On Tuesday 9 June, judges will start to read through the legal arguments around the ban on the sale of tobacco, ahead of the oral hearing on Wednesday. The case has huge implications: if the judges go against government and declare the regulations banning the sale of cigarettes illegal, the legitimacy of all of the other regulations may be questioned too. 

Crucial to all of this is public opinion. And while government may have prepared a proper legal case, it has been striking how often government ministers and spokespeople have tried to avoid discussing the issue, effectively failing to make its case in the court of public opinion. This could seriously add to divisions in our society around this issue and the lockdown more generally.

The debate about the ban on the sale of tobacco has been easily the most contentious issue of the lockdown. This is partly because of what it is, a ban on a substance used by around nine million people, and partly because of how it has been handled, and the mixed messages that swirled about.

There has always been speculation and sometimes even suspicion around the relationship between Cooperative Governance Minister Nkosazana Dlamini Zuma and President Cyril Ramaphosa. They competed against each other for the leadership of the ANC and the result was very close. It is thus natural to wonder if a struggle for political power is still underway.

It is probably for this reason that the applicant in the case, the Fair-Trade Independent Tobacco Association, has taken legal notice of the fact that Ramaphosa has not said, in legal papers, that he supports the ban (as reported first in Business Day). This is important because it was the president who initially said tobacco could be sold during Level 4 of the lockdown, before Dlamini Zuma then announced that this would not be the case.

The paper quotes Ramaphosa’s spokesperson, Khusela Diko, as saying that there was no need for him to depose to an affidavit because the case is against the person who issues the regulations – Dlamini Zuma.

However, it will be interesting to see if Ramaphosa is consistent in this. Last week, government confirmed that it is going to appeal against a separate ruling on the lockdown regulations. While that case was brought only against Dlamini Zuma, government has confirmed that both the Presidency and the health minister will join the appeal. If Ramaphosa deposes to an affidavit in that case while having failed to do so in the cigarettes matter, he may well be accused of being not fully supportive of the tobacco sales ban.

At the same time, it must be noted that Dlamini Zuma and other ministers, including Presidency Minister Jackson Mthembu, have appeared to avoid public opportunities to properly explain government’s position. Time and time again, Dlamini Zuma and Mthembu have refused to properly answer direct questions at press conferences on this, claiming that the matter is sub judice because it is before court.

Unfortunately, they are not telling the truth, to put it mildly. A judgment going back many years from the Supreme Court of Appeal essentially removes almost the entire concept of sub judice from our law. Sub judice stems from the use of juries in the past, when authorities were concerned that the media coverage of a case would influence a decision made by a jury.

We have not had a jury in South Africa for almost 100 years.

And as the former Deputy Chief Justice, Dikgang Moseneke, once put it, “But how, you might ask, can a statement outside of court affect the outcome of a case in South Africa, where we have no jury system? The answer must surely be that it rarely could, and that the sub judice rule, and its relevance in South Africa, is, at the very least, on the verge of extinction.”

Even government spokespeople have had to be cajoled into making the case against tobacco. On SAfm last Friday, Phumla Williams, the head of CGIS, the government communication system, at first refused to answer questions about the tobacco ban, before she finally quoted the World Health Organisation.

There are consequences of this failure. Dlamini Zuma may give some the impression she doesn’t trust citizens with the truth, or that she is acting high-handedly, in an undemocratic manner. Others may fall prey to the conspiracy theories about her alleged links to the illicit tobacco industry, or simply feel that she and others in government actually don’t have a strong argument at all.

Meanwhile, the informational vacuum created has been filled, predictably, by the tobacco lobby itself. It has happily done every interview and made its case in public.

So then, why the reticence, what could be behind this strange silence?

For those with long memories, some of Dlamini Zuma’s reluctance to discuss the issue might remind them of the Mbeki era. Then, the big issues facing society were often ignored and speeches were about anything but HIV/Aids.

The interesting point to make here is that while numbers are obviously not available, it is entirely possible that some people have indeed given up smoking, or are at least tried to during this period. This would be a win for government, but it may never be quantified, and as a result this argument cannot be accepted by a court.

At the same time, while there has been a huge hullabaloo about how the ban has helped illicit tobacco, there may even be a desirable outcome of this. Many have made the point repeatedly that smokers are moving to illegal cigarettes, which must surely weaken or hurt the legitimate players. 

It might be worth asking, is that a bad thing?

Big Tobacco around the world has shown time and time again that it is not a force for good. These companies continue to sell products they know kill people. While strengthening the illicit manufacturers is not a good thing, weakening the legitimate players could be seen by some as a good outcome.

However, that argument still cannot be made in court. If it were, it would be seen as using the pandemic to achieve ends not legal in normal times.

Of course, it may be possible that there is no legitimate reason at all, and that this issue involves some big power play, either internally within government, or in the sense that people in government now feel they cannot be seen to allow Big Tobacco a win.

This could have greatly negative consequences. Already there are deep divisions in our society over this, along the lines of race and class. Along with this are different attitudes to the judiciary. Should government lose this case, it may lead to officials and their supporters questioning the attitude of judges in a case like this.

It is entirely possible for government to make the case in public, and often, as to why the ban on tobacco should remain. It would lead to a much healthier and balanced public debate if ministers were to simply make the case that many people agree with. DM