British American Tobacco South Africa (Batsa) on Wednesday counter-filed an application for leave to appeal the December high court ruling in which it successfully argued that last year’s five-month-long tobacco sales ban was unconstitutional.
The move follows an application for leave to appeal from the government, which has raised fears in the industry that Co-operative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma is pushing to revive the contentious prohibition that accompanied Covid-19 lockdown alert levels five, four and three.
The Western Cape high court ruling overwhelmingly went in Batsa’s favour. In papers filed, the tobacco giant begs leave to challenge it on four points, provided the government’s application for leave to appeal is successful.
“The application for leave to cross-appeal is conditional upon the first and second respondents’ application for leave to appeal being granted,” Batsa says in its notice to the court.
It plans to withdraw the application, should the government do the same.
If not, it will challenge the court’s finding that each party pays its own costs. In this regard, Batsa argues that the court erred in not awarding a cost order against the government because the ban had already been lifted by the time the ruling was handed down.
Legal precedent would have it that when a private entity succeeds in constitutional litigation against the state, its costs should be paid by the state, Batsa argues in its application.
Secondly, it will question the court’s finding in the minister’s favour that she had not acted ultra vires by imposing restrictions on the tobacco industry in terms of the Disaster Management Act.
Batsa had argued that because the law expressly grants the minister the power to impose restrictions on the alcohol trade but was silent on other goods, the maxim inclusio unis est exclusio alterius should apply and preclude her from making regulations about tobacco.
But a full bench found that this guideline “did not per se exclude the minister’s authority to make provision 45”, which imposed the ban.
Moreover, the judges said, agreeing with Batsa’s strict reading of the maxim would “undermine the sweeping and general wide powers explicitly bestowed on the minister” by section 27(2) of the Act.
But in its application Batsa insists that these powers do not extend to limiting the sale of any goods apart from alcohol and that, therefore, regulation 45 was indeed unlawful.
This point of law was one of only three decided in favour of Dlamini-Zuma in an otherwise damning ruling that held that the ban flouted administrative law because it did not meet the legal threshold of necessity, nor comply with the Constitution, in so far as it robbed both smokers and tobacco-industry stakeholders of their rights.
If the matter proceeds to the Supreme Court of Appeal, Batsa also intends challenging the other two points, including that it was not unlawful for the minister to pass disaster regulations that were inconsistent with existing legislation and that she had satisfied the requirement of consultation with other relevant cabinet ministers.
Should the high court deny the government leave to appeal, it may well not be the end of the matter, because the minister could then directly petition the appeal court in Bloemfontein.