) does not include the making of regulations that limit the sale of products other than alcohol. An interpretation of the section as conferring on the Minister a 'free-floating' power to prohibit the sale of any goods would render section 27 (2) (i) redundant. Accordingly, the Applicants aver that Regulation 45 is ultra vires and should be reviewed and set aside on the basis that:

77.1 the Minister was not authorised to prohibit the sale of tobacco and vaping products, within the meaning of section 6(2) (a) of PAJA; alternatively

77.2 the prohibition on the sale of tobacco and vaping products is not authorised by law in terms of the principle of illegality.

[78] The above contention is based on an interpretation of section 27 (2) of the Act, which provides that the Minister may make regulations regarding:

'(i) the suspension or limiting of the sale, dispensing or transportation of alcoholic beverages in the disaster-stricken or threatened areas;

(n) other steps that may be necessary to prevent an escalation of the disaster, to alleviate, contain and minimise the effects of the disaster.'

 

Section 45 is not 'necessary' and is unreasonable

[79] The Applicants contend that if it is found that section 27 (2) of the Act authorises the making of regulations that limit the sale of products other than alcohol, then the exercise of the Minister's power to prohibit the sale of tobacco products should be subject to the following limitations:

79.1 Prohibiting the sale of tobacco must be 'necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster', within the meaning of section 27 (2) (n) of the Act;

79.2 Prohibiting the sale of those products must be necessary for one or more of the purposes listed in section 27 (3);

79.3 Prohibiting the sale of those products must be rational, reasonable and not motivated by an unlawful purpose, whether in terms of PAJA or in terms of the principle of legality.

[80] The Applicants further contend that Regulation 45 does not comply with any of these limitations. Instead, so goes the allegation, it inflicts massive harm on consumers and on participants in the supply chain for tobacco and vaping products. According to the Applicants, Regulation 45 can only withstand scrutiny if the Minister is able to show that the imposition of such harm is 'necessary' and reasonable in order to avoid some greater harm that would occur if tobacco and vaping products were to be sold.

 

THE RESPONDENTS' OPPOSING AFFIDAVIT

[81] In an affidavit deposed to by the First Respondent, the Minister, the Respondents highlight that the COVID-19 pandemic poses a clear threat to human life in South Africa and to the country's health care system. Thus, extraordinary measures are required in order to combat the spread of the virus and its adverse impact on the people of South Africa, as well as her healthcare system.

[82] The bulk of the affidavits filed in support of the Respondents' contentions are based on medical opinions and journal articles. This is unsurprising in light of the fact that the Minister, in extending the prohibition on the sale of tobacco and vaping products on 12 July 2020, stated that she relied on information from these various sources. However, to avoid prolixity, not all the affidavits will be summarised, but same will dealt with at the analysis stage, should this be necessary.

[83] It must be stated from the outset that BATSA and the remainder of the Applicants lamented the fact that the President had, in his address to the nation on 23 April 2020, indicated that the sale of cigarettes would be permitted during Alert Level 4, but that the ban was later extended. contrary to what the Applicants perceived as an undertaking or promise. The Minister explains the position which prompted the decision to extend the prohibition further, and states that the President in his address had stated that the NCCC would determine the Alert Level based on an assessment of the infection rate and the capacity of the country's health system to provide health care to those who need it. According to the Minister, the proposal that tobacco products be permitted to be manufactured and sold in Alert Levels 4, 3, 2 and 1 was just that - a proposal. It remained subject to change following a consultation process. She further states that when she was asked during her media briefing of 25 April 2020 why tobacco sales would be permitted, she explained that there still would be discussions and consultations on the issue. Indeed there were, according to her evidence, consultations and discussions. Some submissions were in favour of lifting the ban, whilst some were diametrically opposed to the lifting of the prohibition. BATSA made submissions wherein it pointed out that:

83.1 Tobacco sales generate substantial revenue;

83.2 Prohibiting the legitimate sale of tobacco products leads to a flourishing black market. Tax is not paid on illicit cigarettes or other tobacco products;

83.3 The black market prices of cigarettes and other tobacco products are much higher. People who cannot afford the higher prices are more likely to share cigarettes or a hand­ rolled 'skyf'. This in turn contributes to the spread of COVID-19·

83.4 A number of people are addicted to tobacco products. Prohibiting the legitimate sale of tobacco products will result in heightened stress, anxiety, and other issues detrimental to their emotional well-being;

83.5 For those who have smoked for years, stopping for a short period of time will not have any positive health benefits; and

83.6 There is insufficient evidence regarding smoking, vaping and COVID-19 to justify continuing the ban on the sale of tobacco products.

[84] The Minister states that a large number of submissions were received from the side arguing that the ban on the sale of tobacco products should continue under Alert Level 4. The points made include the following:

84.1 In the poorer communities, people are more likely to share cigarettes and other tobacco products. This in turn contributes to the spread of COVID-19;

84.2 Smokers are likely to be more vulnerable to COVID-19 as the act of smoking entails cigarettes (which may be contaminated) coming into contact with the lips and may also result in the smoker's fingers (which may also be contaminated) coming into contact with their lips, thereby increasing the possibility of the transmission of the virus;

84.3 Smoking weakens the lungs and causes respiratory illnesses. As COVID-19 is a respiratory disease, smokers are at a higher risk of more severe COVID-19 health outcomes, i.e. of progressing to a more severe form of the disease;

84.4 This in turn will increase the burden on the public health system, as persons with more severe forms of the disease require scarce resources such as ventilators; and

84.5 Concerns were also raised regarding the health and attendant increased COVID-19 risks for those exposed to second-hand smoke.

[85] The Minister avers that submissions and responses received, as well as medical literature and inputs from a medical perspective regarding the issue of the proposed resumption of the sale of tobacco products, were discussed at the NCCC and the Cabinet. The result of the discussions was a decision to the effect that the sale of tobacco products should not be permitted during Level 4.

[86] Before summarising the affidavits filed in support of the Respondents' contentions, it must be stated that the Minister, in addition to the answering affidavit, filed an affidavit seeking leave to file the following further affidavits:

86.1 the supplementary affidavit of Nkosazana    Clarice Dlamini-Zuma;

86.2 the supplementary affidavit of Catherine Oritsebemigho Egbe;

86.3 the supplementary affidavit of Leslie London;

86.4 the supplementary affidavit of Stephanus Van Niekerk Malherbe ;

86.5 the supplementary affidavit of Georgina Sarah Dunn Midgeley;

86.6 the supplementary affidavit of Tara Polzer Ngwato;

86.7 the supplementary affidavit of Kennedy Nyamande;

86.8 the supplementary affidavit of Sasiragha Priscilla Reddy; and

86.9 the supplementary affidavit of Hanna Ross.

[87] Given that the application to file further affidavits was unopposed, leave to file same was granted.

[88] The factual matrix set out in the Applicants' founding affidavit is largely common cause, it therefore is not necessary to repeat it, save to emphasise that the only live issue relates to the amendment of Regulation 45 on 12 July 2020 limiting the prohibition to sales of tobacco, tobacco products, e-cigarettes and related products to members of the public and to persons, including retailers, who sell directly to members of the public in South Africa. It therefore seems prudent to us to advance to the Respondents' stated reasons for the prohibition of 12 July 2020.

[89] The Minister states that the overarching reasons for the decision to continue prohibiting the sale of tobacco products in Alert Level, 3 are to protect human life and to reduce potential strain on the healthcare system, particularly given the predicted steep rise in the rate of infections by the novel coronavirus following the lifting of the Level 4 restrictions on work and the movement of people to re-start the economy. According to the Minister, the Constitution imposes positive duties on the State to protect, promote and fulfil the rights in the Bill of Rights - including the right to life and the right to access to healthcare services. Thus, the State has a duty to take steps to prevent the spread of disease and to reduce the burden on the healthcare system, so as to ensure that those who need these services can have access to them. This duty is particularly acute in a pandemic. The Minister further explains that COVID-19 is a new disease, as a result, scientific knowledge is still evolving as studies around the potential links between the use of tobacco products and COVID-19 are undertaken.

[90] Relying on the evidence of Professor London of the University of Cape Town, Professor Nyamande of the University of Kwa-Zulu­ Natal, and Dr Egbe of the South African Medical Research Council, the Minister avers that the preponderance of the evidence from the studies that have been done so far is that the use of tobacco may increase the risk of transmission of COVID-19, and does increase the risk of developing a more severe form of the disease. This, in turn, will increase the strain on the health system by increasing the number of people who will need hospitailsation and access to resources such as intensive care unit ("ICU") beds and ventilators. According to the Minister the use of tobacco products increases the behavioural risks associated with COVID-19 transmission, as some smokers share burning cigarettes (manufactured or a hand-rolled 'skyf'), thereby increasing the risk of coming into contact with infected saliva. Furthermore, smokers who share in this way may also not observe social distancing when doing so. The Minister avers that smoking tobacco products undoubtedly leads to respiratory diseases and comorbidities such as diabetes, hypertension, chronic obstructive pulmonary disease asthma and heart disease, both in smokers and those exposed to second-hand smoke. In addition, smoking harms every organ of the body and is the leading cause of preventable death. This is the case even without COVID-19.

[91] The Minister further explains that emerging research about the relationship between smoking tobacco products and COVID-19 shows that the severity of COVID-19 outcomes is greater in smokers than non-smokers. Smokers have higher ICU admission rates, a higher need for ventilators and a higher mortality rate than non­ smokers. She emphasises that smoking increases the strain on the State's limited health care resources, including health workers. According to the Minister, prohibiting the sale of tobacco products during Alert Levels 4 and 3 has been, and is, aimed at reducing these risks.

[92] The approach adopted by the government, so emphasises the Minister, is intended to ensure that the health system and health care workers are not overburdened, possibly overwhelmed. In addition, given the fact that the scientific knowledge pertaining to COVID-19 is evolving, the infection number keeps rising and is likely to continue doing so, it is necessary for the government to take a cautious approach.

[93] According to the Minister prohibiting the sale of tobacco products has proven to be an effective measure in reducing the number of people smoking, or the amount they smoke, even during the lockdown period. This averment is supported by the affidavits of Priscilla Reddy of the Human Science Research Council, Dr Hana Ross of the University of Cape Town and Stephanus Malherbe of Genesis Analytics.

[94] The Minister has indicated that the prohibition on tobacco products was informed by the available expert and research information on COVID-19. The first such report is that of the World Health Organisation ("WHO"), published on 26 May 2020 as a scientific brief entitled 'Smoking and Covid-19'. The WHO is the international body tasked with promoting health globally. The WHO scientific research assesses available peer-reviewed literature on the association between smoking and COVID-19, including: (1) the risk of infection with COVID-19; (2) hospitalisation with COVID-19; and (3) severity of COVI0-19 outcomes amongst hospitalised patients such as admission into ICU, use of ventilators and death. It includes peer-reviewed studies up to 12 May 2020.

[95] The WHO scientific brief concludes as follows:

'At the time of this review, the available evidence suggests that smoking is associated with increased severity of disease and death in hospitalised COVID-19 patients. Although likely related to severity, no evidence to quantify the risk to smokers of hospitalisation with COVID-19 or of infection by SARS-CoV-2 was found in the peer-reviewed literature. Population based studies are needed to address these questions.'

[96] According to the Minister, the fact that WHO concluded that smokers are likely to develop a severe form of COVID-19, ought to weigh heavily in assessment of whether there is sufficient basis for the current prohibition on the sale of tobacco products.

[97] In addition to the WHO report, the Minister also received support for the prohibition on lockdown tobacco sales from various organisations within the South African medical fraternity

[98] What follows is an outline of the contents of Dr Egbe's report.

 

Dr Egbe's affidavit

[99] Dr Egbe is a Specialist Scientist (Tobacco Control) in the Alcohol, Tobacco and Other Drug Research Unit of the South African Medical Research Council. She has deposed to two affidavits regarding the current temporary ban. In her first affidavit, she explains what COVID-19 is, and how it is contracted and spread. She also sets out some of the general harmful effects that the use of tobacco products can have on the respiratory system. She then discusses the impact of using tobacco products on the risk of COVID-19 infection. In particular, she addresses the impact that the use of tobacco products has on the risk of contracting COVID- 19, on the risk of transmitting COVID-19, and on the risk that the disease will progress to a more serious form. She says, amongst other things, that: 'As COV/0-19 predominantly affects the respiratory system, it is reasonable to expect that the disease would pose greater risks for smokers, who are already susceptible to respiratory diseases.' Dr Egbe further notes that because COVID- 19 is a new disease, the research around the links between smoking and COVID-19 is still developing. However , having reviewed the available literature, including the emerging findings on this topic, she says the following conclusions can be reached:

99.1 Smoking may increase the risk of contracting and/or transmitting COVID-19 for a number of reasons.

99.2 Cigarette smoking induces an increase in ACE-2 in the respiratory tract. ACE-2 is the entry point into cells for some coronaviruses, including SARS-CoV-2.

99.3 Smoking behaviour is characterised by repetitive hand­ to-mouth movements, which increases the possibility of transmission of the virus from hand to mouth.

99.4 As COVID-19 has been detected in saliva, the sharing of cigarettes or waterpipes (hookah/hubble bubble) could also be a means of transmitting the virus.

99.5 Smoking is a risk factor for the progression of COVID-19. This means that, if a smoker contracts COVID-19, they are at a greater risk that the disease will progress to a more severe form for a number of reasons. Emerging studies show that smokers have up to twice the odds of COVID-19 progression to severe disease than never-smokers.

99.6 Smokers may already have smoking-related lung disease or reduced lung capacity, which would greatly increase their risk of serious illness if they contract COVID-19.

99.7 Smoking has been implicated as a cause of many of the underlying medical conditions that have been linked to severe and critical symptoms of COVID-19, including cancers, COPD, cardiovascular diseases (heart disease and stroke), asthma and diabetes.

99.8 Smoking is known to be associated with increased development of acute respiratory distress syndrome, which is the key disease manifestation for severe COVID-19 disease.

99.9 These increased risks, in turn, translate to an increased risk of strain on the public health system: the more people who contract COVID19, the greater the strain on the public health system and the more people who contract a more severe form of COVID-19, the greater the pressure will be on our hospitals - COVID-19 hospitalisations are known to last from 8 to 16 days depending on the severity of the patient's symptoms.

99.10 Given the newness of COVID-19, there is not yet enough data to assess whether and/or to what extent the chance of infection or disease progression decreases when a person quits smoking. However, the benefits of quitting smoking are both immediate and long-term, reducing the risk of tobacco-related diseases and improving general health. For example, people with diabetes who quit have the immediate benefit of having better control over their sugar levels and others generally can breathe better. The US Centres for Disease Control and Prevention ("CDC") reports that within the first 20 minutes of quitting smoking the smoker's heart rate drops; within 12 hours, the carbon monoxide level in the blood drops to normal and within 2 weeks to 3 months the risk of heart attack drops and lung function begins to improve.

99.11 Quitting smoking also immediately benefits children and non-smokers who are exposed to the second-hand smoke of active smokers.

[100] In her second affidavit, Dr Egbe makes the following remarks:

100.1 Available evidence suggests that smokers are at an increased risk of contracting the novel coronavirus (SARS­ CoV-2), the virus that causes COVID-19, due to smoking upregulating angiotensin-converting enzyme-2 ("ACE-2"). ACE-2 has been found to be both the coronavirus receptor as well as an enzyme that SARS-CoV-2 is capable of using for viral activation.

100.2  Available evidence shows that smokers who contract COVID-19 are at an increased risk of developing worse outcomes of the disease, including hospitalisation, ICU admissions and needing mechanical ventilation.

100.3 The 26 May 2020 WHO scientific brief on ' Smoking and COV/O-19' was updated on 30 June 2020 and includes more and newer studies, but maintains the same conclusion, namely: 'Given the well-established harms associated with tobacco use and second-hand smoke exposure, WHO recommends that tobacco users stop using tobacco'.

100.4 The updated WHO scientific brief relies on 34 peer­ reviewed studies (26 observational studies and 8 meta­ analyses) based on original research.

100.5 Of the 11 publications that Dr Morjaria submitted to support his scientific claims, six out of 11 (54.5%) are pre­ prints, three out of 11 (27.3%) are review and comment papers, while only two out of 11 (18.2%) were original peer­ reviewed research studies (one based on secondary data analysis of hospital records and the other an observational cohort study).

 

The affidavit of Professor London

[101] Prof London is a Professor at the School of Public Health and Family Medicine at UCT. He has deposed to two expert affidavits which, among other things, address the medical reasons for the current temporary ban. Prof London's first affidavit highlights the following:

101.1 There is a strong body of evidence published in peer­ reviewed high-impact journals confirming that smoking is associated with severe COVID-19 disease.

101.2 Studies have found that smoking upregulates an enzyme receptor (ACE-2) which is the known receptor for the virus that causes COVID-19. The virus makes use of this receptor for entry into the cell. Upregulation, which means an increase in the number of receptors on the surface of target cells, renders the cells more vulnerable to entry of the virus and may explain the increased risk of severe COVID-19 infection. Studies suggest that both current and past smokers have upregulation of ACE-2 receptors, but current smokers more so than past smokers.

101.3 The evidence regarding smoking increasing the risk for infection is less strong, but is still of concern. Household members exposed to environmental tobacco smoke have an increased risk from and of coughing. There is a well­ established association between the act of smoking and coughing. Household members exposed to environmental tobacco smoke have an increased risk

101. Smoking behaviour is characterised by inhalation and by repetitive hand-to-mouth movements, both of which are strongly discouraged under COVID-19 control measures.

[102] According to the Respondents, the experts' views in favour of the prohibition on the sale of tobacco products during lockdown, justify such prohibition.

 

Professor London's second affidavit

[103] The key aspects of Professor London's second affidavit regarding smoking being a risk factor for COVID-19 infection can be summarised as follows:

103.1 It is not correct that ' there is generally consistent evidence' that current smokers have a lower risk of infection and/or of developing COVID-19 at a level of severity that requires hospitalisation;

103.2 Most of the literature in favour of this view is on pre-print platforms that publish articles that are not peer-reviewed;

103.3 There are, at the same time, papers in both the published and pre-print literature that suggest increased risk of COVID-19 infection and/or hospitalisation amongst smokers; and

103.4 the correct conclusion should be to recognise that the findings in the literature on the risk of infection or hospitalisation for COVID-19 are mixed.

[104] As regards smoking being a risk factor for severe COVID-19, and specifically Dr Morjaria's assertion that 'the current evidence does not demonstrate that the severity of COV/0-19 outcomes is greater in current smokers than non­ smokers', Prof London says the following:

104.1 It is not correct that the current evidence does not demonstrate that the severity of COVID-19 outcomes is greater in current smokers than non-smokers;

104.2 A careful reading of the literature provides consistent evidence that smoking is a risk factor for severe COVID-19; 104.3This is borne out by the most recent Scientific Brief of the WHO on 30 June 2020 and confirmed by more recent findings from five studies published in peer-reviewed scientific journals since then;

104.3 The literature that Dr Morjaria relies on to argue that smoking is not associated with severe COVID-19 disease is based almost entirely on articles published as pre-prints that are not peer-reviewed, or are opinion pieces that are articles mostly written by authors with clear conflict of interest - only two of the 11 papers he cited have been through peer-review; 104.5While Dr Morjaria acknowledges that findings from pre­ print publications should be treated with caution, he exercises no caution in using these findings to argue against the risk of smoking; and in contrast, the data on the association of smoking with COVI0-19 severity is based on a consistent and strong body of publications, all in the peer-reviewed literature.

[105] It will be recalled that Dr Morjaria argues that, even if some of the diseases that are generally accepted risk factors for COVI0 -19 severity can be caused by smoking, these diseases occur over a long period of time, and that the impact of smoking in relation to COVID-19 risk is only likely to arise over years. Professor London, however, has this to say:

105.1 This argument incorrectly assumes, with no evidence, that there is only one pathway by which smoking is linked to COVID-19 risk; and

105.2 There is more than one way in which smoking might lead to increased risk for COVID-19, both directly due to the act of smoking, as well as due to the increased occurrence of diseases that are recognised as increasing the risk for severe COVID-19 disease. This means that the risk may be developed in a much shorter period of weeks or months. It is therefore not the case that the risk requires many years of smoking to develop.

[106] As regards Dr Morjaria's argument that the lack of statistical adjustment for confounders invalidates any inference about the risk of severe COVID-19 amongst smokers, Prof London says this is incorrect, for a number of reasons:

106.1 Confounding should only be done for factors, and not on a causal pathway;

106.2 There are studies confirming smoking risk that have adjusted appropriately for confounding and confirmed strong relationships;

106.3 Adjusting for diseases caused by smoking which are on the causal pathway will lead to bias and cannot clarify the effect of smoking;

106.4 Dr Morjaria repeatedly cites studies that have adjusted incorrectly for co-morbidities on the causal pathway to support his argument, but does not appreciate that such adjustment is statistically incorrect;

106.5 Even when there 1s an absence of adjustment for confounding, the lack of adjustment does not necessarily invalidate an association. Proper adjustment may even strengthen an association as was demonstrated in one Chinese study; and

106.6 The lack of adjustment in the literature therefore cannot be used to discount a consistent and considerable body of evidence that smoking is associated with a higher risk of severe COVID-19.

[107] It is well to recall that the Applicants set out in detail the adverse impact the prohibition has on them as participants in the tobacco supply chain, as well as consumers. To recap, these include:

107.1 BATSA, the First Applicant, which is alleged to have lost substantial revenue;

107.2 The Second Applicant, JTI, which, although permitted by Regulation 45 to harvest and store the crops, is unable to sell those crops to local buyers and is also said to have sustained substantial losses;

107.3 The Third and Fourth Applicants (Ms Melinda Ferguson and Mr Keoagile Molobi), who, as consumers of tobacco and vaping products, are said to be severely prejudiced by the prohibition on the sale of tobacco and vaping products;

107.4 the Fifth Applicant (LTP), which processes tobacco leaf acquired from various tobacco farmers and, having done so, sells it to tobacco leaf dealers or manufacturers who produce tobacco products;

107.5 The Sixth Applicant (SATTA) and its members who, it is alleged, will suffer severe prejudice and irremediablefinancial hardship;

107.6 The Seventh Applicant (BTFA) and its members who, it is alleged, will also suffer severe prejudice and irremediable financial hardship;

107.7 The Eighth Applicant (SAAi), which alleges that currently all harvested tobacco is being stored on farms;

107.8 The Ninth Applicant (SAITA), which represents the interests of informal traders, street vendors, hawkers and spaza shop owners throughout South Africa, and alleges they are being severely prejudiced; and

107.9 The Tenth Applicant (JJ Cale), which is one of the largest tobacconist groups in the country and says it is being severely prejudiced by the prohibition.

[108] In addition, the Applicants allege adverse implications for the fiscus due to the continuing ban on the sale of cigarettes. Below we outline the Respondents' response thereto.

 

The Respondent's perspective of the adverse effect to the fiscus

[109] In response to the Applicants' allegations, the Respondents refer to a study by Genesis Analytics ("GA") dated 15 June 2020 and confirmed in the affidavit deposed to by Mr Malherbe on the economic impact and loss to the fiscus. The GA report addresses the following issues:

109.1 The extent of the economic harm caused to the tobacco industry (both as a whole and with respect to the various parts of the value chain) caused by Regulation 45's ban on the sale of tobacco, tobacco products, e-cigarettes and related products, except for export; and

109.2 The harm to the fiscus caused by the ban.

[110] The Respondents explain that as regards the first issue, GA starts by stating, firstly, that as the ban on sales (in the original version of Regulation 45) covered the entire domestic value chain, from raw tobacco sales through to final tobacco products sold to consumers at the retail level, it caused a degree of economic harm to the economic actors along the value chain. Accordingly, the question therefore is not whether the ban will have that adverse impact, but whether the magnitude of the impact claimed by the Applicants has been fairly presented and is supported by evidence.

[111] Secondly, because of the fact that all local production activities, as well as all sales of tobacco and tobacco products for the export market, are permissible under Regulation 45 and the other relevant Covid-19 regulations for Alert Level 3, the adverse impacts of the ban are mitigated to some extent. With specific reference to sales for exports, in 2019 it was reported that 10% of raw tobacco produced by local tobacco farmers was for export and in 2018 finished tobacco products to the value of $191.5 million were exported. According to a 2016 report published by BATSA, the largest local manufacturer and exporter of tobacco and tobacco products, exports accounted for 16% of sales revenue.

[112] Thirdly, an ironic feature of the impact of the ban is that to the extent illicit trade in cigarettes grows, the adverse economic impact of the ban will be reduced. This effect is not necessarily in a one­ to-one ratio, as supply chains are likely to change with the shift from legal to illicit channels, for example if more imported inputs are used. Nonetheless, analyses that predict both maximum economic damage and minimum impact on levels of smoking are on the face of it not credible.

[113] Fourthly, the harm is time-bound, because the ban is temporary, and not permanent. The harm will be felt for the duration of the ban and will be reduced once the ban is lifted, but not eliminated, because the ban may cause market participants or consumers to exit. It also follows that the longer the ban, the greater the harm that will be experienced.

[114] Fifthly, central to the assessment of the economic impact of the ban is the likely impact on job losses across the value chain, which in turn depends on quantification of the employment numbers across the value chain immediately before the ban, and therefore the potential jobs at risk. According to the GA report, when assessing those numbers, regard must be had to direct employment (i.e. jobs that are directly in the tobacco value chain), indirect employment (i.e. jobs within the supply chains of tobacco farmers and manufacturers) and induced employment (i.e. jobs that occur as a result of consumption spending by people employed either directly or indirectly within the tobacco value chain). The total supported number of jobs is the sum of all direct, indirect and induced jobs.

[115] Sixthly, there is a significant disparity between total supported jobs alleged by the deponent to BATSA's founding affidavit, Mr Joubert (725 100 jobs) and a 2020 BATSA-commissioned report by Oxford Economics (296 000 jobs). Moreover, a BATSA Economic Impact Assessment from 2016 documenting BATSA-only employment numbers states that BATSA supports a total of 72 279 jobs in the economy (direct, indirect and induced). The report surmises that as BATSA is estimated to account for 78% of the cigarettes sales in South Africa, it is highly unlikely that Mr Joubert's estimate is accurate.

[116] Seventhly, the GA reports points out that Mr Joubert places the vast majority of total industry jobs in the retail sector (700 000 jobs or 97% of the stated employment within the tobacco value chain). As retailers include not only tobacconists, but also grocery stores, liquor stores, corner shops, fuel stations and others, it is inaccurate and inappropriate economically to imply that employees in all retailers which sell tobacco products are part of the tobacco value chain.

[117] Eighthly, the GA report acknowledges that while there may be a drop in revenue in these retail outlets, unless tobacco products are a dominant source of revenue, it is more likely that jobs would be retained in retail outlets as the many other products on sale under Alert Level 3 would cushion the loss in revenue from tobacco products. Flowing from this, it is a dubious interpretation that the jobs of employees employed in retail outlets are at risk if tobacco products are not sold.

[118] Ninth, as regards the statements in the affidavit of Mr Makgoja on behalf of the Ninth Applicant (SAITA) that on average informal traders earn 25% of revenue from the sale of cigarettes and that more than 50% of its 8 000 members will be forced to close as a result of the ban, on the face of things it is disproportionate to link a 25% reduction in revenue to the closing of 50% of such informal traders. Most informal traders and spaza shops also carry a range of other products including soft drinks, water, sweets, chips, snacks, fruit and airtime.

[119] Lastly, it is not clear whether the stated 25% reduction in revenue for informal traders takes account of new trade in illicit tobacco products to which Mr Joubert refers in his affidavit.

[120] The Minister contends that the Applicants' allegation that the loss in excise revenue has ' skyrocketed and will continue to escalate' during the period of the prohibition of local sales of tobacco products appears to be based on the (incorrect) assumption that all products sold (illegally) during this period have been and will be illicit (i.e. not duty paid). The assumption is incorrect because there is no evidence of which the Minister is aware, and there is no reason to think, that no licit (i.e. duty paid) tobacco products are being sold. Both excise duty and VAT are paid on sales of tobacco products by their manufacturers. To the extent that in the period since 27 March 2020 sellers have sold licit tobacco products from the inventories they had on that date, those sales, though unlawful, have not resulted in a loss of the excise duty and VAT which was paid or is payable by the manufacturers in respect of those products. Consequently, it is wrong of the Applicants to equate the (unlawful) local sales of tobacco products in the period since 27 March 2020 with the sales of illicit (i.e. no duty paid) tobacco products and it is wrong to think that no tobacco products sold (unlawfully) since 27 March 2020 have been licit (duty paid).

[121] In advancing further argument on the fact that the loss to the fiscus due to the prohibition on the sale of cigarettes as presented by the Applicants may be exaggerated, the Minister refers to the supplementary affidavit of Dr Ross dated 11 July 2020, wherein she addresses the adverse impact on the fiscus resulting from the ban on the domestic sale of tobacco products, and states that it is incorrect to assume that during the prohibition all the money which consumers would otherwise have spent on duty-paid cigarettes, will be spent on non-duty-paid cigarettes. For one thing, so says Dr Ross, especially in the initial period of the ban, many illegal sales by retailers will have been of stockpiled cigarettes on which excise duty was paid (i.e. licit not illicit cigarettes). For another, the increase in the price of cigarettes and the consequent estimated 20% to 35% decrease in the sales of cigarettes will have diverted some of the money that would have been spent on cigarettes to goods and services on which VAT is charged and collected.

[122] In her first affidavit, dated 15 June 2020, Dr Ross addresses the alleged adverse impact on the fiscus of the ban on the domestic sale of tobacco products. She points out that, according to a study by a team of researchers, including Dr Ross herself, published in 2020 and entitled 'The economic cost of smoking in South Africa, 2016' , the annual economic loss caused by tobacco use is at least R42 billion, whereas the value of cigarette excise taxes collected during the last financial year from locally manufactured cigarettes was only about R13.9 billion (i.e. one third of the annual economic loss). It is the submission that this puts the Applicants' claims regarding lost excise taxes in their proper context.

[123] Although the Respondents accept the prohibition did result in illegal sales of tobacco products, they argue that there is a material difference between, on the one hand, sales of tobacco products which are illegal because of the (temporary) ban on all sales of tobacco products and, on the other hand, sales of illicit (i.e. no excise duty paid) cigarettes during "normal" times when sales of tobacco products are permitted. Moreover, the evidence (especially the demand-side evidence, which, according to the Respondents is the most reliable of the available evidence) suggests, first, that the Applicants have overstated the extent of such cigarette sales and of smoking in the period since the start of the ban on 27 March 2020 and, second, their claim that the increase in the illicit trade during this period will have significant, lasting effects on the tobacco industry.

 

The Respondents' perspective on the impact of Regulation 45 on consumers

[124] In the summary of the Applicants' case, we outlined the averments made by the Third and Fourth Applicants regarding the impact of the ban of tobacco products on them as consumers. In the founding affidavit, duly confirmed by the Third and Fourth Applicants, BATSA alleges that the denial of access to tobacco and vaping products 'creates frustration and increases irritability and stress, and this is likely to have a negative impact on people's emotional well-being'. This allegation is based on the evidence of Dr Proctor. The Respondents have assailed the admissibility of Dr Proctor's evidence, but as pointed out earlier, this aspect is dealt with at the analysis stage of the judgment. The Respondents retort to this averment by Dr Proctor by referring to the expert affidavits of Professor Nyamande and Dr Egbe.

[125] Firstly, Dr Proctor claims that the reason people consume tobacco and vaping products is because they like them and find them pleasurable, whereas Dr Egbe says this ignores the addictive nature of these products. Secondly, Dr Proctor states that consumers use tobacco products for relaxation, sensory pleasures or stimulation, and overlooks the fact that they are satisfying cravings for an addictive substance (i.e. nicotine). Dr Egbe on the other hand, explains that the pharmacological and behavioural processes that determine tobacco addiction are similar to those that determine addiction to drugs such as heroin and cocaine. She adds that the process of linking the ritual of cigarette smoking to sensory actions is characteristic of Ivan Pavlov's classical conditioning psychology, which makes smokers link some everyday activities and cues to their addiction to nicotine. Thirdly, as regards Dr Proctor's allegation that tobacco and vaping products help in dealing with the stresses of life and contributing to emotional well-being, Dr Egbe says that the link between smoking and stress relief is an ongoing debate in psychology and addiction science. While many studies have reported that the relief of stress is one of the reasons for smoking, many others have found that smoking when under stress could make some smokers feel worse off. Yet other studies have found that abstinence from smoking reduces stress levels in chronic smokers. According to Dr Egbe, the stress relieved by smoking is probably the stress induced by withdrawal (nicotine deprivation), i.e. smoking does not in itself reduce stress. Fourthly, as regards Dr Proctor's comparison of the consumption of tea and coffee to tobacco and vaping products, and concluding that 'both nicotine and caffeine are plant alkaloids that act on the central nervous system and both nicotine and caffeine are considered addictive', Dr Egbe explains that unlike caffeine, tobacco use is known to kill between half to two-thirds of its users, and nicotine in itself is harmful. It is therefore not correct to suggest that both products should be treated in the same manner because they are plant alkaloids. Fifthly, as regards Dr Proctor's comparison of South Africa with countries which have not temporarily banned the sale of tobacco products during the COVID-19 lockdown, Dr Egbe states that the comparison is not justified, because many countries are not faced with the same health challenges as South Africa. She states that South Africa has a high prevalence of HIV, TB, Type-2 diabetes and substance abuse, all of which contribute towards a more health­ compromised population than most other countries.

[126] According to the affidavit of Professor Kennedy Nyamande there is a clear association between cigarette smoking and poor outcomes in COVID-19. Meta-analyses of at least 15 studies have provided useful data on the relationship between COVID-19 and outcomes in smokers: smokers are 1.4 times more likely to have severe symptoms compared to non-smokers, and are 2.4 times more likely to be admitted to ICU, to require mechanical ventilation, or to die when compared to non-smokers. There is no doubt that cigarette smoking is associated with severe disease and high mortality. Prof Nyamande states that should the cigarettes be freely available for sale, inter alia, it will risk swamping both the public and private health care systems with smokers suffering from the most severe forms of Covid-19. This cannot be allowed at a time when as a country, we are focused on flattening the curve.

[127] We have endeavoured to summarise the highlights of the parties' respective cases; however, due to the voluminous amount of evidence, not all the affidavits have been included in the summary. At the analysis stage, reference is made to those that impact on our decision-making.

[128] As can be discerned from the aforegoing summaries, the parties heavily rely on expert evidence. Counsel for the applicants criticized the evidence of Professor London on the basis of his association with BATSA. Aspersions were case on his independence as an expert. The principles governing the admission of expert evidence are restated in Schneider NO v AA 2010 (5) SA 203 (WCC) at 211 E as follows:

"In this connection it is necessary to deal with the role of an expert. In Zeffertt, Paizes, & Skeen The South African Law of Evidence at 330, the learned authors, citing the English judgment of National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The 'lkarian Reefer') [1993] 2 Lloyd's Rep 68, set out the duties of an expert witness thus:

'1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.

2. An expert witness should provide independent assistance to the court by way of objective, unbiased opinion in matters within his expertise An expert witness should never assume the role of an advocate.

3. An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.

4. An expert witness should make it clear when a particular question or issue falls outside his expertise.

5. If an expert opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.'

In short, an expert comes to court to give the court the benefit of his or her expertise. Agreed, an expert is called by a particular party, presumably because the conclusion of the expert, using his or her expertise, is in favour of the line of argument of the particular party. But that does not absolve the expert from providing the court with as objective and unbiased opinion, based on his or her expertise for the purposes of that particular case. An expert does not assume the role of an advocate, nor give evidence which goes beyond the logic which is dictated by the scientific knowledge which that expert claims to possess."

In Michael v Linksfield Park Clinic (Pty) Ltd 2001 (3) SA 1188 (SCA) at [37] the court further explained that a court will accept evidence of a witness if and when it is satisfied that such opinion has a logical basis, in other words that the expert has considered comparative risks and benefits and has reached 'a defensible conclusion'.

Our assessment of the expert testimony is informed by the aforegoing principles and in our view, none of the expert evidence may be outrightly rejected as their conclusions are logical.

Before evaluating the evidence, we deem it prudent to first deal with the FITA judgment wherein a similar challenge to Regulation 45 was adjudicated upon in the South Gauteng High Court and we consider the impact of that decision on the issues in casu.

 

The FITA judgment

[129] The challenges raised by the Applicants relating to the illegality of Regulation 45 have already been adjudicated and pronounced upon in Fair-Trade Independent Tobacco Association v President of the Republic of South Africa and Another ('FITA') (21688/2020) [2020] ZAGPPHC 246 (26 June 2020), the full bench of the Gauteng Division, Pretoria. We deem it prudent to deal with the matter upfront so that the evaluation of this matter is informed by the stance we have adopted regarding the FITA judgment and whether it constitutes binding authority. The respondents argued that this court was bound by the FITA decision and that it could only depart therefrom should we find that the decision was substantially erroneous. This argument is based on the opinion article 'Whose decisis must we stare?' by Supreme Court of Appeal Justice Malcolm Wallis.[8]

[130] It is argued that a unitary High Court structure was created by the Constitution Seventeenth Amendment Act of 2012 and the Superior Courts Act 10 of 2013. Consequently, the rules applied in relation to stare decisis are to be revisited. Section 166 (c) of the Constitution and the Superior Courts Act refer to a single High Court which consists of different divisions. Therefore, there are no longer separate divisions which collectively constituted the "Supreme Court", each with its own separate identity.

[131] This would result in the position where a judgment by a full court in any division binds all courts in all other divisions. However, another court would be entitled to depart from the judgment if it regarded the first decision as substantially erroneous.

[132] An analysis of the Superior Courts Act 10 of 2013 ('Superior Courts Act) undermines this argument proposed by the Respondents. Section 1 of the Superior Courts Act defines:

1. the 'High Court as 'the High Court of South Africa referred to in section 6(1)';

1.25cm; margin-bottom: 0cm; line-height: 150%"> 2. 'full court', in relation to any Division. as 'a Court consisting of three judges'; and

3. 'head of court', in relation to:

(a) 'the Constitutional Court, means the Chief Justice';

(b) 'the Supreme Court of Appeal, means the President of that Court';

(c) 'any Division of the High Court, means the Judge President of that Division'; and

(d) 'any court of a status similar to the High Court, the most senior judge of such court'.

[133]  Section 14 of Superior Courts ' Act reads as follows:

'Manner of arriving at decisions by Divisions

(1) (a) Save as provided for in this Act or any other law, a court of a Division must be constituted before a single judge when sitting as a court of first instance for the hearing of any civil matter, but the Judge President or, in the absence of both the Judge President and the Deputy Judge President, the senior available judge, may at any time direct that any matter be heard by a court consisting of not more than three judges, as he or she may determine.

(b) A single judge of a Division may, in consultation with the Judge President or, in the absence of both the Judge President and the Deputy Judge President, the senior available judge, at any time discontinue the hearing of any civil matter which is being heard before him or her and refer it for hearing to the full court of that Division as contemplated in paragraph (a).

(2) For the hearing of any criminal case as a court of first instance, a court of a Division must be constituted in the manner prescribed in the applicable law relating to procedure in criminal matters.

(3) Except where it is in terms of any law required or permitted to be otherwise constituted, a court of a Division must be constituted before two judges for the hearing of any civil or criminal appeal: Provided that the Judge President or, in the absence of both the Judge President and the Deputy Judge President, the senior available judge, may in the event of the judges hearing such appeal not being in agreement, at any time before a judgment is handed down in such appeal, direct that a third judge be added to hear that appeal.

(4) (a) Save as otherwise provided for in this Act or any other law, the decision of the majority of the judges of a full court of a Division is the decision of the court.

(b) Where the majority of the judges of any such court are not in agreement, the hearing must be adjourned and commenced de novo before a court consisting of three other judges.

(5) If, at any stage during the hearing of any matter by a full court, any judge of such court is absent or unable to perform his or her functions, or if a vacancy among the members of the court arises, that hearing must-

(a) if the remaining judges constitute a majority of the judges before whom it was commenced, proceed before such remaining judges; or

(b) if the remaining judges do not constitute such a majority, or if only one judge remains, be commenced de novo, unless all the parties to the proceedings agree unconditionally in writing to accept the decision of the majority of the remaining judges or of the one remaining judge as the decision of the court.

(6) The provisions of subsection (4) apply, with the changes required by the context, whenever in the circumstances set out in subsection (5) a hearing proceeds before two or more judges.

(7) During any recess period, one judge designated by the Judge President shall, notwithstanding anything contained in this Act or any other law, but subject to subsection (3), exercise all the powers, jurisdiction and authority of a Division.

(8) No judge may sit at the hearing of an appeal against a judgment or order given in a case which was heard before him or her.'

[134] It is evident from the definitions of High Court, head of court and full court set out in section 1, read with section 14 of the Superior Courts Act, that section 14 (4) (a) provides that the decision of the majority of the judges of a full court of a Division is the decision of the court of that particular Division. It is not a decision of the High Court. As such, the provisions of section 14 (4) (a) do not lend support to the argument that a decision of a full court of any one Division is binding on all other Divisions. Similarly, sections 15 (1) and 16 (1) (a) of the Superior Courts Act favour the approach that the various Divisions of the High Court have maintained their separate identity. This approach is bolstered by sections 5 and 20 of the Superior Courts Act. Consequently, the amendment to the rules of stare decisis advocated by the Respondents cannot be sustained in light of the provisions of the Superior Courts Act. Our approach to the rules of stare decisis finds support in the Constitutional Court decision of Freedom of Religion v Minister of Justice and Others, which states that "Since the decision of one division of the High Court f South Africa does not bind all other divisions, the need for uniformity and finality demands the intervention of this court.”[9]

[135] Even if we are incorrect in our decision hereon, we would be entitled to depart from the decision in FITA if we were of the view that it was substantially erroneous. Section 6 (2) (i) of PAJA provides that administrative action may be reviewed if it is unconstitutional. If PAJA does not apply, Regulation 45 would be unconstitutional if it was found that it violates fundamental rights. As mentioned, there was no constitutional attack on Regulation 45 in the FITA case and that judgment accordingly does not provide authority on the constitutional issues raised before us.

 

The Constitutional challenge to Regulation 45

[136] The Applicants challenge the constitutionality of Regulation 45 on the following grounds:

136.1 First, it is an unjustifiable limitation on the right of tobacco farmers and tobacconists to choose their trade (conferred in section 22 of the Constitution) and that it is an irrational interference with the rights of tobacco manufacturers, wholesalers and retailers to practice their trade;

136.2 Second, it constitutes an arbitrary deprivation of the property right of participants;

136.3 Third, it amounts to an unconstitutional infringement of the rights of consumers of tobacco and vaping products to dignity and privacy in violation of sections 10 and 14 of the Constitution;

136.4 Fourth, it amounts to an unconstitutional infringement of the right to bodily and psychological integrity as envisaged in section 12 (2) of the Constitution.

[137] The applicants submitted that ' Regulation 45 violates the rights of every participant in the supply chain for tobacco and vaping products.' We have set out in the summary of substantial facts the basis on which each applicant alleges a violation of their constitutionally protected rights. The Minister disputes their allegations.

[138] To assess the rights affected in the matter, we refer, inter alia, to sections 7 and 8 of the Constitution, namely:

'7. (1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.

(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.

(3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.

8. (1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.

(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.

(3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court-

(a) in order to give effect to a right in the Bill of Rights, must apply, or if necessary, develop, the common law to the extent that legislation does not give effect to that right; and

(b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1).

(4) A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person.'

[139] As noted, the South African Constitution has a general limitation clause (s 36) that provides that rights may be limited by a law of general application, when it is 'reasonable and justifiable in an open and democratic society based on dignity, freedom, and equality'.

 

The right to dignity

[140] Section 10 of the Constitution provides that ' everyone has inherent dignity'. The Applicants submit that the right to dignity includes the right to be treated with respect; the right of adult persons to make their own decisions about what is in their best interests between various possibilities; and to regulate their own affairs. Central to the right to dignity is the right to maintain individual autonomy.[10] We were referred to a comment by Ngcobo J in the oft-quoted Barkhuizen v Napier.

'... self-autonomy, or the ability to regulate one's own affairs, even to one's own detriment, is the very essence of freedom and a vital part of dignity'.[11]

[141] We agree that individual autonomy refers to the capacity to be one's own person, to live one's life, lawfully, according to reasons and motives that are one's own and not the product of manipulative external forces. It is alleged that the effect of Regulation 45 denies consumers the choice of buying tobacco and vaping products during the lockdown, impacting on their right to choose whether or not to consume tobacco, vaping or related products.

[142] The Minister denies that Regulation 45 limits the right to dignity. She contends that any impediment to the right to dignity would be ' incidental' since the main purpose of Regulation 45 is to regulate commercial activity[12]. This contention, labelled as 'astonishing' by the Applicants, is inconsistent with the Minister's justification for Regulation 45. The Minister states, repeatedly, that the purpose of Regulation 45 is ‘to reduce the incidence of smoking’[13]; accordingly it is incomprehensible how she could maintain that any effect on smokers is ' incidental'. The Applicants contend that the infringement of the autonomy of smokers and vapers results in a limitation of their right to human dignity in terms of the provisions of s 10 of the Constitution. The Minister bears the onus of justifying this limitation. According to the Applicants, she has failed to do so.

 

The right to privacy

[143] An individual's right to privacy is contained in s 14 of the Constitution. The right has been described as 'a right to be left alone'.[14] This right is linked to the right and principle of autonomy. In Minister of Justice v Prince it was held that 'the right to privacy entitles an adult person to use or cultivate or possess cannabis in private for his or her personal consumption'.[15] It is the Applicants' argument that the same applies to tobacco and related products and activities, where a person's choice of conduct in their own home should not be intruded on by the Government. The Applicants allege that Regulation 45 denies consumers the right to purchase tobacco and vaping products, including for use in the privacy of their homes where consumers should be able to conduct themselves with an expectation of privacy. According to the Applicants this constitutes an unjustifiable intrusion by the State into the private lives of individuals, especially considering the context of a lockdown where people were confined to their homes.

[144] The Minister denies that Regulation 45 limits the right of an individual to privacy, maintaining that any effect on the right to privacy is 'incidental since the main purpose of Regulation 45 is to regulate commercial activity.[16] There does not appear to be merit in this unpersuasive and un-explained contention. Applicants argued and demonstrated that Regulation 45 violates the right to privacy of smokers and vapers. Again, the Minister bears the onus of justifying this limitation and it was submitted that she failed to do so.

 

The right to bodily and psychological integrity

[145]  Section 12 (2) of the Constitution provides that '[e]veryone has the right to bodily and psychological integrity', which includes the right to ' security in and control over their body'.[17] This is the right of adults to make autonomous decisions regarding how they want to maintain their bodily and psychological integrity during times of stress, and it cannot be disputed and has been documented, that the pandemic and lockdown periods and the results thereof, have contributed to psychological pressure on the general population, leaving many with feelings of immense stress, anxiety and insecurity. Undoubtedly, as argued, 'control' includes the protection of one's autonomy, or bodily self-determination against interference and a law that limits, inter alia, the autonomy to take steps, including smoking, to manage one's stress levels and mental health issues. Not being allowed to do so, even if their conduct may harm their health, constitutes an infringement of this right.

[146] It was demonstrated that denial of access to tobacco and vaping products, to those who were used to and craved these products, created frustration and increased irritability and anxiety, which was likely to have a negative impact on such individual's emotional well-being, which in turn would impact on those they maintained relationships with. Adults should be able to choose the products they use to cope with stress and anxiety. In depriving smokers/vapers of the ability to use their products of choice to find calm and relaxation in stressful circumstances, the Minister infringed their right to personal autonomy and bodily integrity.[18] In support of their contentions the Applicants, in argument, referred to the affidavit of the Third Applicant, Ms Ferguson, who deals with the various infringements to her constitutional rights in detail, brought about by the Regulation 45 prohibition. There are also affidavits of other consumers who describe the violation of their constitutional rights resulting from the negative effects of Regulation 45 on them. Applicants maintain that Respondents' response that their case hinges on Dr Proctor's evidence is misguided.

[147] The Minister's stance appears to be that the interference with the rights of consumers is incidental. She maintains that argument should commence with reference to the primary right that may be violated, namely the right of the sellers of tobacco products, with reference to s 22 of the Constitution, the right to freedom of trade. Applicants' counsel appeared to be annoyed at the argument of the Minister and reminded the court that the purpose of the prohibition was, after all, to stop people smoking, so as not to get infected and occupy ICU beds. This is the rationale of the prohibition, not an ancillary issue.

[148] The Respondents maintain, with reference to a Constitutional Court judgment, Dawood,[19] that the Constitutional Court jurisprudence provides that a litigant can only rely on the right to dignity, where that is the primary right being violated. This judgment related to the constitutionality of s 25 (4) (b) of the Aliens Control Act 96 of 1991, in so far as foreign spouses married to South African citizens or permanent residents may be refused temporary residence permits by immigration officials. The Court confirmed the High Court's ruling that this provision violated the Constitutional right to dignity and emphasised that the Court had on several occasions emphasised the importance of human dignity to our constitutional scheme and that, while quoting from s 1 of the Constitution, it is clear from the text of the Constitution itself that human dignity is a fundamental value of our Constitution.

[149] In that matter the primary right implicated was the right to dignity and that was the right upon which the Court focused. We are satisfied that the Respondents misconstrued the gist of the Dawood judgment. Applicants have argued and showed that the case is not about the rights of the sellers, but, since the prohibition is to stop the purchase of tobacco products, with the aim that these will not be consumed, the real target is the consumers and the violation of their rights, although the consumption follows a prohibited transaction. Accordingly, Applicants maintain that the Minister, who bears the onus of justifying this limitation, has failed to do so.

 

The right to choose a trade or profession

[150] As regards a violation of s 22 of the Constitution, that section provides that every citizen has the right to choose his/her trade, occupation or profession freely. If it is demonstrated that the right to choose a trade by those involved in the tobacco value chain has been violated by Regulation 45, the Minister must show that the justification is justified. As pointed out on behalf of the Applicants, the Constitutional Court[20] has held that the right to choose a trade includes the right to practice such trade and a law that prevents someone from doing so, limits the person's rights. Ngcobo J, (as he then was) explained the importance of the right to choose one's trade :

'What is at stake is more than one's right to earn a living, important though that is. Freedom to choose a vocation is intrinsic to the nature of a society based on human dignity as contemplated in the Constitution. One's work is part of one's identity and is constitutive of one's dignity. Every individual has a right to take activity which he or she believes himself or herself prepared to undertake as a profession and to make that activity the very basis of his or her life. And there is a relationship between the work and the human personality as a whole.'

The test is whether the regulation is rationally connected to a legitimate government purpose; and whether it infringes any of the rights in the Bill of Rights.[21] Such limitation will be unconstitutional and invalid unless it can be justfied in terms of the provisions of s36 of the Constitution.

[151] The rights of citizens, as sellers, whose rights to trade have been violated by Regulation 45, includes tobacconists, such as the Tenth Applicant, who sell only tobacco products. Clearly the Regulation has violated his/her right to practice a chosen trade. In the same way the rights of citizens who are tobacco farmers, have been violated, regard being had to relevant affidavits. The tobacco farmers have explained that the bottleneck in the tobacco supply chain occurred as a result of BATSA not being able to buy processed tobacco, in order to manufacture tobacco products that they are able to sell. The sale of the products may not be prohibited in law, by Regulation 45, but sellers are in a position where they are effectively not able to sell, as nobody may purchase their products and they have explained that they may go out of business.

[152] We do not intend to traverse all the comments of farmers relating to the trade and financial constraints caused by current restrictions experienced as a result of the impact or Regulation 45. The farmers make it clear that they are not prohibited from selling their crops, but there is no market for their produce, with the result that farmers, workers, families and their dependents suffer tremendously. It is maintained, and it does not appear to be an alarmist view, that tobacco farming in South Africa is on the verge of total destruction. We may add that the sellers (including the export market) have shown that the recent amendment to Regulation 45 has not alleviated the problem.[22] Notwithstanding the Regulation 45 amendment, the right to trade has been impacted. The Minister's stance that it is just a temporary cash flow problem, was met with scathing comments and was of no solace to any of the Applicants. Applicants referred us to South African Diamond Producers Organisation v Minister of Minerals and Energy N.O. and Others[23] for authority for the view that a law prohibiting certain persons from entering into a trade or to continue practising the trade would limit the choice element in s 22, while adding that even if the choice of trade is not rendered unlawful, if it is rendered undesirable, difficult or unprofitable, then freedom to choose a trade is limited. In Affordable Medicines, the Constitutional Court confirmed that where the State limits a party's section 22 rights, it is required to justify such limitation in terms of section 36[24]. Applicants accordingly argued that they had demonstrated how their rights had been violated, including the rights contained in the first sentence of s 22 (1) of the Constitution. It was not contended by the First Respondent there was no violation of section 22. The onus therefore shifts to the Minister to justify the limitation, not only in respect of the violation of the right of a consumer, but also a violation of the right to choose trade freely.

 

Deprivation of property

[153] Another aspect argued, a linked constitutional right affected by the tobacco ban, is that no one may be deprived of property except in terms of law of general application and no law may permit arbitrary deprivation of property (section 25 (1) of the Constitution.) Applicants maintain that the impact of Regulation 45 is that it is depriving the participants in the tobacco supply chain of the way they choose to use their property. They refer, for example, to the Tenth Respondent, a tobacconist store, that has been compelled to close its doors, unable to use its property. The harvested produce on tobacco farms have been left to rot, unsold. It cannot be purchased as it cannot be on-sold. In BATSA's stores cigarettes are sitting in warehouses, as they cannot be sold.

[154] The Minister's explanatory response is that the prohibition is temporary and the interference with property rights not substantial. In this regard we were referred to another Constitutional Court judgment[25] where it was held that even a temporary prohibition on using your property, may amount to a deprivation and invasion of your rights. In dealing with the arbitrariness of deprivation of property, his Lordship, Yacoob J, stated as follows:

'a) The nature of the section 25(1) analysis

[34] The meaning of arbitrary in section 25 of the Constitution was determined in the FNB case ... [26] Ackermann J concluded that a deprivation of property is arbitrary within the meaning of section 25 of the Constitution if the law in issue either fails to provide "sufficient reason" for the deprivation or is procedurally unfair. To determine whether there is sufficient reason for a permitted deprivation, it is necessary to evaluate the relationship between the purpose of the law and the deprivation effected by that law...

[35] The FNB judgment also sets out the approach to be adopted if there is a connection between the purpose of the deprivation and the property or its owner. In these circumstances, there must be sufficient reason for the deprivation otherwise the deprivation is arbitrary. The nature of the relationship between means and ends that must exist to satisfy the section 25 (1) rationality requirement depends on the nature of the affected property and the extent of the deprivation ... However, the greater the extent of the deprivation the more compelling the purpose and the closer the relationship between means and ends must be.'

[155] We were directed to paragraph 45 of the judgment where it was pointed out that a temporary prohibition on using your property may still qualify as a deprivation. As regards the aspect of substantiality, we are satisfied that the rights across the value chain that have been shown to have been very substantially affected, have been demonstrated. Applicants argue that the Minister has failed to satisfy the test that the deprivation of property to the litigants in this matter has not been arbitrary. We are not dealing with a case of a minor deprivation. Tobacco farmers are threatened with the loss of their businesses, their livelihoods, tobacco processors have had to put their business on hold, thousands of jobs are at risk across the value chain.

 

Justification: the legal principles

[156] A non-contentious aspect of 'justification' is that the Minister bears the onus in this regard. She must show that the limitation of rights is justifiable and in order to do so she must present the factual matrix in support of her contentions. The test for justification, or for limiting constitutional rights, is contained in s 36 (1) of the Constitution, a 'much higher' test than the rationality test, as applied in the FITA judgment. The bar is set higher.

[157] To summarise, before the pandemic individuals could choose whether to smoke or not, although aware that smoking was considered to be harmful to one's health. The Applicants, in submitting that it has not been shown that anything has changed, argued that the Minister bears the onus of currently justifying the limitation of the constitutional rights of smokers and vapers. Accordingly, the Minister has to satisfy the proportionality test as contained in s 36 (1) of the Constitution. The proportionality test is a more stringent test than the rationality test which formed the subject matter of the FITA judgment, where the court found that the requirement of rationality is not a particularly stringent test and should not be conflated with the requirement of reasonableness.

[158] As argued, Parliament is subject to two different constraints when it enacts legislation: firstly ' there must be a rational relationship between the scheme which it adopts and the achievement of a legitimate governmental purpose'; and secondly Parliament ' must not infringe any of the fundamental rights enshrined in Chapter 2 of the Constitution'.[27] We have commented that Applicants argued that s 36 (1) of the Constitution requires more than rationality. We were referred to a summary of the Constitutional Court judgment of S v Manamela and another (Minister of Justice Intervening) for the test for justification in the context of s 36(1).[28]

[159] The crux of the issue which fell to be determined in that matter was whether the reverse onus provision contained in section 37 (1) of the General Law Amendment Act 62 of 1955, is consistent with the constitutionally entrenched right to a fair trial and, in particular, s 35 (3) (h) of the Constitution, which guarantees the right to be presumed innocent and not to testify during proceedings. Section 36 (1) of the Constitution provides that the rights contained in the Bill of Rights may only be limited if such limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose. We quote from the judgment of Manamela:

'It should be noted that the five factors expressly itemised in section 36 are not presented as an exhaustive list. They are included in the section as key factors that have to be considered in an overall assessment as to whether or not the limitation is reasonable and justifiable in an open and democratic society. In essence, the Court must engage in a balancing exercise and arrive at a global judgment on proportionality and not adhere mechanically to a sequential checklist. As a general rule, the more serious the impact of the measure on the right, the more persuasive or compelling the justification must be. Ultimately, the question is one of degree to be assessed in the concrete legislative and social setting of the measure, paying due regard to the means which are realistically available in our country at this stage, but without losing sight of the ultimate values to be protected'.

[160] Although section 36 (1) differs in various respects from section 33 of the interim Constitution, its application continues to involve the weighing up of competing values on a case-by-case basis to reach an assessment founded on proportionality. Each particular infringement of a right has different implications in an open and democratic society based on dignity, equality and freedom. There can accordingly be no absolute standard for determining reasonableness. This is inherent in the requirement of proportionality, which calls for the balancing of different interests.

[161] The Applicants emphasised that the Minister bears the onus of establishing the facts on which she relies as justification in terms of s 36 (1) of the Constitution, adding that 'where justification depends on factual material, the party relying on justification must establish the facts on which the justification depends'.[29] Accordingly ' [w]he re the state fails to produce data and there are cogent objective factors pointing in the opposite direction the state will have failed to establish that the limitation is reasonable and justifiable'.[30] The Constitutional Court has held that when the Minister attempts to justify a criminal prohibition, it is insufficient to merely maintain that there is a statutory or regulatory criminal offence, contained in a Government Gazette. When such a regulation is challenged, she must establish that the regulation will be effective. In Teddy Bear Clinic, supra, it was found that the Minister failed to discharge the burden.

[162] We must assess whether it has been established that Regulation 45 will stop people from smoking. The Minister relies on the trite principles that apply following the Plascon Evans judgment, since this is a matter where final relief is sought. At issue are facts and evidence. The issue was debated; Applicants rely on the Van Walbeek report. The Minister relies, inter alia on the evidence of Dr Ross,[31] an economist, that we will not repeat here. Dr Ross's testimony, in effect, does not differ from that of the Applicants.

[163] Applicants questioned whether it has been shown that the benefits of Regulation 45 exceed the harm it causes. If this answer is not responded to positively, the Minister has not established that she is successful under s 36 of the constitution. If the harms exceed the benefits, the regulation is not reasonable and justifiable in terms of s 36 (1). As noted, the Minister refers to freeing up beds in ICU that would otherwise be taken up by smokers, to prevent hospitals from experiencing strain on their resources. Thus, it is important to take note of the statistics and figures that we were alerted to. Applicants were happy to rely on numbers provided by the Minister, mainly relying on a report from the HSRC.[32] It was postulated that if 1% of 8 million smokers were to contract Covid-19, it would amount to 80 000 smokers of whom 5% may need ICU care, being a total of 4,000 beds. These were the only numbers provided, numbers that were defended by the HSRC, when the Applicants challenged the numbers. This is where the argument returns to the substantiating facts required from the Applicants. After doing the maths, it was shown on behalf of the Applicants that in fact only 500 beds will be required. This number is about 15% of the total ICU beds in South Africa; beds that will not be occupied simultaneously over the many months of the pandemic. In addition, it has not been demonstrated that the health care of the country will not be able to deal with the anticipated number of smokers in ICU beds or that health care will be better able to cope if those beds are not occupied.

 

Justification: the risk of contracting a more severe form of Covid-19

[164] It is the stance of the Minister that the prohibition in Regulation 45 is intended to stop smokers contracting a more severe form of Covid-19 and to protect them against themselves. To avoid a risk that when they get a more severe form of Covid-19 they might occupy a bed that the Minister believes should be available for someone else. In other word, to ' protect human life and health and to reduce the potential strain on the health care system'.[33] As argued, the justification for the stance of the Minister resulted in voluminous quantities of documentation reflecting the views and opinions of experts. Four main aspects related to a medical debate relied on by the Respondents as justification, were argued.

[165] Firstly, whether it was established that there is an association between being a smoker and contracting a more severe form of Covid-19. The Minister says there is such a risk, relying on the evidence of Dr Morjaria, who actually says the evidence in this regard is inconclusive. The second question raised is if there is an association between smoking and contracting a more severe form of Covid-19, will that association be reduced if a smoker stops smoking during the pandemic? It cannot be disputed that medical evidence shows that smoking harm mainly occurs over a long period of time. It seems illogical to believe that the harm will disappear if a smoker stops smoking for a few months. We are in agreement that this aspect has not been persuasively addressed on behalf of the Minister. The medical reports on which she relies do not deal satisfactorily with this issue. The fact that there are health benefits when a smoker quits, is not the issue, as general health benefits are not the issue. The issue remains, is there an increased risk of contracting a more severe form of Covid-19? The Applicants point out that this is a concession made by the Minister in her affidavit.[34]

[166] The expert on behalf of the Minister who deals with the issue is Dr Egbe,[35] who is not a medical doctor. She is a doctor in psychology with degrees in education. She states that given the newness of Covid-19 there is insufficient data to assess whether the chance of disease progression decreases when a person stops smoking, which is also what Dr Morjaria maintains. However, she then submits, rather unscientifically, that it is logical that to stop smoking during the lockdown, will have beneficial effects for smokers and non-smokers exposed to second-hand smoke if they contract the disease, as this will give their lungs 'a fighting chance.' The evidence presented on behalf of the Minister has not dealt with the matter satisfactorily. As argued, a fighting chance claim does not constitute a discharge of the burden of proof.

[167] The next question dealt with is whether Regulation 45 is effective when it comes to reducing the number of smokers, since it is maintained by the Minister, through her experts, that Regulation 45 is effective when it comes to reducing the number of smokers; if you stop smoking to give your lungs a fighting chance. If the Regulation is not going to result in a significant number of smokers quitting, it will not produce the outcome the Minister is seeking.

[168] The Minister is concerned that smoking increases the risk that a person may contract a more severe form of Covid-19. She refers to scientific literature in her answering affidavit, the 'preponderance' of which she believes shows that 'the use of tobacco products may increase the risk of transmission of Covid-19, but does increase the risk of developing a more severe form of the disease.’[36] Ultimately, the Minister places little or no reliance on the risk of infection[37] but asserts that 'smokers are more likely to develop severe disease with Covid-19, compared to non-smokers'.[38] She submits that this factor 'increases the strain on the public health system, by increasing the number of people who will need access to scarce resources such as hospital beds, ICU beds and ventilators'.[39]

[169] As indicated, if stopping smoking does not hold benefits as regards Covid-19 disease progression (as opposed to general improvements to health), it means that the objective of the prohibition will not be achieved and that the Minister has failed to justify the limitation of constitutional rights. Accordingly, the constitutional rights of smokers that have been referred to, were being limited while there was no evidence to show that to stop smoking would rectify and adjust the anticipated Covid-related health risks on which the Minister relied.

 

Justification: the behavioural aspects of smoking

[170] The Minister also relies on the behavioural aspects of smoking, and health concerns unrelated to the behavioural aspects of smoking. The sales ban has stimulated an extensive illicit market, illegal distribution channels have become established, which will undoubtedly have a lasting impact on public health and economic consequences, for it cannot be disputed that as long as the sales ban continues the government loses millions in revenue from the entire tobacco value chain. A particular health vulnerability among the country's most disadvantaged smokers is the apparently common practice of sharing cigarettes. This behaviour will logically become more common due to the huge increase in the cost of illegal cigarettes during the lockdown. This behaviour risks spreading the virus from person to person, according to reports.

The Minister has professed her concern that the use of tobacco products increases the risk that some people may contract Covid- 19 as a result of the repeated hand-to-mouth conduct associated with smoking. A cigarette acts as a vessel for viruses, and the hand and mouth exposure means droplets of saliva can easily and repeatedly be taken from one smoker to the next. Smoking discarded cigarette ends, behaviour which is allegedly common especially among the homeless population, risks exposing the smoker to infections.

[171] The Applicants argued that this concern could be addressed in a less restrictive manner through, amongst other measures, awareness campaigns relating to hygiene, hand washing and social distancing. That must be the reason why the government has implemented publicised education and awareness campaigns; demonstrating to members of the public how to implement measures to reduce the spread of the coronavirus. As mentioned by Applicants, the government has not prohibited the sale of cold beverages because bottles, glasses, cans or other receptacles are capable of being shared by individuals; it has attempted to educate consumers not to share beverage containers.

The Minister appears to accept that measures such as these will assist in alleviating the risks of such shared conduct, but it appears to be her stance that 'hazardous behaviour, such as the sharing of cigarettes, would increase if the prohibition on tobacco were to be lifted.[40] Applicants argue that the opposite is true; that the prohibition has increased the incidence of risky behaviour, as the growth of an illicit market for cigarettes at exorbitant prices has been encouraged.

[172] A different, alternative approach that has been suggested, that will allow the government to continue raising revenue, would have been to substantially increase the excise tax on tobacco products. If the government had doubled, or even tripled, the excise tax, it would substantially increase the price of tax-paid cigarettes, which would logically encourage smokers to quit or reduce their consumption. The result would be similar to that of a sales ban, but the revenue would be allowed to continue to flow to government.

[173] At the heart of the argument about the ban on the sale of tobacco products is health, and therefore medical research is under the spotlight, but the Minister's argument is far from convincing.

 

Proportionality in respect of each constitutional challenge

[174] We have already found that the evidence does not support a conclusion that Regulation 45 would reduce its stated purpose, namely, to reduce the incidence of smoking. Mr Cockrell argued that even we found that a 10% to 15% reduction in the number of smokers is sufficient for Regulation 45 to achieve its stated purpose, the Minister would still have to show that the benefits of Regulation 45 exceed the harm that it causes. In terms of section 36(1) the court is required "to weigh the extent of the limitation of the right against the purpose for which the legislation was enacted". This is explained in S v Makwanyane and Another[41] as the "... weighing up of competing values, and ultimately an assessment based on proportionality . . . which calls for the balancing of different interests."

[175] According to the version proffered by the Minister, the benefit of Regulation 45 is that it will free up ICU beds and ventilators by preventing smokers from contracting a more serious form of Covid-19. In argument, Mr Corkrell quantified that benefit and submitted that it yielded outcome as follows:

175.1 If 1% of the 8 million smokers in South Africa were to contract Covid-19 and if 5% of that number were to need ICU, this would translate to about 4 000 smokers needing ICU beds and ventilators.

175.2 According to Dr Egbe's evidence, says of those who contract Covid-19, 5% will need hospitalization and only 1% will need ICU admissions and possibly mechanical ventilators. The Minister assumed 5% would need ICU admissions and ventilators.

175.3 It has been established from Dr Ross's evidence that the number of people who will quit smoking as a result of the prohibition is between 800 000 and 1 200 000. Accepting a mid-range value of 1 million quitters this would mean that 500 fewer ICU beds and ventilators (i.e. one eight of 4 000) would be required as compared to what the position would have been had there been no prohibition on smoking. In other words, the prohibition on selling tobacco and vaping products will "free up" 500 ICU beds and ventilators that would otherwise have been required for smokers over the entire period of the pandemic.

175.4 Given that those 500 smokers would not all have required ICU beds and ventilators at the same time, an average period of 12 days in ICU must be assumed. A total period of one year for the pandemic and an even spread across the year means that at any time there will be 16.4 fewer patients in ICU than would have been the case had there been no prohibition on smoking. If the pandemic lasts for six months, the number doubles to 33 ICU beds that are no longer required at any point in time due to the ban on smoking.

175.5 There are approximately 3 300 ICU beds in South Africa. A freeing up of 16 ICU beds equates to 0.5% of the total ICU beds in the country.

175.6 The Minister has not put up any evidence to establish that a reduction of 16 ICU patients (or 33 ICU patients, for that matter) at any one time throughout the entire country would mean that the public health system would be able to cope in circumstances were it not otherwise have been able to cope.

[176] The upshot of these calculations is that the prohibition on smoking is likely to free up approximately 16 ICU beds at any one time across the entire country. According to the applicants, this extraordinarily small number does not begin to justify the massive harm that is caused by Regulation 45. The proper context of the harm must include the billions of rand that are lost to the fiscus by virtue of the fact that illicit cigarette sales are burgeoning. According to the applicants the loss of excise duty to the fiscus is approximately R35 million per day. In response, the Genesis Report says that the loss to the fiscus in the form of excise duties was R2.2 billion during the period from 27 March 2020 to 22 May 2020. That is a loss of almost R38 million per day according to the Minister's own expert. It cannot be disputed that the harm includes the damage caused to the various participants in the supply chain for smoking and vaping products as attested to in their affidavits. Some of them will go out of business. Those that do not go out of business will suffer losses and may have to retrench employees. In addition, the harm includes the fact that illicit cigarettes contain harmful substances not found in licit cigarettes. According to Dr Morjaria, forced cessation may have adverse impacts on smokers. Moreover, there is some evidence to show that former smokers have a worse Covid-19 experience than current smokers.

[177] As can be discerned from what is set out above, the Minister has not discharged the onus of showing that the violation of the constitutional rights of smokers is justified in terms of section 36(1) of the Constitution. On the Minister's own version, the benefit of Regulation 45 is that at any one time there may be 16 fewer patients requiring hospitalisation in ICU than would otherwise have been the case. It therefore is plain that the disadvantages of the ban far outweigh the advantages in so far as smokers are concerned.

[178] Regarding tobacco farmers and tobacconists, it will be recalled that they lamented the impact of the prohibition on the basis that it deprived them of their right to choose their trade. It must be accepted that because of the prohibition, tobacconists who sell only tobacco and vaping products were unable to trade and that many informal traders have been forced to close their shops or stalls.

[179] The Minister disputes that there is a violation of the right to choose a trade: She says that Regulation 45 is temporary and that trade may be resumed after the Covid-19 pandemic ends. We now know that this averment is true because the prohibition is no more. In her affidavit, the Minister says that Regulation 45 impacts on persons who have already chosen their trade; it does not impact on persons intending to commence that trade. This is clearly incorrect because the Constitutional Court in Diamond Producers stated the following:

"Clearly, then, a law prohibiting certain persons from entering into a specific trade, or providing that certain persons may no longer continue to practise that trade, would limit the choice element of section 22; in these cases, there is a legal barrier to choice. This would be the case where, for instance, a licence is necessary to conduct a particular trade, and that licence is withdrawn."[42]

The Constitutional Court further stated that "one may also conceive of legislative provisions that, while not explicitly ruling out a group of person from choosing a particular trade, does so in effect, by making the practice of the trade or profession so undesirable, difficult or unprofitable that the choice to enter into it is in fact limited".[43]

[180] In our judgment, on a proper conspectus of all the evidence, the limit imposed by Regulation 45 on the rights in terms of s22 of the Constitution as against the purpose for which it was created, results in more harm.

[181] Turning now to the arbitrary deprivation of property, The applicants manufacturers, distributors and other participants in the supply chain for tobacco and vaping products bemoaned the arbitrary deprivation of their property by virtue of Regulation 45. They allege that their use, enjoyment or exploitation of their property is substantially interfered with, limited or removed by the prohibition. Section 25(1) of the Constitution provides that "no Jaw may permit arbitrary deprivation of property''. Tobacco farmers also allege that they are unable to sell much of their recently-harvested crop, and they are unable to utilise their farms (in which they have invested substantial capital over the years) in a productive manner. Similarly, manufacturers are not able to use their factories and equipment (i.e. their capital assets) at full capacity for the manufacturing of tobacco products. They say that they are also unable to sell much of the product that they have produced. In similar vein, wholesalers and retailers state that they are unable to sell their stock-in-hand of tobacco and vaping products. For those wholesalers who trade exclusively in tobacco and vaping products, they, like the manufacturers, are unable to utilise their facilities in a productive manner.

[182] The long and short of it is that all of these industry participants are saying that they are unable to alienate much of their property (i.e. the tobacco or the tobacco and vaping products that they have produced, manufactured or purchased), and to realise the value in that property for commercial gain. In addition, manufacturers and wholesalers are unable to employ their capital assets to turn a profit (or even break-even). All of this is undisputed. It follows that the prohibition brought about a significant limitation on the use, enjoyment and exploitation of these persons' property.

[183] The Minister disputes these assertions. She contends that a temporary interference cannot give rise to a deprivation of property. This contention too is incorrect. In Mkontwana[44], the Constitutional Court held that section 118(1) of the Local Government: Municipal Systems Act 32 of 2000 gave rise to a deprivation of property even though it imposed a restriction in alienating immovable property that could be removed by the paying of arrear consumption charges and further that the ability to alienate one's property is an incident of ownership and that interference with the freedom to alienate constitutes a deprivation. It follows that Regulation 45 thus constitutes a deprivation of property within the meaning of section 25(1) of the Constitution. In First National Bank of SA Limited[45] The Constitutional Court held that "deprivation of property is 'arbitrary' as means by section 25 when the 'law' referred to in section 25(1) does not provide sufficient reason for the particular deprivation in question or is procedurally unfair". The Constitutional Court held that the question whether sufficient reason exists to justify a deprivation entails a multi-faceted assessment. The test requires that there must be a rational connection between the deprivation and the end sought to be achieved and, where the deprivation is severe, that it be proportionate. A proportionality analysis assesses the purpose of the law, the nature of the property involved, the extent of the deprivation and whether there are less restrictive means available to achieve the purpose in question.[46] The stronger the property interest and the more extensive the deprivation in question, the more compelling the State's purpose has to be in order to justify the deprivation.[47]

[184] In the present case damage to property owners, when balanced with the health risk already outlined above, is quite severe and it has not been adequately justified.

[185] During argument, a question was posed to the respondents whether or not the same objective of reducing the number of smokers could have been achieved without infringing on the constitutional right by simply increasing the price of cigarettes. Advocate Breitenbach conceded this point. However, he argued that in determining whether or not there is a better way of achieving the same outcome is government's business and that the court should be careful not to stray into the realm of executive policy making. We do not agree. Whether or not there is an alternative less intrusive manner of achieving the respondent's position is central in determining both the proportionality and legality of the steps taken by the respondents. It does not stray into the realm of executive policy making.

 

The administrative law challenge

[186] The Applicants contend that Regulation 45 is unlawful in terms of the principle of legality. According to this contention, no court has ever held that the making of delegated legislation does 'not constitute administrative action within the meaning of PAJA '. The Applicants relied on Minister of Health v New Clicks South Africa (PTY) Ltd where the court held that the regulations at issue in that case fell within the meaning of PAJA. Likewise, in City of Tswane Metropolitan Municipality v Cable City {PTY) Ltd 2010 (3) SA 589 SCA para 10, the Supreme Court of Appeal held that the making of regulations constitutes administrative action and is reviewable under PAJA. However, in Mostert v Registrar of Pension Funds 2018 (2) SA 53 (SCA) paras 8 to 10, the Court reconsidered the position formulated in Cable City, supra, and held that ' the final word on regulation-making and the applicability of PAJA to it may . . . not have been spoken'. Notwithstanding the Applicants persisted with the argument that Regulations amount to administrative action in terms of PAJA as they have a 'direct, external legal effect' and they 'adversely affect rights'

[187] The Minister disputes the Applicants' contention and states that her actions fall outside the definition of PAJA, because the making of the regulations falls outside of the reach of PAJA. The Applicants insist that when the Minister made the Regulations in terms of section 27, she was implementing legislation and the making of regulations in terms of an empowering provision is not excluded from the definition of administrative action.

[188] The Applicants did not fervently pursue this line of argument, prudently so, because in terms of the principle of legality, the exercise of public power must conform to the Constitution. In Affordable Medicines, Ngcobo J, explained thus:

'[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 the law." In this sense, the Constitution entrenches the principle of legality and provides for the control of public power.'

Thus, even if PAJA can be said to be inapplicable, the conduct would still be reviewable under the doctrine of legality.

 

Is Regulation 45 ultra vires?

[189] The Applicants allege that Regulation 45 is ultra vires. This challenge to the validity of Regulation 45 is based on the following grounds:

189.1 the application of the maxim inclusio unius est exclusion alterius to the interpretation of section 27 (2) (n) would result in the making of regulations that do not limit the sale of products other than alcohol;

189.2 Regulation 45 is inconsistent with the Tobacco Products Control Act;

189.3 the Minister's power to make regulations under section 27 (2) of the Act does not include the power to prohibit; and

189.4 Regulation 45 is not necessary.

[190] In determining whether Regulation 45 is ultra vires, it is well to recall that it is the principle of our law that the exercise of all public power must comply with the Constitution. The principle is succinctly expressed in Fedsure Life Limited and Others v Greater Johannesburg Transitional Metropolitan Council and Others[48]:

'It seems central to the conception of constitutional order that the Legislature and the Executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by the law. At least in this sense, then, the principle of legality is implied within the terms of the interim Constitution. Whether the principle of the rule of law has greater content than the principle of legality is not necessary for us to decide here. We need merely hold that fundamental to the interim Constitution is principle of legality.'

In similar vein, in President of the Republic of South Africa and Others v South African Rugby Football Union and Others[49], the Court held thus:

'It is clear that under our new constitutional order the exercise of all public power, including the exercise of the President 's powers under s 84 (2), is subject to the provisions of the Constitution, which is the supreme law. If this is done, the exercise of the power can be reviewed and set aside by the Court. This is what this Court held in President of the Republic of South Africa v Hugo It is clear that s 84(2) (f) of the Constitution confers the power to declare the provisions applicable to a commission of enquiry upon the President alone. The Judge was therefore, correct in law when he had held that, if the President had indeed abdicated either of these powers to another person, that abdication would have been invalid.'

[191] Against this backdrop, we turn to consider the submissions made by the parties.

 

lnclusio unius est exclusio alterius

[191] The challenge to Regulation 45 is grounded inter alia on the application of inclusio unius est exclusio alterius ('the maxim') to the provisions of the Act. In accordance with the maxim, the express inclusion of one implies the exclusion of the other. Within the context of the Act the express authorisation for the making of regulations limiting the sale of alcohol implies that no authorisation was given for the making of regulations which limit the sale of any other goods. The Applicants argue that it would have been unnecessary for Parliament to single out alcoholic beverages in section 27 (2) (i) of the Act if the Minister was authorised to limit the sale of any goods under section 27 (2) (n).

[192] The FITA judgment determined that the maxim must be applied with great caution and that a court should be weary of the rigid application thereof. Furthermore, it found that by their very nature, natural disasters often result in unforeseen consequences requiring a government to implement measure not necessarily foreseen at the time legislation was drafted to manage and contain a state of natural disaster.

[193] We are in agreement with the FITA judgment insofar that the maxim does not per se exclude the Minister's authority to make Regulation 45. After all the maxim is simply a 'principle of common sense' and not a 'rule of statutory construction’.[50]

Elevating it to a rule of statutory interpretation would yield absurd results as it would undermine the wide sweeping and general powers explicitly bestowed on the Minister by section 27 (2) (n), allowing her to take any other steps. It reads as follows:

'If a national state of disaster has been declared in terms of subsection (1), the Minister may, subject to subsection (3), and after consulting the responsible Cabinet member, make regulations or issue directions or authorize the issue of directions concerning other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster.'

[194] These wide sweeping and general powers are not without limitation. On the contrary, it is restricted in two very specific ways. Firstly, the taking of the other steps must be necessary. Secondly, these steps must be taken to achieve or further the objectives set out in section 27 (2) (n) - namely the prevention of an escalation of the disaster, or the alleviation or the containment and minimisation of the effects thereof. Regulation 45 must meet both requirements before it can be said to be authorised in terms of section 27 (2) (n) of the OMA.

 

Was regulation 45 necessary?

[195] The FITA judgment also considered whether or not Regulation 45 was necessary. In reaching its decision, that court distinguished its decision from the Constitutional Court's decision in Pheko and Others v Ekurhuleni Metropolitan Municipality[51] and found that FITA's reliance thereon for a narrow construction of the term necessary was misplaced. It did so for the following reasons:

1. The disaster addressed in the Pheko matter was a local disaster. Regulation 45 was made within the context of a national and global scale;

2. The impugned regulations in Pheko were made in terms of section 55 and not section 27 of the Act;

3. The court in Pheko was essentially concerned with the interpretation of the term 'evacuation'.

[196] Our approach differs to that adopted in the FITA judgment. It is our view that the approach adopted by the court in FITA in approaching the term necessary was substantially erroneous, as it was bound by the approach of the Constitutional Court as set out in the decision of Pheko. Furthermore, the distinction sought to be drawn between sections 27 and 55 are artificial and without any merit.

[197] The wording of section 55 is identical to that of section 27, save that section 55 addresses a local disaster and section 27 a national disaster. Below we set out the wording of the relevant portions of section 55 and section 27 of the Act and have underlined the provisions in section 27 where it differs from that of section 55.

'55 Declaration of local state of disaster

(1) In the event of a local disaster the council of a municipality having primary responsibility for the co-ordination and management of the disaster may, by notice in the Provincial Gazette, declare a local state of disaster if-

(a) existing legislation and contingency arrangements do not adequately provide for that municipality to deal effectively with the disaster; or

(b) other special circumstances warrant the declaration of a local state of disaster.

(2) If a local state of disaster has been declared in terms of subsection (1), the municipal council concerned may, subject to subsection (3), make by-laws or issue directions, or authorise the issue of directions, concerning-

(a) the release of any available resources of the municipality, including stores, equipment, vehicles and facilities;

(b) the release of personnel of the municipality for the rendering of emergency services;

(c) the implementation of all or any of the provisions of a municipal disaster management plan that are applicable in the circumstances;

(d) the evacuation to temporary shelters of all or part of the population from the disaster-stricken or threatened area if such action is necessary for the preservation of life;

(e) the regulation of traffic to, from or within the disaster-stricken or threatened area;

(f) the regulation of the movement of persons and goods to, from or within the disaster-stricken or threatened area;

(g) the control and occupancy of premises in the disaster-stricken or threatened area;

(h) the provision, control or use of temporary emergency accommodation;

(i) the suspension or limiting of the sale, dispensing or transportation of alcoholic beverages in the disaster-stricken or threatened area;

(j) the maintenance or installation of temporary lines of communication to, from or within the disaster area;

(k) the dissemination of information required for dealing with the disaster;

(I) emergency procurement procedures;

(m) the facilitation of response and post-disaster recovery and rehabilitation; or

(n) other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster.

(3) The powers referred to in subsection (2) may be exercised only to the extent that this is necessary for the purpose of-

(a) assisting and protecting the public;

(b) providing relief to the public;

(c) protecting property;

(d) preventing or combating disruption; or

(e) dealing with the destructive and other effects of the disaster.

27 Declaration of national state of disaster

(1) In the event of a national disaster, the Minister may, by notice in the Gazette, declare a national state of disaster if-

(a) existing legislation and contingency arrangements do not adequately provide for the national executive to deal effectively with the disaster; or

(b) other special circumstances warrant the declaration of a national state of disaster.

(2) If a national state of disaster has been declared in terms of subsection (1), the Minister may, subject to subsection (3), and after consulting the responsible Cabinet member, make regulations or issue directions or authorise the issue of directions concerning-

(a) the release of any available resources of the national government, including stores, equipment, vehicles and facilities;

(b) the release of personnel of a national organ of state for the rendering of emergency services;

(c) the implementation of all or any of the provisions of a national disaster management plan that are applicable in the circumstances;

(d) the evacuation to temporary shelters of all or part of the population from the disaster-stricken or threatened area if such action is necessary for the preservation of life;

(e) the regulation of traffic to, from or within the disaster-stricken or threatened area;

(f) the regulation of the movement of persons and goods to, from or within the disaster-stricken or threatened area;

(g) the control and occupancy of premises in the disaster-stricken or threatened area;

(h) the provision, control or use of temporary emergency accommodation;

(i) the suspension or limiting of the sale, dispensing or transportation of alcoholic beverages in the disaster-stricken or threatened area;

(j) the maintenance or installation of temporary lines of communication to, from or within the disaster area;

(k) the dissemination of information required for dealing with the disaster;

(l) emergency procurement procedures;

(m) the facilitation of response and post-disaster recovery and rehabilitation;

(n) other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster; or

(o) steps to facilitate international assistance.

(3) The powers referred to in subsection (2) may be exercised only to the extent that this is necessary for the purpose of

(a) assisting and protecting the public;

(b) providing relief to the public;

(c) protecting property;

(d) preventing or combating disruption; or

(e) dealing with the destructive and other effects of the disaster.'

[198] In the Pheko judgment the Constitutional Court found that the term 'necessary' must be interpreted narrowly, as a wide construction thereof may adversely affect the rights set out in section 26 of the Constitution. That Court went on to state that:

'The language used in section 55(2)(d) is critical. The text must be interpreted in the context of the OMA as a whole, taking into consideration whether its preamble and other relevant provisions support the envisaged construction.”[52]

[199] Giving a narrow construction to provisions which could adversely affect constitutional rights could be seen as a corollary to the principle that courts should give a broad construction to those rights.[53] As in the Pheko case, a wide construction of the term 'necessary' as set out in section 27 of the Act could adversely affect constitutional rights and therefore a narrow construction is to be favoured. Furthermore, a narrow construction of the term 'necessary' is also consistent with section 39 (2) of the Constitution. Therefore, the term 'necessary' as used in section 27 of the Act must be given a narrow construction. Whether or not the making of Regulation 45 constituted the taking of a step deemed necessary is a jurisdictional fact which is to be ascertained objectively.[54]

[200] The Respondents' justification for Regulation 45 is that it will reduce the number of smokers. This is necessary because the preponderance of evidence is that the use of tobacco products increases the risk of developing a more severe form of the disease. This then increases the strain on the health system as smokers have higher intensive care unit admission rates, a higher need for ventilators and a higher mortality rate than non-smokers. As such smoking increases the strain on health care resources, including the health workers.

[201] The Respondents argue that the burden on the healthcare system could be alleviated by a reasonable reduction in the number of smokers. In this regard, a survey conducted by M4Jam found 51% of participants reported that they no longer smoked cigarettes during the lockdown.

[202] However, M4Jam is a crowd sourcing platform which conducted the survey to obtain the independent views of smokers and for internal purposes only. No scientific methodology was employed in gathering or in analyzing the data. Consequently, the following comments by participants who reported that they stopped smoking cigarettes during the lockdown highlights the difficulty with relying upon the finding that 51% of the survey's participants stopped smoking during the lockdown:

'do not smoke as much but still do

I have run out of cigarettes and now use my vape on a permanent basis

I smoke boxer tobacco also known as pipe tobacco now

I vape now

still smoking'[55]

[203] In the circumstances no value is attached to the finding by M4Jam that 51% of smokers quit during the lockdown.

[193] Dr. Hanna Ross (who deposed to affidavits in support of the respondents) found that, based on an estimated 90% increase in cigarette prices during the tobacco ban, between 10% and 15% of smokers quit.[56] The 10% to 15% of smokers who quit smoking did so because of the price of illegal cigarettes. During the hearing of the matter, counsel for the Respondents conceded that this effect (10-15% of smokers quitting) could have been achieved by the Respondents materially raising the price of cigarettes instead of implementing the ban on cigarettes and tobacco products brought about by Regulation 45. It was submitted that it was not for the court to question whether there was a better way of achieving the same outcome, as such an enquiry would result in the court straying into the realm of executive policy making.

[203] This argument fails to recognise that the court has to determine whether or not the making of Regulation 45 was strictly necessary to achieve and/or further the objectives set out in section 27 (2) (n). This is not straying into the realm of executive policy making, but ascertaining whether or not the jurisdictional requirement for section 27 (2) (n) has been fulfilled.

[204] Before it can be said that Regulation 45 was authorised by section 27 (2) (n), it must be shown that it served to reduce the strain on the health care system. In determining this aspect regard cannot only be had to the number of persons who quit smoking, but must include an inquiry into the impact thereof on reducing the strain on the healthcare system. Although Regulation 45 could result in more intensive care unit ('ICU') beds becoming available, no evidence has been put up to show the capacity and/or strain on the healthcare system and how, if at all, the freeing up of ICU beds would reduce the strain thereon. Put plainly, no evidence has been presented to show that the healthcare system was operating at 100% or at 50% capacity. If the health care system was operating at 100% capacity, then the freeing of additional ICU beds would be crucial to achieving the objectives set out in section 27 (2) (n). But if the health care system was operating at 50%, then the freeing up of additional ICU beds may not have any impact on the objectives set out in section 27 (2) (n).

[205] The scientific evidence relied upon by the Respondents is also far from conclusive. The WHO scientific brief on Smoking and COVI0 -19 dated 30 June 2020 reports that there are no peer­ reviewed studies that directly estimate the risk of hospitalisation with COVID-19 among smokers. It also states that there are no peer­ reviewed studies that have evaluated the risk of SARS-CoV-2 infection among smokers. Furthermore, the scientific evidence addressing the impact of the cessation of smoking on severe COVID-19 is more tenuous. The scientific evidence stated that as a result of the newness of COVID-19, there is not yet enough data to assess whether and/or to what extent the chance of infection or disease progression decreases when a person quits smoking.[57] There is also substantial literature that confirms that smoking risk for severe COVID-19 exists among both current and former smokers.[58]

[206] In the circumstances, the Respondents have not shown that Regulation 45 reduced or acted to reduce the strain on the health care system. Therefore, the Respondents have not shown that Regulation 45 was necessary or that it fulfilled and/or furthered the objectives set out in section 27 (2) (n). Therefore, the jurisdictional facts required for the authorisation of Regulation 45 in terms of section 27 (2) (n) are absent and consequently it follows that regulation is ultra vires.

 

Regulation 45 and the Tobacco Products Control Act

[207] The Applicants challenge the validity of Regulation 45 on the basis that it is inconsistent with the Tobacco Products Control Act 83 of 1993 ('TPCA') in that it prohibits the sale of tobacco products in all circumstances whereas the TPCA lists specified circumstances under which tobacco products may not be sold. This challenge has two legs. Firstly, section 27 (2) could not have conferred on the Minister the power to make regulations that are inconsistent with legislation and secondly, the power to make regulations does not include the power to prohibit.

[208] The Applicants rely on the decision of Western Cape Legislature v President of the Republic of South Africa[59] wherein it was held that the delegation of a power to amend an Act of Parliament is subversive and is not generally permissible. This position, the Applicants argue, is bolstered by section 26 (2) (b) of the Act which allows for regulations to add to existing legislation and not to detract therefrom.

[209] The Respondents argued that the adoption of an interpretation of section 27 (2) and (3) of the Act proposed by the Applicants would result in an unduly strained interpretation.[60]

[210] In Esau v Minister of Cooperative Governance and Traditional Affairs[61] the court analysed section 26 (2) (b) and held that it merely states that the national executive must deal with a national disaster in terms of existing legislation and contingency arrangements as augmented by regulations or directions made or issued in terms of section 27 (2). This did not mean that the Minister may only make regulations that augment existing legislation. Rather, within the context of existing legislation to augment meant to provide more emphasis and support to the provisions and objects of existing legislation.

[211] We are in agreement with this finding by the court in Esau. Furthermore, in evaluating this challenge to the validity of Regulation 45, we are cognizant of the fact that although the Constitutional Court found that the delegation of a power to amend an Act of Parliament was subversive and not generally permissible, it also found that:

'There may be exceptional circumstances such as war and emergencies in which there will be a necessary implication that laws can be made without following the forms and procedures prescribed Section 34 of the Constitution makes provision for the declaration of states of emergency in which provisions of the Constitution can be suspended. l! is possible that circumstances short of war or states of emergency will exist from which a necessary implication can arise that Parliament may authorise urgent action to be taken out of necessity. A national disaster as a result of floods or other forces of nature may call for urgent action to be taken inconsistent with existing laws such as environmental laws. And there may well be other situations of urgency in which this type of action will be necessary._ But , even if this is so (and there is no need to decide this issue in the present case), the conditions in which s 16A was enacted fall short of such·an emergency. There was, of course, urgency associated with the implementation of the Transition Act, but the Minister has regulatory powers under the Act, and legislation could have been passed to authorise the President to issue proclamations not inconsistent with the Act. Whether this could have included a power to amend other Acts of Parliament need not now be decided.’[62] (Own emphasis added.)

[212] Therefore, the Constitutional Court recognised that there may be circumstances which require regulations to be made that are inconsistent with existing laws. It can hardly be contested that the COVID-19 global pandemic resulted in a national disaster that gave rise to the need to take urgent action. This urgent action must be contextualised against the constitutional obligation to secure the well-being of the people of South Africa and to ensure the realisation of the right to access health care services as set out in sections 41 (1) (b) and 27 of the Constitution. It resulted in the making of regulations which are inconsistent with existing laws.

[213] After considering the constitutional obligations of the Respondents, together with the wide definition of a 'disaster' and 'disaster management' set out in the Act, as well as the wide sweeping and general powers bestowed in terms of section 27 (2) (n), we are of the view it was not ultra vires for the Minister to pass regulations inconsistent with existing acts, insofar as the inconsistency did not amount to a prohibition.

[214] The second leg of this challenge is underpinned by the legal principle that where a power to regulate is given, it may not be used to prohibit, either in whole or in substantial measure the activity in question.[63]

[215] Although the prohibition brought about by Regulation 45 was temporary, the Respondents could not and/or would not indicate how long the prohibition would last. Therefore, the effect brought about by Regulation 45 amounted to the prohibition of, if not the whole, at the very least the substantial prohibition of the sale of tobacco and tobacco products.

[216] We have not been referred to any legal authority which differs from or challenges the position set out in R v Williams ('Williams') and Telkom SA SOC Ltd v City of Cape Town ('Telkom'). Therefore, we would ordinarily be bound by these decisions in accordance with the stare decisis principle. However, any challenge to Regulation 45 must be evaluated within the context of the Act and the jurisdictional requirements set out therein. Therefore, if Regulation 45 resulted in a prohibition, it may still be valid if it could be shown to be necessary to achieve the specified objectives set out in as section 27 (2) (n) and 27 (3) of the Act. In this case, the Respondents have failed to show both that Regulation 45 was necessary and that it would further the objectives set out in section 27 (2) (n) of the Act.

[217] Consequently, as Regulation 45 is neither necessary nor furthers the objectives set out in section 27 (2) (n), it falls foul of the legal principle enunciated in Williams and Telkom and is therefore invalid and ultra vires.

 

Consultation with cabinet members

[218] In their heads of argument, the Applicants challenge the validity of Regulation 45 on the basis that the Minister has not put up any evidence that she consulted with the relevant cabinet member before enacting Regulation 45. Consequently, the Minister failed to establish a jurisdictional requirement of section 27 (2) that she was to consult the responsible Cabinet Member before making any regulations. Therefore, so argue the Applicants, Regulation 45 should be set aside.

[219]  This is denied by the Minister. She states that the decision to make Regulation 45 was a collective decision and was discussed with the NCCC and Cabinet.[64] Initially the NCCC was to comprise of 19 Cabinet members and to be chaired by the President. After it became apparent that the COVID-19 pandemic would be worse than anticipated and its impact far more wide-ranging, all Cabinet members were requested to take part in the NCCC. This occurred on 22 March 2020.[65] The NCCC enables the Minister, as the designated Minister under the Act, to consult relevant Ministers, both for the purpose of exercising her powers under section 27 (2) and more generally. The NCCC has been and remains an essential tool for coordinating, facilitating and implementing government's response to COVID-19. The Minister states further that she took the relevant decision in respect of regulation 45.[66]

[220]  The Applicants have not established any grounds or a basis for rejecting the Minister's response that she consulted with the NCCC and Cabinet before making the decision pertaining to Regulation 45 and it is accepted that the Minister consulted with the responsible Cabinet member via the NCCC. Consequently, there is no merit to this challenge to the validity of Regulation 45.

 

CONCLUSION

[221]  We have in this judgment held that Regulation 45 cannot and does not withstand constitutional scrutiny. Likewise, we have found Regulation 45 to be neither necessary nor can it be said that it furthers the objectives set out in section 27 (2) (n) of the Act. It follows that the Applicants are entitled to the relief sought in the notice of motion.

 

COSTS

[222]  In the light of the fact that the prohibition was removed, it seems prudent that there should be no order as to costs.

[223]  As stated at the outset, the respondents were faced with a novel COVID-19 pandemic which necessitated the urgent implementation of measures to curb or control the spread thereof in order to not only minimise the impact on the lives of citizens but also to save the lives of citizens. The respondents were under both a constitutional and moral obligation to act swiftly at a time when very little was known about the COVID-19 pandemic and the scientific knowledge thereof was scan and constantly developing. To mulct them with costs would, in the circumstances be unjustified.

 

ORDER

[224] We accordingly make the following order:

224.1 Regulation 45 promulgated in terms of section 27 (2) of the Disaster Management Act 57 of 2002 is declared to be inconsistent with the Constitution of the Republic of South Africa, 1996 and invalid.

224.2 Each party will pay its own costs.

 

 

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NDITA; J

 

 

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STEYN;J

 

 

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SLINGERS; J

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