Co-operative Governance & Traditional Affairs Minister Nkosazana Dlamini-Zuma faces the prospect of being pursued for contempt after missing a court-ordered deadline to file an answer to the first major legal challenge to the government’s controversial cigarette ban, says a Business Day report by legal writer Karyn Maughan.

The Minister had until the close of business yesterday to respond under oath to lobby group Fair-Trade Independent Tobacco Association’s (Fita’s) challenge to the rationality of the tobacco ban, which is due to be heard by the Gauteng High Court (Pretoria) next week (9-10 June).

But the deadline went unheeded, seemingly without explanation or apology.

Fita chair Sinenhlanhla Mnguni reportedly told Business Day it was ‘beyond comprehension’ that President Cyril Ramaphosa and Dlamini-Zuma, ‘despite the significant time periods afforded to them, had failed to serve their answering affidavit in this matter timeously’.

But, perhaps more damaging, her as yet unexplained failure to file her response could reinforce speculation that the state does not have any real evidence to justify the cigarette ban – and is simply trying to prevent the case from being heard through unwarranted delays.

Should the Minister fail to file a response to Fita’s court action in the coming days, Mnguni said his organisation would weigh its options with regard to pursuing her for contempt of court.

Mnguni added that Fita was very concerned by the conduct of the State Attorney, who sought, for the second time, to postpone the case.

As previously reported, State Attorney Arista Wasserman wrote directly to Judge President Dunstan Mlambo on Tuesday asking him to delay the hearing of Fita’s application by at least two weeks. Just days earlier, the court had refused a similar request for a postponement from Wasserman, notes Business Day.

This week Wasserman argued that Dlamini-Zuma needed more time to provide the court with a record of the documents and information that led the government to continue the tobacco ban into level three.

Mnguni said Fita did not consider Wasserman’s direct communication with Mlambo appropriate, given that he is one of the three judges set to hear its case.

Mlambo has not responded to Wasserman’s letter.

Full Business Day report

Government's claim that banning cigarette sales would make people give up smoking is ‘untenable and not supported by evidence’, according to court papers filed by Fita in response to an affidavit by Dlamini-Zuma last week on reasons why the government took the decision to ban the sale of cigarettes.

In a supplementary affidavit, Mnguni said the reasons for the decision revealed a focus on the health hazards associated with the use of tobacco products, notes TimesLIVE.

He said there was ‘no rational basis’ to the ban.

‘This is a misguided inquiry and these hazards cannot justify the outright prohibition against the sale of the products,’ said Mnguni. He said there was also no rationality in the contention that the ban would force people to stop smoking and drive illicit traders out of business, as claimed in Dlamini-Zuma's affidavit.

‘The approach taken in relation to the prohibition in question is nothing less than remarkable, and apart from there being no rational basis for the prohibition – there simply being no evidence justifying it – there has been no consideration given to proportionality,’ said Mnguni.

‘There is also not any rational consideration given to the enormous harm that has been and continues to be occasioned to not only the economy, employment, livelihoods, but also to the health and safety of individuals. It is undeniable that simply and summarily preventing smokers and users of tobacco products from using these products gives rise to very serious physical and emotional adverse consequences. This leads to many users resorting to illicit non-regulated products that pose a significant health hazard.’

He added that Dlamini-Zuma's ban in relation to these issues was high-handed and amounted to executive overreach.

Full TimesLIVE report