Short-haul taxis are now allowed to be filled to 100% capacity, but Minister of Co-Operative Governance and Traditional Affairs Nkosazana Dlamini-Zuma seems to have no problem in terms of the possible impact on the number of ICU beds required during the coronavirus pandemic due to people spending, for example, two hours a day in a taxi.

Yet, she is concerned and does not want those people, when they get home from that taxi ride, to smoke a cigarette.

These were submissions made by advocate Alfred Cockrell in his closing remarks on behalf of British American Tobacco, which is challenging the ban on the sale of tobacco products in the Western Cape High Court.

BATSA is South Africa’s largest cigarette manufacturer, whose brands include Dunhill, Peter Stuyvesant and Lucky Strike.

The minister has indicated that the aim of the ban is to stop people smoking so that they do not get Covid-19 in a more severe form, leading to more ICU beds being needed and potentially over-burdening the health system during the pandemic.

‘Just take her word for it’

Cockrell argued that the overwhelming majority of smokers will continue to smoke, despite the ban on the sale of tobacco products. Furthermore, in his view, the minister gives no evidence to show that the ban actually means ICU beds will never be swamped.

“She just says to take her word for it and that is not a justified and adequate answer,” he said.

Furthermore, even before the arrival of the Covid-19 pandemic, the World Health Organisation (WHO) has been recommending to smokers to stop smoking.

Therefore, a brief by the WHO on which the minister relies to substantiate her decision to ban the sale of tobacco products during the national lockdown, is no surprise, Cockrell pointed out. So, if the WHO already recommended that people stop smoking in the past, why has the South African government then not prevented smokers from smoking in the past?

The ‘old world’

“In the ‘old world’ you were entitled as a consumer to buy cigarettes and retailers could sell it. Government did not prohibit the sale of cigarettes then, even if the WHO recommended smokers stop smoking,” argued Cockrell.

“So, the real question for the minister is why did government not prohibit in the ‘old world’ the sale of cigarettes and why does it do so now? Nowhere does the WHO say it recommends that governments prohibit the sale of cigarettes.”

Cockrell further argued that an expert – who is not a medical doctor – on whose evidence the minister’s case relies, merely states that stopping smoking will “give your lungs a fighting chance” in relation to Covid-19.

“The argument on behalf of the minister seems to be that, if people cannot buy cigarettes, they won’t consume them, and if they won’t consume cigarettes, the risk of contracting a more severe form of Covid-19 will be avoided and then they won’t occupy ICU beds,” said Cockrell.

He said that the pandemic has progressed, yet, even by mid-July the minister still does not give any indication on what is happening to the demand for ICU beds in the country.

“If ICU beds are being overwhelmed, let the minister tell us that. She does not even tell us how many ICU beds there are in the country. For the minister it was argued that this is a temporary ban and that government is studiously monitoring the situation and that, if the threat to ICU beds is gone, the ban will be lifted. Yet, she has shown nothing to indicate she is monitoring the ICU bed demand,” stated Cockrell.

Furthermore, the current regulations allowing the farming of tobacco and manufacturing of cigarettes do not help, argued Cockrell, because the farmers cannot sell the raw tobacco due to a lack of demand from manufacturers like BATSA as a direct consequence of the ban.

Not knowing exactly what will happen

“The minister says that, because she does not know exactly what is going to happen, she needs to assume the worst case scenario, but with respect, that does not make the ban a necessary step, especially if you do not know whether those people who quit smoking due to the ban will derive any benefit in terms of Covid-19 by stopping smoking,” argued Cockrell.

“If you don’t know whether quitting smoking is going to prevent people from getting a more severe form of Covid-19, you cannot say it is necessary to require people to stop smoking. So, is it justifiable for the minister to adopt a cautionary approach? We say it is not reasonable and justifiable unless you have the evidence – you cannot simply assume the worst.”

Earlier on Thursday advocate Andrew Breitenbach SC, on behalf of the minister, argued that government is well aware of the economic harm caused by the ban on the sale of tobacco products, as well as potential job losses. It is monitoring the situation closely and will lift the ban as soon as it is safe to do so and would not impact the health care system. Currently, however, it is not yet safe to lift the ban.

Breitenbach argued that a range of expert evidence considered indicates that, with an estimated 8 million smokers in SA, one can further estimate that the ban has potentially led to between 1.28 million and just under 4 million of them having quit smoking due to the ban, even if just temporarily.

Advocate Karrisha Pillay SC, also on behalf of the minister, argued that the mix of Covid-19 and diseases like HIV and tuberculosis creates “a toxic concoction” with the potential to have a devastating impact on the lung health of populations with enhanced lung risks in South Africa.

It is now up to the panel of judges, namely Tandazwa Ndita, Elize Steyn and Hayley Slingers, to decide on the outcome of the case.

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