The tobacco firm, which produces Dunhill and Lucky Strike, is one of 10 applicants set to jointly challenge the ban in court this Wednesday.

Tobacco farmers, manufacturers, and retailers are among other members of the industry joining the court bid.

The government defeated an earlier court challenge to unban cigarettes from the Fair Trade Independent Tobacco Association (Fita) in June.

RELATED: High Court dismisses Fita's legal bid to have cigarette ban overturned

Mike Evans, the lawyer representing BAT SA and others, says this legal application is not the same as Fita's failed bid.

Evans explains the crux of the legal arguments to CapeTalk host Sara-Jayne King.


The applicants will argue that the tobacco ban infringes on various Constitutional rights, including the right to trade and the individual right to bodily integrity.

Evans says it's irrational that smokers are effectively prohibited from smoking cigarettes, but "they're allowed to smoke cannabis at home."

RELATED: Black tobacco farmers: We pay tax and create jobs, but SA govt is suppressing us

"We've raised a series of Constitutional challenges saying that this ban infringes on a whole number of Constitutional rights."

Michael  Evans, Public Law Partner - Webber Wentzel

"It infringes the right to trade, which relates to the manufacturers. It relates to the right to property and the rights to individual consumers. They have the right to privacy, dignity, and bodily and psychological integrity as well."

Michael  Evans, Public Law Partner - Webber Wentzel

"They're allowed to smoke cannabis at home, but effectively they're not allowed to smoke cigarettes because they can't purchase them. We're saying that those rights have been infringed by this ban."

Michael  Evans, Public Law Partner - Webber Wentzel

Cost vs Benefit

In addition, the applicants will debate whether the supposed health benefits of the ban have outweighed the harm caused by the prohibition.

Evans says the economic damage of the tobacco ban far outweighs the desired goal of reducing severe Covid-19 infections.

He says there has been "minimal gain" for the public health system.

Therefore, the applicants will argue that the government's ban does not meet the requirements of reasonableness and proportionality.

RELATED: More smokers sharing 'skyfs' and cigarette prices up by nearly 250%, study finds

"The issue is whether if you stop smoking, you lessen the impact on the public health system."

Michael  Evans, Public Law Partner - Webber Wentzel

"Based on the minister's own figures, we've said that 16 beds would be saved. In other words, by stopping smoking, the [Cogta] minister will free up 16 ICU beds in South Africa at any one point in time out of about 3,500 to 4,000 beds in SA."

Michael  Evans, Public Law Partner - Webber Wentzel

"We've said that that is absolutely a minimal gain for this ban on smoking. Because against that, what you have is a massive impact on society. The entire tobacco industry has been affected, not just big manufacturers like BAT SA."

Michael  Evans, Public Law Partner - Webber Wentzel

"There's no evidence that stopping smoking has had a massive impact in terms of the saving of beds."

Michael  Evans, Public Law Partner - Webber Wentzel

Evans says it may take several weeks before a court judgment is made in the matter.

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