How I nearly sued the government to allow me to smoke

Approached by British American Tobacco SA to be a co-applicant in a lawsuit against the government, to free tobacco during Level 4 lockdown last week, Melinda Ferguson thought she’d finally get her fix. That’s until BATSA inexplicably dropped the case.

For any nicotine addict, Sunday 26 April was a night of great celebration after the Prez announced the imminent emancipation of tobacco in Level 4. 1 May was to be T-Day. Never mind Workers Day, it was going to be Big Smoke Day. Then the betrayal happened on Wednesday 29, when Co-operative Governance minister, Nkosazana Dlamini-Zuma dropped the smokeless bomb. The big Flip Flop.

In a few sentences she broke the hearts of 11 million local smokers, announcing that tobacco would no longer be available because 2,000 people had submitted comments to oppose tobacco’s availability and that “sharing zols” would endanger people’s lives in the time of Corona. And just like that South African smokers were doomed.

I had bought a rather large stash of Raw, my preferred organic tobacco the day before Lockdown, on 26 March, but now I was literally on the last dregs. By Thursday morning my supply was nada. I’d planned to camp out at my local tobacconist on Friday 1 to replenish my fix, much like people do when a new iPhone is released. NDZ’s announcement left me devastated. I took to social-media, screeching my rage. I was joined by thousands of smokers who were reeling.

I had bought a rather large stash of Raw, my preferred organic tobacco the day before Lockdown, on 26 March, but now I was literally on the last dregs. (Photo supplied)

I found a two-year-old clump of stale vanilla tobacco in the bottom of a drawer and although the sweet smell sickened me, I was desperate. I microwaved it to try to nuke the nauseating aroma. For someone in recovery, with 20 years clean and sober from a crack, heroin and alcohol addiction, my behaviour was embarrassing. It reminded me of those days I searched for crumbs of crack between the car seats. I was fully aware that all my addict buttons had been pushed sky high, but I was desperate for my nicotine fix.

At eight on Thursday morning I received a phone call from an old acquaintance who now works for British American Tobacco SA. She’d seen my rant on FB and was calling to ask me if by any chance I’d be prepared to write some kind of affidavit on behalf of BATSA, as SA’s largest tobacco company was planning to take the government to court.

On a normal day I would have thought hard about whether I wanted to get into bed with conglomerate BAT who were investigated by the UK Serious Fraud Office for bribery and corruption in 2017, but my need to access tobacco overrode clear thinking.

I was informed that lawyers representing BATSA would contact me. And soon they did. By Friday my carefully constructed affidavit was submitted to a group of legal eagles who were pulling all-nighters to get the case together to submit by Monday 4 May. The following day, based on the strength of my testimony, I was asked whether I would consider becoming a “co-applicant” in the case. That sounded important. This time I decided to check who my bedfellows were. The list was as follows:

  • British American Tobacco SA
  • Japanese International Tobacco
  • Melinda Ferguson
  • Limpopo Tobacco Processors
  • South African Tobacco Transformation Alliance
  • Black Tobacco Farmers Association

I found this rather amusing. Little old ex-junkie me and all these big corporations and alliances. But I was up for the ride.

This was the gist of my affidavit as a co-applicant, (with some creative embellishment for the purposes of this story):

“My love affair with tobacco and nicotine started at the age of four when I smoked my first stompie. I was 17 years old when I started smoking regularly and subsequently had a love relationship with nicotine for about 20 years. During this time I also became a heroin and crack addict. When I finally got clean in 1999, cigarettes were a huge part of managing my recovery for the first five years of sobriety. I probably wouldn’t have managed to kick smack and crack if I had not been able to use tobacco products as a crutch. Smoking helped me divert my cravings for harder drugs, helping to calm me down and reduce my anxiety.

“Then a miracle happened and I managed to stop smoking for 10 years.

“In 2014 I was involved in a serious car accident,( to be specific I wrote off a R3.2-million Ferrari). I nearly lost my life and the fallout from the accident brought on a severe case of PTSD (post-traumatic stress disorder).

‘When I finally got clean in 1999, cigarettes were a huge part of managing my recovery for the first five years of sobriety.’ (Photo: supplied)

“On the verge of a nervous breakdown, brought on by the acute stress I suffered as a result of the accident, which included serious legal and financial consequences, I was hospitalised for three weeks at Crescent Clinic in Randburg. My treatment included taking the prescribed medication, Seroquel and Epitec, for my PTSD. The pills were supposed to assist with my extreme anxiety. Instead I soon found that the medication impaired my cognitive abilities: I had nightmares, I became extremely forgetful and my energy levels dropped. After observing my mental capacities diminish, I made a decision to stop taking the medication a few months after leaving the clinic, as it was harmful to my physical and psychological well-being. In particular the drugs inhibited my creativity. As a writer and publisher, I rely on my brain to earn a living.

“I subsequently began smoking cigars to cope with my anxiety. They soon became too expensive to keep purchasing and so I opted to smoke organic roll-up tobacco which has no chemicals or pesticides. Off the mind-numbing psychiatric medication, with the aid of my rollies, I soon began to feel better and cope with the pressures of life again.

“No matter how many years a serious addict has been clean and sober for, there is always a possibility of returning to old destructive habits. In my 20 years of sobriety, I have seen many addicts with long-term clean time, relapse and ruin their lives. Besides the pleasure that smoking gives me, I believe tobacco has been very effective in not taking me back to those dark days when I was a serious addict with a dangerous addiction to hard drugs. As a free-thinking human being, I have made a conscious choice to smoke tobacco.

“When the government announced that tobacco would be available for purchase on 1 May, and then inexplicably withdrew this right on Wednesday 29 April, it was a severe shock to my system. I felt a deep sense of betrayal and a sudden lack of faith in government, who I have been strongly supporting, before and during the lockdown. It felt like the government had said one thing, and then inexplicably broken its word, like the government was playing mind games with smokers, who have an addictive need for tobacco and tobacco products. This left me feeling betrayed, depressed and powerless. In a single night it felt like I had lost faith in my government as these measures to ban tobacco appear to be punitive and it has led me to wonder how many more times the government will break its word.

“Although government invited the public to make comments on the proposed alert Level 4, I do not believe it acted in a manner that is procedurally fair. I did not comment because the president had expressly stated in his address to the nation on 26 April, that the sale of cigarettes would be permitted — in fact this was the only retail good he expressly referred to as being available in his entire address.

“Government then published a document that was intended to inform public comments headed “Draft Framework Public Consultation 25 April 2020”. That document too provided no indication that the sale of tobacco and tobacco products would be prohibited. Had I known that it was possible that the sale of tobacco products would be banned, I would most certainly have submitted comments in support of allowing the sale of these products. Subsequent to the announcement of the Tobacco Prohibition on Wednesday 29, I signed a petition in favour of the sale of tobacco products to make my voice heard by government. To date this petition has reportedly been signed by more than 500,000 people.

“As a result of the government failing to disclose that it had materially changed its view on the sale of tobacco products from the position the president communicated to the public, I was deprived of the opportunity to participate in the decision-making process and the government has made an uninformed decision which severely prejudices the well-being of smokers during the lockdown period.

“I am very aware that I can source illegal cigarettes on the black market as millions of smokers are apparently doing. I have made a pact with myself not to do this as at this stage — I do not want to contravene the regulations. I feel that if I start trying to “score” cigarettes illegally it will harmfully remind me of a time when I was a desperate addict trying to “score” heroin and crack cocaine.

“I am afraid that engaging in illicit activities may be a slippery slope back to exposure and addiction to hard drugs. I know from friends who are smokers that there is a thriving illegal tobacco market. The prices being charged are extortionate.  Single cigarettes cost between R8 to R10. A single packet costs between R80 to R100 and in some cases, I have heard of cartons of 10 packets being sold for close to R 2,000. Now that the sale of cigarettes is not permitted under alert Level 4, and potentially not even under alert Level 3 or 2, I fear the prices may further escalate.

“We are into our third phase of lockdown which is an incredibly stressful time. It has been a shock to our systems. In the early days of lockdown, I felt like I could not get out of bed, while on other days I have had manic energy. Tobacco has effectively helped me cope. None of us knows when this is going to end. I believe that the ritual of rolling a cigarette, in the safety of my home, really makes a day much brighter. It lifts my mood and allows me to be focused and productive.

“The Tobacco Prohibition has had a severe impact on my psychological and emotional well-being, and in particular my ability to regulate my stress and anxiety. I cannot see any rational basis related to Covid-19 for the government to allow for the sale of sugar or coffee, which in my experience are also stimulants and form part of peoples’ daily coping rituals, or for that matter, other prescription drugs used for anxiety and stress management, many of which — as I have personally experienced — may have life-threatening and cognitive-impairing side effects, while simultaneously prohibiting the sale of tobacco products.

“I find it ironic that the government cited the “sharing of zols” as a reason for this prohibition, when illegal cigarettes, which are widely available, are more likely to be shared because of their exorbitant pricing. As a result of the Tobacco Prohibition, smokers — like myself — are prejudiced and our mental health and well-being is put at risk, while consumption of coffee, sugar and prescription drugs is not prohibited. This is inexplicable.”

And now I quote verbatim from my affidavit:


The Tobacco Prohibition infringes my fundamental rights

  • Section 10 of the Constitution provides that “[e]veryone has inherent dignity and the right to have their dignity respected and protected”. I am advised that the right to dignity, which encompasses the respect for the autonomy and inherent worth of each person, is both a self-standing right and a value that informs other rights, such as the right to freedom of person.
  • Section 12(2) of the Constitution, which forms part of the right to freedom and security of person, provides that “[e]veryone has the right to bodily and psychological integrity”, which includes the right to “security in and control over their body”. I am advised that “psychological integrity” includes protection against undue stress or shock. I am also advised that “control” includes the protection of one’s autonomy or bodily self-determination against interference and any law that limits this autonomy, and in particular the autonomy to take steps to manage one’s own stress, constitutes a prima facie infringement of this right.

As an adult, I should have the autonomy and freedom to choose the products I use to cope with stress and anxiety. The government has limited my freedom and autonomy to make these choices and my inherent human dignity through the Tobacco Prohibition. They have done so without any justifiable basis as less drastic means are available to achieve the government’s Covid-19-related aims.

I couldn’t wait for Monday 4 May, for the government to be served. I had come to believe that the case was far more important than simply giving smokers their right to purchase and smoke tobacco products – it addressed our fundamental rights as human beings to the freedom of choice. On the 5th of May, I received a mail from the legal firm representing BATSA, to regretfully inform me that their client had withdrawn. I was devastated. I had put in long hours, and had been weighing my bets on the strength of our case.

I slunk off to the microwave to nuke some more vanilla tobacco. Then I got a phone call from a friend.

“I know you are struggling. I just want to tell you that there’s a place in the CBD selling your organic tobacco.”

All promises to not go black market flew out the window. Within 15 minutes I was combing the streets looking for said supplier. I arrived at a bolted security gate. A man appeared.

“Do you have any organic tobacco?” I whispered. He looked up and down the streets and let me in. The deal went quickly. I purchased his last two packets of Raw for R600 (they would usually cost R130 apiece.)

“Let me know when you get more!” I whispered as I handed him my cash and scuttled back to the car. I hid my stash under the seats lest I got stopped at a roadblock. It may as well have been heroin. DM


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