Hello Smokers & Smoker friends
Good news!!! FITA is appealing the case !!
I am attatching the court papers for you all to see :) but will also share the link so you can see the PDF version
Stay strong, keep fighting the good fight & #Letourvoicesbeheardsa
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Bev Maclean
FITA
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case: 21688/2020
In the matter between:
FAIR-TRADE INDEPNDENT TOBACCO
ASSOCIATION Applicant
and
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent
MINISTER OF COOPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS Second Respondent
__________________________________________________________
APPLICANT’S APPLICATION FOR LEAVE TO APPEAL
_________________________________________________________
BE PLEASED TO TAKE NOTICE THAT the abovementioned Applicant intends to make an application as matter of urgency for leave to appeal, to the Supreme Court of Appeal, against the whole of the judgment and order (including the order for costs) delivered by the Full Court of this Division on 26 June 2020, on the grounds set out below.
GROUNDS ON WHICH LEAVE TO APPEAL IS SOUGHT
1. COSTS
1.1 The Court erred in ordering that the Applicant pay the costs, including costs of three counsel when the Respondents` counsel specifically stated in argument that costs were not sought against FITA;
1.2 The court erred in failing to have regard to the fact that the Respondents withdrew their request for costs in light of the considerations in Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC), on the basis that the matter is one of public interest.
2. REGULATIONS 27 AND 45 ARE ULTRA VIRES SECTION 27 OF THE ACT
2.1 The Court erred in its formulation and definition of the meaning and threshold for “necessary” within the meaning of section 27 of the Disaster Management Act 57 of 2002 (“the Act”);
2.2 The Court erred in its approach to testing whether the executive action in question was rational or rationally connected with the purpose for which the regulations may be promulgated under section 27 of the Act;
2.3 The Court erred in holding that:
“All that we have to determine as a Court is whether a rational connection between a legitimate governmental purpose (i.e. containing the spread of the virus and saving lives) and the means chosen (i.e. banning the sale of all tobacco products) exists.”1
and further in finding that:
“it is against this backdrop that the rationality of the Minister’s decision to ban the sale of tobacco products has to be determined. If the end sought to be achieved by imposing a ban on the sale of all tobacco products is to “save lives and health and to reduce the potential strain on the health care system”, does the ban, as the means adopted by the Minister, assist in achieving the stated objective?”
2.4 The Court erred in not approaching the enquiry by answering the following:
“...is the ban, as the means adopted by the Minister, objectively rationally justifiable and necessary in achieving the stated objective?”
2.5 The Court erred in finding that:
“Put differently, the question before the Court is rather, having regard to the evidence considered and relied on by the Minister, could it be said that there is
1 Para 28.
enough to conclude that the prohibition placed on the sale of tobacco products is justified? In our view the answer is clearly in the affirmative.”2
2.6 The Court erred in not finding that the regulations under consideration were not rational or necessary within the meaning of section 27 of the Act.
2.7 The Court erred in not finding that the medical literature and research relied on by the Second Respondent was not supportive of the ban on the sale of cigarettes and related tobacco products imposed by the regulations and that in the absence of sufficient or credible evidence of a link between the sale of cigarettes and related tobacco products and a cessation of smoking (for which there is no satisfactory evidence) and a further link between the sale of cigarettes and related tobacco products and an increased strain on the country’s health care facilities (for which there is no satisfactory evidence) there can be no valid or rational basis for the regulations imposing the ban.
2.8 The Court erred in not finding that the ban in the regulations is based on the fundamental false premise that if a certain number of people are prevented from gaining access to cigarettes and tobacco products for a limited period of time they will cease to be “smokers”;
2 Para 45.
2.9 The Court erred in not finding that on the evidence, any meaningful damage to a smoker’s health cannot realistically occur during the period of the temporary ban on sales, and any damage to a smoker’s health will, in any event, already have been caused prior to the ban;
2.10 The Court erred in considering whether smoking is hazardous to health or whether smokers are more likely to contract COVID-19 or more likely to require intensive medical treatment (for which there is no evidence), when the true enquiry concerns whether there is evidence that stopping the sale of cigarettes or tobacco products for a limited period of time will have any impact on the fight against the spread or the containment of the virus;
2.11 In disregarding, alternatively not having sufficient regard for, the “necessity” requirement, the Court incorrectly held that the test to be applied was as follows:
“Put differently, is there a rational connection between a legitimate governmental purpose (i.e. saving lives and health and preventing the overwhelming of the country’s health care facilities) and the means chosen (banning the sale of all tobacco products)? A related question is whether the evidence relied on by the Minister sufficiently justifies her decision to ban the sale of tobacco products and cigarettes.”;
2.12 The Court erred in finding that the Applicant had failed to provide a
sufficient factual basis in its founding papers for the legal conclusion that
regulations 27 and 45 are ultra vires the empowering provisions
contained in section 27 (2) and section 27 (3) of the Disaster
Management Act.3 ;
2.13 The Court failed to have regard to the legal submission in the Applicant`s
founding affidavit that regulations 27 is ultra vires and went so far as to
quote Section 27(2) of the Act in full;
2.14 The Court erred in finding that the interpretation of “necessary” in terms of section 27(2) and section 27(3) of the Act does not entail the highest threshold and accordingly failed to find that it means ‘absolutely/strictly necessary’ not ‘reasonably necessary’;
2.15 The Court erred in finding that it would be illogical to require the Second Respondent to meet a higher threshold in exercising the wide powers under section 27(2);
2.16 The Court erred in finding that reliance on the decision in Pheko and Others v Ekurhuleni Metropolitan Municipality (“Pheko”) by FITA for the interpretation of “necessary” as found in section 27(3) is misplaced, in circumstances in which “necessary” was interpreted by the Constitutional Court within the context of the Act;
3 Para 74
2.17 The Court erred in finding that the interpretation of “necessary” in Pheko can be distinguished on the basis that in Pheko, the disaster was “local” and, in this application, the disaster is national.4
2.18 The Court erred in not attributing sufficient weight to paragraph 24 of the Pheko judgment:
“The key issue concerns whether the removal that occurred in this case was an evacuation under s 55 of the DMA as contended for by the Municipality. Related to this are questions of the proper interpretation of the DMA and appropriate relief.”
(emphasis added)
2.19 In Pheko, the Constitutional Court held that ‘necessary’ must be interpreted narrowly within the context of the Act as a whole,5 and accordingly, the Court erred in not applying a narrow interpretation of what is meant by “necessary”.
4 Para 86.
5 Pheko at para 37.
3. THE RATIONALITY TEST
3.1 The Court erred in not finding that a rational connection has not been shown to exist between the ban on sales, and the saving of lives through curbing infections and preventing a strain on the country’s healthcare facilities;
4. CRIMINALISING CONDUCT
4.1 The Court erred in finding that a “new case” (rather than a legal argument) was made out in the Applicant’s heads of argument regarding the criminalising of otherwise lawful conduct, and in not having sufficient regard for the draconian and far-reaching effects of criminalising otherwise legal conduct and the disproportionality of the ban;
5. EX POST FACTO JUSTIFICATION
5.1 The Court erred in finding that the high-water mark of the Applicant’s case on this point is that evidence was included in the Second Respondent’s answering affidavit in support of the prohibition, notwithstanding that this had been gathered after regulation 27 had already been promulgated;
5.2 The Court failed to have regard to the fact that much of the material sought to be relied upon in justifying regulation 27 was obtained ex post facto the promulgation of regulation 27;
5.3 The Court erred in finding that the Applicant had elected to review regulation 45 without affording the Respondents an opportunity to file a record or reasons, in that the Respondents dealt fully with the reasons for the ban in both regulations and regulation 45 was simply a continuation of the prohibition already imposed;
5.4 The Court erred in not having sufficient regard for or attaching the requisite weight to the many counterfactuals, including a number of complex serious adverse physical, psychological, economic, medical and social considerations as well the particularly harmful effects and high risks attached to the sale of uncontrolled and non-regulated products;
6. ILLICIT TRADE OF TOBACCO PRODUCTS
6.1 The Court correctly found that the reality is the existence of the illicit trade of tobacco products, however erred by failing to have sufficient regard to the following incontestable facts:
6.1.1 that this reality is destructive of the rationality of the ban in circumstances in which smokers are still able to secure the ongoing supply of cigarettes and tobacco products;
6.1.2 the fact that a far more serious risk is posed by illicit products being sold and used - products which are not regulated and controlled as
they should be and which most likely contain most dangerous substances and additives; and
6.1.3 that use of illicit products will no doubt also contribute in no small measure to health impairment.
6.2 In the premises, the Court failed to:
6.2.1 properly interrogate the “necessity” requirement in light of the reality; and
6.2.2 properly apply the principles6 set out in Albutt v Centre for the Study of Violence and Reconciliation and others which states where the decision is challenged on the grounds of rationality, Courts are obliged to examine the means selected to determine whether they are rationally related to the objective sought to be achieved;
6.3 The Court erred in finding that the reality of the illicit trade of tobacco products is not fatal to the rationality of the ban, given that the Second Respondent only needs to show that the means chosen to achieve the intended objectives were reasonably capable of achieving it.
6 Para 18.
7. AUDI ALTERAM PARTEM
7.1 The Court erred in finding that the Applicant did not lay a basis for challenging the Second Respondent’s (“the Minister”) contention that the First Respondent’s (“the President”) statement was nothing more than a proposal and that the issue was subject to further consultation and discussion.
7.2 The Court erred in accepting that the decision to impose the ban on the sale of all tobacco products came after careful consideration of not only the public comments and submissions received but relevant medical literature7 and in failing to take into account that:
7.2.1 no adverse or credible medical literature was contained in the record of decision in promulgating regulations 27; and
7.2.2 no adverse submissions were contained in the Minister`s summary of submissions contained in the record.
7.3 The Court failed to have due regard to the fact that submissions submitted to and allegedly taken into account by the Second Respondent where made in circumstances where the public were under the misapprehension that the ban would be lifted in the level 4 regulations and in which event the
7 Para 31.
overwhelming likelihood is that a great number of submissions supporting the lifting of the ban would not have been submitted.
8. OTHER CONSIDERATIONS
8.1 The Court erred in accepting that the Minister had properly considered economic considerations, particularly having regard to the absence of any credible analysis and in circumstances in which such were not contained in the record of decision in promulgating regulation 27;
8.2 The Court erred in finding that the Applicant did not dispute that the suggested available medical facilities to assist smokers in dealing with effects of abrupt cessation are not adequate, and in disregarding the expert evidence of Dr West convincingly detailing why the options put up by the Minister do not work and will cause more harm.8
8.3 The Court further erred by concluding that it is of no consequence that other countries, with higher infections, some with similar statistics and socio-economics with South Africa chose not to adopt similar measures9 and in failing to have sufficient regard to the relevance of the fact to both the necessity and the rationality of the impugned regulations.
8 Annexure R3, p 010-79, para MW-15 to MW-18.
9 Para 64.
9. TOBACCO PRODUCTS AS ESSENTIAL GOODS
The Court erred in finding that tobacco products are not necessary for basic functionality on the basis that because a good is addictive it does not necessarily mean it is required for basic human functionality10 and, further, by failing to engage with the expert report of Dr West relied upon by the Applicant:11
10. RATIONALE FOR THE DECISION
10.1 The Court failed to have due regard for the fact that the available medical evidence (as encapsulated by the WHO report dated 26 May 2020) is inconclusive and accordingly cannot satisfy the minimum requirement of necessity, as set out in Section 27 of the Act;
10.2 The Court erred in finding that the Applicant did not engage with or provide factual foundations to characterize the assertions relied upon from the Human Sciences Research Council (“HSRC”) report as unproven,12 in circumstances in which the Applicant:
10 Para 96.
11 Annexure R3, p 010-86.
12 Para 39.
10.2.1 delivered a notice in terms of uniform Rule 35(12) wherein FITA requested information regarding the HSRC report including the surveys referenced in the report, which the Respondents were unable to provide;
10.2.2 relied on the UCT report; 13
10.2.3 placed reliance on the report of Dr Scott, which provided a detailed analysis of the shortcomings of the HSRC report which should have satisfied the Court.14
10.2.4 placed reliance on the report of Dr Scott which brought to the fore the fact that none of the surveys took into account relapse rates and, therefore, conclusions on “quit rates” could not be drawn from the surveys.15
10.3 The Court failed by have any regard to Dr Scott`s expert logical statements regarding the obvious shortcomings in the HSRC report especially insofar as the timing of the surveys and how those surveys differed significantly from the UCT report is concerned inter alia:
10.3.1 the HSRC survey was conducted between 14 and 21 days after lockdown was instituted;
13 SFA 3; p007-107.
14 R2, p010-65.
15 Footnote 14 supra
10.3.2 the UCT survey commenced on the second-last day of the level 5 lockdown and continued eleven days into level 4 lockdown period. This is the stage where most smokers would have depleted their stocks; and
10.3.3 the UCT study results indicate that 90% of smokers had stocked up on cigarettes before the start of lockdown. Most smokers had sufficient stock to last them throughout the period when the HSRC survey was conducted.16
10.4 The Court erred in:
10.4.1 failing to have any or any proper regard to the fact that the HSRC report was released after the date of the promulgation of regulation 27;
10.4.2 failing to accord proper weight to the expert report of Dr West which criticized material aspects of the HSRC report17 and accordingly erred by finding that:
10.4.2.1 the Minister also refers to the findings by the Human Sciences Research Council (“the HSRC”), in terms of which it is stated
16 Annexure R2, p o10-66
17 R3, para 010-79
that, assuming that 1% of South Africa’s estimated 8 million smokers were infected by the COVID-19 virus and 5% of these required ICU or high care facilities, the healthcare system would not be able to cope; and
10.4.2.2 the Applicant did not engage with this assertion, preferring to characterize it as unproven and fanciful but proffering no factual foundation for this assertion.18
10.5 The Court erred in finding that FITA would have this Court undertake an exercise that entails evaluating each side’s material and then expressing an opinion as to which material is more cogent and persuasive than the other, especially relating to the question whether there is a conclusive link between smoking and COVID-19 progression in circumstances in which:
10.5.1 FITA presented contrary medical literature to demonstrate that an entire body of relevant medical literature had been disregarded by the Minister;
10.5.2 the Court failed to have any regard to the fact that none of the additional relevant medical literature was included in the record of decision in promulgating Regulation 27; and
18 Para 39.
10.5.3 the Court failed to have regard to the fact that the WHO report dated 26 May 2020, relied upon by the Respondents concluded that the available medical evidence is inconclusive.
10.6 The Court erred in finding that the medical material and other reports, (inclusive of that from the WHO), considered by the Minister, (though still developing and not conclusive regarding a higher COVID-19 virus progression amongst smokers compared to non- smokers), provided the Minister with a firm rational basis to promulgate regulations 27 and 45 in circumstances in which:
10.6.1 regulation 27 was in fact promulgated prior to the reports relied upon by the WHO; and
10.6.2 properly considered, the WHO reports themselves conclude that the evidence is inconclusive and that population-based studies are required.
10.7 The appeal is of public importance, has reasonable prospects of
success and, accordingly, leave to appeal to the Supreme Court of
Appeal should be granted.
DATED AT JOHANNESBURG THIS 3rd DAY OF JULY 2020
____________________________
MORGAN LAW INCORPORATED
Applicant’s Attorneys
Ground Floor
The Chambers
Cnr Kirkby and Oxford Road
Bedfordview
Tel: 010 020 6838
Ref: R MERRIFIELD/OPM025
E-mail: ryan@morganlaw.co.za
TO:
THE REGISTRAR OF THE
ABOVE HONOURABLE COURT
PRETORIA
AND TO:
THE OFFICE OF THE STATE ATTORNEY
First and Second Respondents’ Attorney
Salu Building
Ground Floor
316 Thabo Sehume and Francois Baard Street
Pretoria
Tel: 012 309 1507
Email: AWasserman@justice.gov.za; and aristabester@gmail.com Service by
email as
agreed