Batsa opposes govt appeal bid

CHALLENGE TO RULING BAN IS INVALID Tobacco giant files notice of intention to oppose minister’s application.

British American Tobacco SA (Batsa) is gearing up for another round in the ring with Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma.

Last month, the Western Cape High Court upheld Batsa’s challenge to the tobacco sales ban in the early stages of lockdown and declared it to have been unconstitutional and invalid. But Dlamini-Zuma has since launched an application for leave to appeal, which Batsa is now opposing.

The tobacco giant fi led a notice of intention to oppose the minister’s application yesterday. And were it to prove unsuccessful, it also fi led its own conditional application for leave to cross-appeal certain aspects of the high court’s judgment, including the order that each party pay its own costs.

“The ordinary rule is that costs should follow the cause in constitutional litigation where a private litigant is successful against the state,” Batsa’s legal team said.

“[Batsa has] been overwhelmingly successful… Under the circumstances, this honourable court erred in not ordering the [state] to pay [Batsa’s] costs, including the costs of two counsel and the qualifying expenses of [Batsa’s] expert witnesses.”

In her papers, Dlamini-Zuma’s legal team laid out no less than a dozen grounds of appeal. Her lawyers argued the court had erred in accepting the evidence of Dr Chris Proctor, an expert witness Batsa put up.

They charged that Proctor was “partisan” and had “consistently asserted the cause of the British American Tobacco group” as well as that his training was in chemistry and so he was not a medical expert. “This honourable court erred in not addressing either of the [state’s] objections to the admission of Dr Proctor’s affidavit, namely because of his association with Batsa he was not independent and his qualifications and training do not qualify him to provide evidence as an expert on the issues expressed in his affidavit,” they said.

They also questioned the court’s findings that the ban and the regulations governing it had infringed on South Africans’ rights to dignity, privacy and bodily and psychological integrity, as well as their right to choose their trade or occupation, highlighting the temporary nature of the ban.

“The temporary ban, analysed objectively, does not impact on the choice of the trades or occupations of tobacconist and tobacco farmer,” they said.

They maintained the evidence suggested smokers were at risk of developing a more severe form of Covid-19 than their nonsmoking counterparts and that the ban had as a result been rational.

The application is yet to be set down for hearing.