FITA chairperson Sinenhlanhla Mnguni said the association viewed the ban, which came into effect with the national lockdown on March 26, as unlawful, in part because it was not expressly stated in the initial disaster regulations gazetted in March.

"We contend that the ban was never lawful to begin with," he said on Monday, adding that the association was therefore not simply challenging the state's U-turn on lifting the ban last week.

President Cyril Ramaphosa on 23 April said it would be lifted on 1 May, when the lockdown was eased to the Level four regime, but his commitment was retracted six days later by Cooperative Governance Minister Nkosazana Dlamini-Zuma.

In papers filed in the Pretoria High Court, the FITA demands that Ramaphosa and Dlamini-Zuma indicate by Wednesday whether they intend to oppose the application and file answering affidavits by Friday.

The association is asking the court to give the president and minister show cause by 26 May why an order should not be granted that cigarettes are essential goods in terms of Annexure B of the initial national disaster regulations published on 25 March, as well as a further order striking down section 27 of the regulations published on 29 April.

It is also asking for a court order forcing the disclosure of the minutes of three meetings of the National Command Council of Covid-19. These are the meetings where the initial ban was decided, where it was decided that it would be lifted and where that decision was rescinded.

FITA wants these records made available to it by no later than 19 May.

It represents medium-sized tobacco producers, and wants cigarettes to be included in the list of permitted agro-processing products.

It argues that the government ministers involved had exceeded their powers and that the ban did not meet the requirement of proportionality inherent in the exercise of public power. 

Mnguni argued in an affidavit that there is insufficient evidence to contend that a prohibition on cigarettes is effective in curbing the spread of the novel coronavirus.

He also stressed the considerable loss of revenue to the state as a result of the ban and Finance Minister Tito Mboweni's state opposition to keeping it in place. Mboweni said the state had so far lost R1.7 billion as a result of the ban on cigarette and alcohol sales.

The government could face a further court challenge on the ban from British American Tobacco South Africa, which had given government until 10 am on Monday to reverse the ban or face legal action.

Acting Communications Minister Jackson Mthembu has said the government would not be swayed.

President Cyril Ramaphosa on Monday dismissed suggestions that there was tension within government over the ban.

"This was a collective decision and the public statements by both myself and the minister were done on behalf of, and mandated by the collective I lead."

African News Agency