Tobacco sale ban during Covid

In Minister of Co-operative Governance and Traditional Affairs and Another v British American Tobacco South Africa (Pty) Ltd and Others [2022] 3 All SA 332 (SCA), prohibition on the sale of tobacco products, e-cigarettes, and related products an unjustifiable limitation of the rights to dignity, and bodily and psychological integrity.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Constitutional law - Limitation on constitutional rights by ban on sale of tobacco during the National State of Disaster: Part of the government’s response to the COVID-19 pandemic was a series of regulations made by the Minister of Co-operative Governance and Traditional Affairs under s 27(2) of the Disaster Management Act 57 of 2002 (the Act) – including a prohibition on the sale of tobacco products, e-cigarettes, and related products.

The respondents were farmers, processors, manufacturers, retailers, and consumers, situated at every level of the supply chain for tobacco and related products. In June 2020, they launched an urgent application in the High Court for an order declaring that reg 45 published in GN608 GG43364/28-5-2020, which prohibited the sale of tobacco and related products, except for export, unconstitutional and invalid. The prohibition applied during Alert Level 3 of the National State of Disaster. According to the respondents, reg 45 limited the constitutional rights to dignity, privacy, freedom and security of the person, choice and practice of a trade or occupation freely, and protection against deprivation of property.

The respondents’ challenge to the regulation was upheld in the High Court, which found that reg 45 did not reduce the strain on the health system, and was, therefore, not shown to further the objectives in s 27(2)(n) of the Act.

That led to an appeal in Minister of Co-operative Governance and Traditional Affairs and Another v British American Tobacco South Africa (Pty) Ltd and Others [2022] 3 All SA 332 (SCA).

As it was clear that the rights implicated were limited, the appellants argued that reg 45 was reasonable and justifiable under s 36 of the Constitution. The determination of the constitutionality of reg 45 involved a two-stage analysis. The respondents were required to establish that the regulation limited one or more fundamental rights and if they did so, the burden shifted to the appellants to justify the limitation in terms of s 36(1) of the Constitution. The s 36 limitation inquiry requires a balancing of two sets of interests. On the one hand, there is the right that is limited. To be considered are its nature; its importance in an open and democratic society based on human dignity, equality, and freedom; and the nature and extent of the limitation. On the other hand, there is the importance of the purpose of the limitation. What must be assessed overall, is whether the limitation is proportional and whether it is reasonable having regard to its purpose and effect.

The court considered the concerns raised by the appellants in justification of the tobacco ban and found that the ban was not shown to effectively address those concerns. There was no scientific justification for the continued ban on the sale of tobacco products. Furthermore, the purpose behind reg 45 was found not to outweigh the limitation of the rights. Instead, reg 45 was an unjustifiable limitation of the rights to dignity, and bodily and psychological integrity. The extent to which reg 45 limited the rights in issue, particularly given the lack of factual and scientific evidence to support its promulgation, was disproportionate to the nature and importance of the rights infringed. The appeal was accordingly dismissed.

Merilyn Rowena Kader
Legal Editor at LexisNexis