Pretoria High Court: The Tobacco Ban Is Rational
On 26 June 2020, judgment was handed down in Fair-Trade Independent Tobacco Association v President of the Republic of South Africa and Another. The key issue was whether the current ban on the sale of tobacco products, e-cigarettes and related products is lawful. The court upheld the legality of the ban, holding that the ban was both rational and necessary, and was therefore authorised by the Disaster Management Act, 2020 (“DMA“).
This case raised some of the following legal questions in relation to the Coronavirus (COVID-19) crisis:
- What is the standard of review to which the promulgation of COVID-19 regulations is subject?
- What does “necessary” mean, within the context of section 27(3) of the DMA?
- How will the rationality of the promulgation of COVID-19 regulations be assessed?
- How will our courts deal with competing scientific evidence about what measures are required to combat the COVID-19 crisis?
- To what extent is public participation required in the regulation making process?
The appropriate standard of review
It has been unclear whether regulation-making constitutes administrative action and is subject to the Promotion of Administrative Justice Act, 2000 (“PAJA“), or is instead subject only to the principle of legality, since Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others, in which the Constitutional Court failed to reach consensus
In a series of recent cases dealing with the COVID-19 regulations, and now in Fair-Trade Independent Tobacco Association, the High Courts have held that regulation making constitutes executive action, and is therefore not subject to the Promotion of Administrative Justice Act, 2000 (“PAJA“). The court held that the minister’s decision to promulgate regulations banning the sale of tobacco products is “clearly. executive action. [and] is conduct susceptible to legal challenges founded on the rationality standard which is in turn founded in the principle of legality. [and is therefore] not administrative conduct which should be challenged under the PAJA”.
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