THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 309/21

In the matter between:

MINISTER OF COOPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS
FIRST APPELLANT
PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA                                                           SECOND APPELLANT

and

BRITISH AMERICAN TOBACCO SOUTH
AFRICA (PTY) LTD                                                      FIRST RESPONDENT
JT INTERNATIONAL SOUTH AFRICA
(PTY) LTD                                                                  SECOND RESPONDENT
MELINDA FERGUSON                                               THIRD RESPONDENT
KEOAGILE MOLOBI                                              FOURTH RESPONDENT
LIMPOPO TOBACCO PROCESSORS
(PTY) LTD                                                                       FIFTH RESPONDENT
SOUTH AFRICAN TOBACCO
TRANSFORMATION ALLIANCE NPC                        SIXTH RESPONDENT
BLACK TOBACCO FARMERS
ASSOCIATION                                                        SEVENTH RESPONDENT

SUIDER AFRIKA AGRI INISIATIEF NPC             EIGHTH RESPONDENT
SOUTH AFRICAN INFORMAL TRADERS
ALLIANCE                                                                    NINTH RESPONDENT
LA TOSCANA INVESTMENTS CC T/A
J J CALE TOBACCONISTS                                      TENTH RESPONDENT

Neutral citation: Minister of Cooperative Governance and Traditional Affairs
and Another v British American Tobacco South Africa (Pty)
Ltd and Others (case no 309/21) [2022] ZASCA 89 (14 June
2022)
Coram:
MAYA P and ZONDI, VAN DER MERWE and SCHIPPERS
JJA and MOLEFE AJA
Heard:

3 March 2022
Delivered:            14 June 2022
Summary: Constitutional law – COVID-19 pandemic – regulation made under
Disaster Management Act 57 of 2002 (the Act) – prohibiting sale of tobacco and
related products – challenged as infringement of fundamental rights – dignity,
bodily and psychological integrity, freedom of trade and deprivation of property
– limitation under s 36 of Constitution – to reduce strain on health system – not
established – interpretation of ss 27(2)(n) and 27(3) of the Act – tobacco ban
unnecessary – appeal dismissed.

________________________________________________________________
ORDER
________________________________________________________________

On appeal from: Western Cape Division of the High Court, Cape Town (Ndita,
Steyn and Slingers JJ) sitting as court of first instance:
The appeal is dismissed with costs, including the costs of two counsel.
The cross-appeal is upheld with costs, including the costs of two counsel.
Paragraph 224.2 of the order of the Western Cape Division of the High
Court is set aside and replaced with the following order:
‘The first and second respondents are ordered to pay the applicants’ costs,
including the costs of two counsel and the qualifying expenses of the
applicants’ expert witnesses.’

________________________________________________________________
JUDGMENT
________________________________________________________________
Schippers JA (Maya P, Zondi and Van der Merwe JJA and Molefe AJA
concurring)

[1] On 30 January 2020 the World Health Organisation (WHO) declared the
outbreak of a novel virus, namely SARS-CoV-2 (COVID-19), a ‘Public Health
Emergency of International Concern’. In response to the COVID-19 pandemic
the first appellant, the Minister of Co-operative Governance and Traditional
Affairs (the Minister), the Cabinet member responsible for the administration of
the Disaster Management Act 57 of 2002 (the Act), on 15 March 2020 declared
a national state of disaster in terms of s 27(1) of the Act. The Minister made a
series of regulations under s 27(2) of the Act to contain the spread of COVID-19.

These included a nationwide lockdown, defined as ‘the restriction of movement
of persons’, which came into effect on 23 March 2020, and a prohibition on the
sale of tobacco products, e-cigarettes and related products.1

[2] The term, ‘tobacco product’ is defined in the Tobacco Products Control
Act 83 of 1993 (Tobacco Products Control Act) and includes a product containing
tobacco intended for human consumption and any device manufactured for use
in the consumption of tobacco. Vaping products that do not contain tobacco are
not currently regulated in South Africa, but were restricted in the same way as
tobacco products during the lockdown. These products include e-cigarettes,
designed to deliver an aerosol to users by heating a solution of substances which
may or may not contain nicotine.2

[3] In some respects, the lockdown in South Africa resembled lockdowns in
other countries. However, this was not the case when it came to smoking and
vaping. South Africa was the only country in the world to prohibit the sale of
tobacco and vaping products to consumers during a national lockdown, save for
Botswana and India.3 Countries such as Italy, France, Switzerland and Spain had
expressly classified tobacconists and other retailers that sell tobacco and vaping
products as essential shops that could remain open during lockdown.

[4] The respondents are farmers, processors, manufacturers, retailers and
consumers, situated at every level of the supply chain for tobacco and vaping
products. In June 2020 they launched an urgent application in the court below,
for an order declaring that Regulation 45, which provided that ‘[t]he sale of

1 Regulation 27 of the Regulations published under GN R480, GG 43258, 29 April 2020.
2 The concept, ‘vaping’ refers to the process in terms of which a consumer inhales, exhales, holds or otherwise
has control over an electronic delivery system, with or without nicotine.
3 Botswana banned the import and sale of tobacco and tobacco-related products during a declared six-month state
of public emergency – https://theconversation.com/tobacco-bans-during-lockdown-should-encourage-renewed-
anti-smoking-drives-139690.
India
imposed
a
ban
on
tobacco
products
and
e-cigarettes
–
https://www.sciencedirect.com/science/article/pii/S0033350621004418.

tobacco, tobacco products, e-cigarettes and related products is prohibited, except
for export’ (Regulation 45), was unconstitutional and invalid. The prohibition
applied during Alert Level 3 of the national state of disaster.4

[5] The application was heard by a full court of the Western Cape Division of
the High Court, Cape Town (the high court) (Ndita, Steyn and Slingers JJ) on
5 and 6 August 2020. After judgment had been reserved, Regulation 45 was
rescinded by the Minister on 17 August 2020, upon the move to Alert Level 2.
The high court made an order declaring Regulation 45 inconsistent with the
Constitution and invalid, and directed each party to pay its own costs. With the
leave of that court, the appellants appeal the order of invalidity, and the
respondents, the costs order.

The basic facts
[6] The first respondent, British American Tobacco South Africa (Pty) Ltd
(BATSA), after the lockdown had come into effect on 26 March 2020, decided
not to challenge the prohibition on the sale of tobacco until it became clear that
the Government intended to continue enforcing the ban on cigarette sales. It was
anticipated that the extension of the lockdown would be accompanied by a
relaxation of certain restrictions imposed in terms of the regulations, including
the sale of tobacco and vaping products. However, that did not happen and the
ban remained in force when Alert Level 5 lockdown was extended until 30 April
2020.

[7] In his address to the nation on 23 April 2020, the President said that the
sale of cigarettes would be permitted when the country moved to the Alert Level
4 lockdown on 1 May 2020. Pursuant to the President’s speech, a draft framework
for all five alert levels called ‘The Risk Adjusted Strategy’ was published on

4 Regulation 45 was published under GN R608, GG 43364, 28 May 2020.

25 April 2020. It included tables for each of the five alert levels setting out
proposed permitted activities and goods that could be sold during each level. In
line with the President’s announcement, the table applicable to Alert Level 4
included ‘tobacco products’ as goods that would be permitted to be sold.

[8] The draft Risk Adjusted Strategy called for public comment. BATSA made
written representations which included the following. There was insufficient
evidence to draw any firm conclusions on the relationship between smoking,
vaping and COVID-19. An extension of the ban on the sale of tobacco products
would have an adverse impact on the revenue of local suppliers, distributors,
retailers, wholesalers and BATSA’s sustainability programme for 10 000
informal traders. The ban was likely to result in the closure of operations
including farming, processing and local production, and result in the illicit trade
completely replacing all legal tobacco and vaping products.

[9] Despite the President’s statement that the sale of cigarettes would be
permitted in Alert Level 4, on 29 April 2020 the Minister announced that the
prohibition on the sale of tobacco and vaping products would continue. The
Minister’s reasons were twofold. First, consumers in the lower economic bracket
tend to share lit cigarettes (manufactured or hand-rolled), thereby increasing the
risk of coming into contact with infected saliva. This would increase the
transmission of COVID-19. In addition, these consumers do not observe social
distancing. Second, the disease allegedly has an adverse impact on the lungs of
smokers.

[10] On 24 May 2020 the President announced that the country would move to
Alert Level 3 with effect from 1 June 2020, and that the sale of tobacco products
would remain prohibited, ‘due to the health risks associated with smoking’.

Regulation 45 formed part of the regulations published in Government Gazette
43364 dated 28 May 2020.5

[11] The continued prohibition on the sale of tobacco products had an adverse
effect on some 11 million users of tobacco and vaping products in South Africa.
They use these products for pleasure and to manage or relieve stress during their
daily lives. Their inability to enjoy the daily pleasures of smoking and vaping had
a negative impact on their emotional well-being and personal autonomy.

[12] Regulation 45 resulted in heavy losses to the fiscus because tobacco
manufactures, such as BATSA and the second respondent, JT International South
Africa (Pty) Ltd, pay substantial excise duties, which the illicit tobacco trade does
not pay. BATSA alone usually collects and pays about R214 million weekly in
excise revenue to the fiscus, or over R900 million monthly. According to the
organisation Tax Justice SA, the ban on the sale of cigarettes during the lockdown
resulted in the loss to the national Government of some R35 million per day in
excise duties. This means that a total amount of approximately R2.4 billion in
taxes was lost during the first eight weeks of the lockdown.

[13] There was no unanimity within the Cabinet concerning the ban on cigarette
sales. On 30 April 2020 the Minister of Finance publicly stated that he was not in
favour of continuing the ban on alcohol and tobacco, because it had cost the
country at that stage, some R1.5 billion in lost revenue, but that he had lost that
debate.

[14] On 15 May 2020 a research paper entitled, ‘LIGHTING UP THE ILLICIT
MARKET: SMOKERS’ RESPONSES TO THE CIGARETTE SALES BAN IN
SOUTH AFRICA’, was published by Prof Corné van Walbeek, Samantha Filby

5 See fn 4.

and Kirsten van der Zee of the Research Unit on Economics of Excisable Products
at the University of Cape Town (the Walbeek Report).

[15] The Walbeek Report is the product of an online survey conducted from
29 April 2020 to 11 May 2020, which commenced during Alert Level 5 that
changed to Alert Level 4 on 1 May 2020. The survey targeted people ‘who were
regular cigarette smokers in the period immediately before the ban on cigarette
sales was announced on 25 March 2020’. The aim of the research was to ‘explore
how cigarette smokers responded to the ban’ on the sale of cigarettes and ‘assess
the implications of a response on the market for cigarettes in South Africa’.

[16] The main findings of the Walbeek Report may be summarised as follows.
Of the 10 257 people who continued smoking, 90% continued to buy cigarettes
illegally after the lockdown commenced. The range of prices of cigarettes
increased dramatically: from R0.50 to R4.00 each before lockdown, to R0.50 to
R14.00 each thereafter. The survey results showed that since the lockdown, the
price of cigarettes increased by 4.4% per day which suggested that ‘cigarettes
experienced hyper-inflation in the first two weeks of May 2020’. Approximately
16% of smokers reported successfully quitting smoking during the lockdown.
Smokers who responded to the survey questionnaire expressed anger at the
prohibition (5 322) and 1 511 said that it impacted adversely on their emotional
well-being.

[17] The Walbeek Report states that according to an estimate of revenues for
the 2019/2024 fiscal year, the number of legal cigarettes increased by 11% in
2019/2020, probably due to a decrease in the illicit trade and not an increase in
smoking prevalence. The prohibition on cigarette sales as part of South Africa’s
response to COVID-19, was likely to undo this progress. The ban on tobacco
sales fuelled the illicit market for cigarettes. Illicit traders ‘gained a foothold in a

market where they previously could not compete’, by exploiting the ban and the
desperation of smokers. When the ban was lifted a price-war would ensue
between cigarette producers, resulting in a decrease in cigarette prices and
ultimately an increase in cigarette consumption in the country.

[18] The Report concludes that the ban on cigarette sales ‘is failing in what it
was intended to do’. While it was aimed at supporting public health, people were
buying cigarettes illegally in large quantities, despite the lockdown. The ban was
feeding the illicit market which would be difficult to eradicate. The Walbeek
Report states: ‘It was an error to continue with the cigarette sales ban into Level
4 lockdown’.

[19] As stated above, on 1 June 2020 the respondents successfully launched an
application in the high court for an order declaring that Regulation 45 was
unconstitutional and invalid. The grounds were that Regulation 45 constituted an
infringement of the fundamental rights to dignity, privacy, bodily and
psychological integrity, freedom of trade, and property.

[20] The high court found that Regulation 45 did not reduce the strain on the
health system. Therefore, the appellants had not shown that Regulation 45 was
necessary or that it furthered the objectives set out in s 27(2)(n) of the Act.6 On
this basis the court concluded that the jurisdictional facts envisaged in that
provision were absent and consequently, Regulation 45 was ultra vires.

6 27(2)(n) of the Disaster Management Act 57 of 2002 provides:
‘27  Declaration of national state of disaster
. . .
(2) If a national state of disaster has been declared in terms of subsection (1), the Minister may, subject to
subsection (3), and after consulting the responsible Cabinet member, make regulations or issue directions or
authorise the issue of directions concerning-
. . .
(n)   other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise
the effects of the disaster . . . .’

The rights implicated
[21] The respondents alleged that Regulation 45 limited the right to dignity
enshrined in s 10 of the Constitution,7 for the following reasons. Consumers of
tobacco and vaping products were denied the right to exercise their free will: they
were prevented from buying these products during the lockdown. This
infringement of personal autonomy, ie the ability to regulate one’s own affairs,
was an unconstitutional limitation of the right to dignity.8

[22] It was further alleged that Regulation 45 was a limitation of the right to
privacy contained in s 14 of the Constitution.9 It denied consumers the right to
purchase tobacco products for use in the privacy of their homes – conduct in
respect of which consumers legitimately harbour an expectation of privacy.10 This
constituted an unjustifiable intrusion by the State into the private sphere,
particularly in the context of the lockdown where persons were generally
confined to their homes.

[23] Section 12(2)(b) of the Constitution, which forms part of the right to
freedom and security of the person, provides that ‘[e]veryone has the right to
bodily and psychological integrity, which includes the right . . . to security in and
control over their body’. The respondents alleged that ‘control’ includes the
protection of one’s autonomy or bodily self-determination against interference,
and that Regulation 45 limited the freedom and autonomy of adults to choose
tobacco and vaping products, which they enjoyed and found relaxing when

7 Section 10 of the Constitution reads:
‘Everyone has inherent dignity and the right to have their dignity respected and protected.’
8 Barkhuizen v Napier [2007] ZACC 5 (CC); 2007 (5) SA 323 (CC) para 57.
9 Section 14 of the Constitution provides:
‘Everyone has the right to privacy, which includes the right not to have–
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.’
10 Bernstein and Others v Bester N O and Others [1996] ZACC 2 (CC); 1996 (2) SA 751 (CC) para 77; Khumalo
and Others v Holomisa [2002] ZACC 12 (CC); 2002 (5) SA 401 (CC) para 27.

coping with stress, particularly during the lockdown. This was a limitation of the
right to bodily and psychological integrity.

[24] Regulation 45, it was also alleged, constituted a limitation of the right to
choose and practise a trade or occupation freely, guaranteed under s 22 of the
Constitution.11 Prior to the lockdown, the sale of tobacco and vaping products
was lawful. The effect of Regulation 45 was that individual tobacco farmers could
not sell, and nobody could buy their tobacco. This was likely to threaten the
viability of their farming. These farmers could be faced with a stark choice
whether to continue their chosen trade or occupation, or cut their losses and leave
the industry. Tobacconists who sold only tobacco and vaping products were
unable to trade. Their right to choose their trade was taken away by
Regulation 45. Manufacturers, wholesalers and general retailers were denied the
right to practise their trade or occupation, which the respondents alleged, was
arbitrary and not rationally related to the achievement of a legitimate government
purpose.

[25] Finally, the respondents asserted that Regulation 45 was a limitation of the
right not to be deprived of property, contained in s 25(1) of the Constitution.12
For the duration of the prohibition on the sale of tobacco, farmers were unable to
sell their recently-harvested crops, which could go to waste. They were also
unable to use their farms productively, in which they had invested substantial
capital. Manufacturers were not able to use their costly factories and equipment
to manufacture tobacco and vaping products, or sell what they had produced.
Wholesalers and retailers were unable to sell their stock-in-hand of tobacco and

11 Section 22 of the Constitution provides:
‘Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade,
occupation or profession may be regulated by law.’
12 Section 25(1) of the Constitution reads:
‘No one may be deprived of property except in terms of law of general application, and no law may permit
arbitrary deprivation of property.’

vaping products, or utilise their facilities beneficially. All of these industry
participants were unable to alienate their property (tobacco and vaping products)
and realise the value in that property for commercial gain. Manufacturers and
wholesalers were unable to employ their capital assets to turn a profit. This was
a significant limitation of the use, enjoyment and exploitation of their property.

The rights were limited
[26] Counsel for the appellants contended that Regulation 45 did not limit the
relevant fundamental rights based on two arguments. The first was that
Regulation 45 did not prohibit the use of tobacco products, but rather their sale.
But this is a distinction without a difference. The Minister’s affidavit makes it
plain that the only reason for the prohibition on the sale of tobacco and vaping
products, was to make it impossible for people to consume those products during
the lockdown. In fact, the Minister’s case was that the use of tobacco products
and the behavioural risks associated with that use (the sharing of lit cigarettes),
increased the risks of developing a more severe form of COVID-19, and the
transmission of the disease.

[27] The second argument was that the primary right implicated by
Regulation 45 was the right to freedom of trade, occupation and profession in
s 22 of the Constitution, and that even if the regulation had a limiting effect on
the right to dignity and privacy, that effect was incidental to its main purpose –
to regulate the rights of tobacco farmers and tobacconists to sell their products.

[28] This argument however has no basis in the evidence. The Minister herself
stated that Regulation 45 ‘seeks to reduce the incidence of smoking’. This is a
direct limitation of the rights to dignity, and the right to bodily and psychological
integrity. In these circumstances, it is difficult to see how the effect of Regulation
45 was incidental. Further, the authorities on which the appellants relied, namely

Soobramoney13 and Dawood,14 do not support their contention that the limitation
exercise must be performed under s 22 of the Constitution, because that is the
primary right implicated.

[29]  Soobramoney concerned the interpretation and application of the rights to
housing, health care, food, water and social security in ss 26 and 27 of the
Constitution.15 The Constitutional Court in Dawood held that in many cases
where the value of human dignity is implicated, the ‘primary constitutional
breach occasioned may be of a more specific right such as the right to bodily
integrity, the right to equality or the right not to be subjected to slavery, servitude
or forced labour’.16 It means no more than this: in a case where it is alleged that
the right to dignity is infringed, the correct enquiry may involve the breach of
some other fundamental right.

[30] The reason for the second argument is not far to seek. The Minister
preferred to apply the rationality test applicable to s 22, rather than the more
stringent proportionality test required by s 36 of the Constitution. The
jurisprudence of the Constitutional Court referred to below, however, does not
permit the Minister to preclude the s 36 enquiry in this manner.

[31] In any event, the appellants’ second argument has already been rejected by
this Court in Esau,17 a case in which the constitutionality of the Level 4
Regulations was challenged. Plasket JA said:
‘I accept too that regulations 28(1), 28(3) and 28(4) also infringe the fundamental right to
human dignity to the extent that they limit the freedom that everyone has to make their own
decisions, as consumers, as to what goods they wish to purchase. These regulations also

13 In Soobramoney v Minister of Health, KwaZulu-Natal [1998] ZACC 17; 1998 (1) SA 765 (CC).
14 Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs
and Others; Thomas and Another v Minister of Home Affairs and Others [2000] ZACC 8; 2000 (3) SA 936 (CC).
15 Soobramoney fn 13 paras 15-16 and 19.
16 Dawood fn 14 para 35.
17 Esau and Others v Minister of Co-Operative Governance and Traditional Affairs and Others [2021] ZASCA
9; 2021 (3) SA 593 (SCA).

infringe the fundamental right to freedom of trade, occupation and profession – the right to
“perform activities by means of which a livelihood is pursued”. This right is infringed in that
people may only practise their chosen trade, occupation or profession to the extent permitted
by the regulations.’18

[32] The contention that Regulation 45 was not a limitation of the relevant
fundamental rights was not pressed before us, although we were informed that it
had not been abandoned. Rather, the case was argued on the basis that the rights
implicated were limited, but that Regulation 45 was reasonable and justifiable
under s 36 of the Constitution. It is to that enquiry that I now turn.

The s 36 limitation enquiry
[33] The determination of the constitutionality of Regulation 45 involves a two-
stage analysis: the respondents are required to establish that the regulation limits
one or more fundamental rights and if they do so, the burden shifts to the
appellants to justify the limitation in terms of s 36(1) of the Constitution.19 If the
limitation is not reasonable and justifiable under s 36(1), Regulation 45 must be
declared to be inconsistent with the Constitution and invalid to the extent of that
inconsistency.20

18 Esau fn 17 para 118.
19 ‘36  Limitation of rights
(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the
limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and
freedom, taking into account all relevant factors, including-

(a)   the nature of the right;

(b)   the importance of the purpose of the limitation;

(c)   the nature and extent of the limitation;

(d)   the relation between the limitation and its purpose; and

(e)   less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right
entrenched in the Bill of Rights’; Esau fn 17 para 108.
20 Section 172(1)(a) of the Constitution.

[34] At the outset, the approach to a justification analysis under s 36 of the
Constitution in a time of national crisis such the COVID-19 pandemic, as stated
in Esau,21 bears repetition:
‘[T]he executive has no free hand to act as it pleases, and all of the measures it adopts in order
to meet the exigencies that the nation faces must be rooted in law and comply with the
Constitution . . .
That is not to say that the courts have untrammelled powers to interfere with the measures
chosen by the executive to meet the challenge faced by the nation. Judicial power, like all
public power, is subject to the rule of law.’22

[35] The s 36 limitation enquiry requires a balancing of two sets of interests. On
the one hand, there is the right that is limited: its nature; its importance in an open
and democratic society based on human dignity, equality and freedom; and the
nature and extent of the limitation. On the other hand, there is the importance of
the purpose of the limitation. What must be assessed overall, is whether the
limitation is proportional (whether it invades the fundamental right as little as
possible, balancing the harm caused against the purpose served) and whether it is
reasonable (having regard to its purpose and effect).23

[36] The principles governing the limitation enquiry are settled. The party
seeking to justify an impugned law – usually the organ of state responsible for its
administration – must put the factual material or policy considerations justifying
it before the court.24 Although the party relying on the justification must establish
the facts on which the justification depends, a legislative choice is not always
subject to courtroom fact-finding and may be based on reasonable inferences
unsupported by empirical data.25 Where the State fails to prove data and there are

21 Esau fn 17.
22 Esau fn 17 paras 5 and 6.
23 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others [1998] ZACC
15; 1999 (1) SA 6 (CC) para 35.
24Minister of Home Affairs v National Institute for Crime Prevention and the Reintegration of Offenders (NICRO)
and Others [2004] ZACC 10; 2005 (3) SA 280 (CC) (NICRO).
25 NICRO fn 24 paras 35 and 36.

cogent objective factors pointing in the opposite direction, the State would have
failed to establish that the limitation is reasonable and justifiable.26

[37] The Minister’s case on justification may be summarised as follows. The
overarching reasons for prohibiting the sale of tobacco and vaping products for
domestic consumption in Alert Level 3 of the lockdown, were to protect human
life and health, and reduce the potential strain on the health system, particularly
given the then predicted steep rise in the rate of infections following the lifting of
the Level 4 restrictions on work and the movement of people necessary to re-start
the economy. The use of tobacco products increased behavioural risks associated
with the transmission of COVID-19, as some smokers share lit cigarettes. The
emerging research concerning the relationship between smoking tobacco
products and COVID-19 showed that the severity of COVID-19 outcomes is
greater in smokers than non-smokers. Smokers have higher intensive care unit
(ICU) admission rates, a higher need for ventilators and a higher mortality rate
than non-smokers. Smoking thus increases the strain on the country’s health care
resources, including health workers.

[38] It is convenient at this point to deal with the ground of justification based
on the behavioural risks concerning the sharing of lit cigarettes. Regulation 45
did little to address this concern. As the Walbeek Report shows, some 90% of
smokers did not stop smoking during the lockdown and continued to purchase
cigarettes illicitly. Thus, smokers would have continued to share illicit cigarettes
despite Regulation 45. And there is no evidence of any sharing of vaping products
by the users of those products.

[39] Aside from this, any concerns about the sharing of lit cigarettes could have
been addressed by measures other than an absolute prohibition on the sale of

26 Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and
Another [2013] ZACC 35; 2014 (2) SA 168 (CC) para 84.

cigarettes. The founding affidavit states that the Minister could have embarked
on a targeted awareness campaign aimed at ensuring that tobacco users do not
behave in a manner that might increase the spread of COVID-19. The
Government implemented widespread education and awareness campaigns to
inform people about social distancing and sanitising measures to reduce the
spread of the disease. For example, the Minister advised the public not to share
spoons at funerals. Similar measures could have been taken in relation to the use
of tobacco and vaping products.

[40]  The remaining reasons for promulgating Regulation 45, the Minister said,
were supported by a WHO statement and scientific brief dated 11 May 2020 and
26 May 2020, respectively. In the ‘WHO statement: Tobacco use and COVID-
19’, the WHO said this. A review of studies by public health experts convened
by the WHO on 29 April 2020 found that smokers were more likely to develop
severe disease with COVID-19, compared to non-smokers. Available research
suggested that smokers were at a higher risk of developing severe disease and
death. The WHO recommended that smokers take immediate steps to quit by
using proven methods.27

[41] The WHO’s Scientific Brief entitled ‘Smoking and COVID-19’ concludes
as follows:
‘At the time of this review, the available evidence suggests that smoking is associated with
increased severity of disease and death in hospitalised COVID-19 patients. Although likely
related to severity, no evidence to quantify the risk to smokers of hospitalisation with COVID-
19 or of infection by SARS-Cov-2 was found in the peer-reviewed literature. Population-based
studies are needed to address these questions.’

27 The WHO statement also describes what happens when a smoker quits, as follows:
‘Within 20 minutes of quitting, elevated heart rate and blood pressure drop. After 12 hours, the carbon monoxide
level in the bloodstream drops to normal. Within 2-12 weeks, circulation improves and lung function increases.
After 1-9 months, coughing and shortness of breath decrease.’

[42] The WHO statement and Scientific Brief however, do not support the
Minister’s justification for the prohibition. In neither publication is it suggested
that the sale of tobacco or vaping products should be prohibited. The Scientific
Brief itself states:
‘There are currently no peer reviewed studies that have evaluated the risk of SARS-Cov-2
infection among smokers. This research question requires well-designed population-based
studies that control for age and relevant underlying risk factors.’

[43] As to the risk of smokers being hospitalised for COVID-19, the Scientific
Brief states:
‘There are currently no peer-reviewed studies that directly estimate the risk of hospitalisation
with COVID-19 among smokers. However, 27 observational studies found that smokers
constituted 1.4-18.5% of hospitalised adults. Two meta-analyses have been published which
pooled the prevalence of smokers in hospitalized patients across studies based in China. The
meta-analysis by Emami et al. analysed data for 2986 patients and found a pooled prevalence
of smoking of 7.6% (3.8% -12.4%) while Farsalinos et al. analysed data of 5960 hospitalized
patients and found a pooled prevalence of 6.5% (1.4% - 12.6%).’28

[44]  More fundamentally, in order to establish the primary justification that
smokers have higher ICU admission rates, a higher need for ventilators and a
higher mortality rate than non-smokers, which would increase the strain on health
care resources, the Minister was required to show: (i) that smoking leads to a
more severe COVID-19 disease progression; (ii) that a temporary ban on the sale
of tobacco products during lockdown will reverse or lessen that disease
progression; (iii) that Regulation 45 is effective in materially reducing the number
of smokers; and (iv) that the reduction in smoking over the period that the ban
was intended to be in place would have led to reduced ICU bed occupancy at a
level that would have had a material impact on the ability of the public health
system to cope with COVID-19 admissions: in short, that the purpose of

28 According to the Farsalinos paper the pooled prevalence of 6.5% (1.4% - 12.6%) represented one quarter of the
population smoking prevalence rate in China of 26%.

Regulation 45 outweighed the limitation of the relevant rights. Each of these
requirements is dealt with, in turn.

Does smoking lead to more severe COVID-19 progression?
[45] The Minister’s statement that ‘smokers are more likely to develop severe
disease with COVID-19, compared to non-smokers’, was not established in the
evidence.  The WHO Scientific Brief states that there is no peer-reviewed studies
to estimate the risk of hospitalisation of smokers who contract COVID-19. This
is hardly surprising given that according to the medical literature, the pandemic,
an evolving infectious disease, was still under progression and there was limited
data with regard to clinical characteristics of patients and their prognostic factors,
and smoking was assumed to be possibly associated with an adverse disease
prognosis.

[46] What is more, the appellants’ expert, Prof London, a Professor of Public
Health and Family Medicine at the University of Cape Town (UCT), conceded
that the findings in the literature on the risk of infection or hospitalisation for
COVID-19 are mixed; and stated that the literature as to whether or not smoking
is a risk factor for severe COVID-19 goes both ways. Prof London referred to
five studies published in peer-reviewed scientific journals showing that smoking
is a risk factor for severe COVID-19, and the opposite view taken in two peer-
reviewed articles relied on by the respondents’ expert, Dr Morjaria, a Consultant
Physician in Respiratory Medicine. However, the Scientific Brief by the WHO
dated 30 June 2020, and the five studies relied on by Prof London, were published
after the promulgation of Regulation 45, and thus were not considered by the
Minister.

[47] It seems to me that on balance, Dr Morjaria’s opinion that the scientific
evidence on the question whether smoking increases COVID-19 disease

progression is ‘mixed and inconclusive’, is sound. It follows that the Minister’s
statement that ‘[a]t this point in time, the evidence as a whole suggests that
smokers are more likely than non-smokers to develop a severe case of COVID-
19, requiring a ventilator or admission to ICU’, is unsustainable on the evidence.

The effect of quitting smoking on COVID-19 disease progression
[48] Even if this Court were to find that an association between smoking and
disease progression in relation to COVID-19 is established on the papers, the
Minister had to establish that the temporary ban on smoking during the lockdown
was likely to reverse or lessen the progression of the disease. The reason is
obvious: if smoking is associated with severe COVID-19 but that association
would continue even if a person were to stop smoking, then Regulation 45 would
be incapable of achieving its stated purpose of reducing the burden on the health
system to cope with severe cases of COVID-19.

[49] The point is that the medical evidence on both sides showed that the
dangers from cigarette smoking, more specifically its adverse effects on the
respiratory system that impairs pulmonary defence mechanisms, result from long-
term chronic use. Thus, even if it were assumed that the Minister has shown that
the smoking population is more susceptible to certain COVID-19 risks, that
susceptibility would be the result of years or decades of prior smoking. The
Minister bore the onus of showing that this susceptibility would be reduced or
reversed by a temporary cessation of smoking during the tobacco ban.

[50] The Minister apparently did not appreciate this issue and made no attempt
to discharge this onus. The issue is not addressed at all in the WHO literature on
which the Minister relied. Neither Prof London nor Dr Nyamande, a Specialist
Physician and Pulmonologist and the Minister’s expert, addressed the issue in

their affidavits. They dealt with the general health benefits resulting from quitting
smoking, but did not say that this would assist in relation to COVID-19.

[51] Prof London conceded that there is no scientific data to show that quitting
smoking will reduce disease severity in relation to COVID-19. He suggested
tentatively that ‘quitting smoking may reverse the receptor upregulation that is
thought to be the mechanism by which smoking increases the risk for severe
COVID-19 disease’. However, Prof London agreed that this would only be the
case ‘if the link between upregulation of ACE-2 receptors and increased risk for
severe COVID-19 is accepted’. Dr Morjaria however showed that this link is
‘speculative’, because there is no peer-reviewed evidence establishing the clinical
significance of upregulation of ACE-2 receptors in relation to COVID-19 risks.
He said that the literature cited by Prof London suggests that downregulation of
ACE-2 associated with quitting smoking, is not immediate and is observed in
smokers who had quit for at least a year.

[52] In short, there was no scientific justification for the continued ban on the
sale of tobacco products: there is no evidence that short-term quitting has clinical
significance for COVID-19 severity and outcomes.

[53] That left Dr Egbe as the only expert to address the issue on behalf of the
Minister. But Dr Egbe is not a medical doctor: she is a Research Psychologist.
Moreover, Dr Egbe conceded that ‘there is not yet enough data to assess whether
and/or to what extent the chance of infection or disease progression decreases
when a person quits smoking’. At most, Dr Egbe suggested that it was ‘logical’
to believe that stopping smoking would ‘give [smokers’] lungs a fighting chance
against the disease’.

[54] In the light of what is stated above, Dr Morjaria’s conclusion that there is
no consensus that current smoking is a risk factor for infection or COVID-19
disease progression, in my view, is consistent with the medical evidence, and
makes good sense. He said:
‘[B]ased on currently available data in the evolving literature there is an emerging consensus
that risk factors for severe COVID-19 include: older age, male gender, medical comorbidities
including cardiovascular diseases, diabetes, hypertension, increased body mass index (BMI),
chronic kidney disease, solid organ transplants and chronic pulmonary diseases. . . [T]here is
no consensus in relation to current smoking being a risk factor for infection or COVID-19
disease progression. While some of these generally accepted risk factors for COVID-19
severity can be caused by smoking . . . the impact of smoking in relation to these diseases
occurs over a long period of time, often many years (not weeks or months).’

[55] If quitting smoking does not confer a benefit in relation to the chance of
infection or COVID-19 disease progression (as opposed to general improvements
in health), it means that the objectives of Regulation 45 would not have been
achieved. Accordingly, the Minister did not show that the temporary ban on
smoking would have lessened or reversed COVID-19 disease progression.

Regulation 45 did not materially reduce the number of smokers
[56] The respondents relied on the Walbeek Report to show that Regulation 45
was ineffective in reducing the number of smokers. According to the Report, 90%
of survey respondents who did not quit smoking indicated that they had purchased
cigarettes during the lockdown. This means that of the total survey respondents,
16% had quit smoking and only 8.4%, ie 10% of 84% had not purchased
cigarettes during the lockdown. Differently stated, 75.6% of survey respondents
had purchased cigarettes during the lockdown. Even the report by Genesis
Analytics (Genesis), a firm of economists engaged by the Minister to provide an
economic assessment of the respondents’ arguments, states that ‘76% would be a
high proportion’.

[57] The Minister claimed that Regulation 45 was effective in reducing the
number of smokers, based on a study by the Human Sciences Research Council
(HSRC), a report by Genesis, a survey by M4Jam (Pty) Ltd (M4Jam), the
evidence of Mr Richard Murgatroyd, an economist and partner at RBB
Economics (RBB), and expert evidence by Dr Ross, the Deputy Director of the
Research Unit on the Economics of Excisable Products at UCT.

[58] The HSRC study was conducted between 27 March 2020 and 24 April
2020, during Alert Level 5 over the first four weeks of the lockdown. The
statement in the HSRC study that 11.8% of smokers were able to buy cigarettes
during this period has little probative value because, as stated in the Genesis
Report, smokers would have stockpiled cigarettes when the lockdown was first
announced. In any event, the RBB Report offers several reasons for being
sceptical of the results of the HSRC study. For example, the RBB Report states:
‘[I]t it is inherently far more plausible that smokers were able to continue consuming tobacco
products without having to make purchases during the period covered by the HSRC study, by
consuming stockpiles accumulated before the ban, than during the period covered [by] the van
Walbeek study. Consistent with this, the van Walbeek study finds that most respondents (90%
of smokers) had stocked up on cigarettes before the start of the lockdown.’

[59] The survey by M4Jam also has little probative value because M4Jam is not
a market research company, but a crowd-sourcing data platform. The author of
the survey herself describes it as ‘an informal and non-scientific survey’ and
cautions that ‘the information contained therein is not intended as a substitute for
any formal research conducted by any third party’. The Genesis Report states that
a ‘non-trivial’ proportion of smokers had stopped smoking. Genesis did not,
however, perform any independent research to compute what that proportion is.

[60] Dr Ross dealt with this issue most fully on behalf of the Minister.
According to Dr Ross, Regulation 45 would have reduced smoking prevalence

(the percentage of adults who smoke) and smoking intensity (the number of
cigarettes consumed by a smoker per day), because smokers would have been
unable to afford the full price of cigarettes that are sold unlawfully during
lockdown. In fact, she said that this price would consist of ‘both monetary value
(money paid to the seller) and the effort expended to purchase cigarettes (e.g.
time, travel expenses, risk of prosecution). The ban on cigarette sales increased
both components of the price’.

[61] Dr Ross performed a price elasticity exercise regarding smoking
prevalence and said that there would be a ‘10% to 15% quit rate’, and pointed out
that this was close to the number of 16% in the Walbeek Report. Since there are
8 million smokers in South Africa, Dr Ross concluded that ‘if 10% to 15% of
them quit smoking due to the ban, this represents 0.8 to 1.2 million quitters’.

[62] The evidence of Dr Ross on behalf of the Minister is entirely destructive
of the Minister’s case concerning the effectiveness of Regulation 45 – its
foundation is illegality. It means that any reduction in smoking would have
occurred because smokers would not have been able to afford the prices of
cigarettes on the black market. The Minister’s claim that Regulation 45 was
effective because most smokers would have contravened the law, but a small
minority of them would not have been able to afford the prices of illicit cigarettes,
is constitutionally perverse – it relies on unlawful conduct (the sale of illegal
cigarettes at a premium) in order to achieve the intended outcome (a reduction in
smoking).

[63] This perversity is exacerbated by the fact that the State could have achieved
the same outcome by imposing a temporary increase in excise duty on cigarettes,
so that the price of cigarettes sold lawfully would be the same as the price of
cigarettes sold unlawfully during the lockdown. The difference, as the full court
pointed out, is that the fiscus would then have collected the tax revenue lost when

cigarettes were sold unlawfully while Regulation 45 was in force. In other words,
there was an option that was less restrictive than limiting the respondents’
constitutional rights. That option would have had the additional advantage of
generating funds to expand the number of ICU beds beyond the number that
might have been saved by the tobacco ban.

[64] What all of this shows is that on the Minister’s own evidence,
Regulation 45 did not achieve its stated purpose: ‘to reduce the incidence of
smoking’. This, because only 10% to 15% of smokers would have stopped
smoking, and then only for the reason that they would not have been able to afford
the price of illegal cigarettes. Although the appellants submitted that number of
quitters referred to in the Walbeek report (16%) is significant, the fact remains:
some 90% of smokers continued to smoke while Regulation 45 was in force.

The purpose of Regulation 45 did not outweigh the limitation of the rights
[65] The Minister was obliged to show that the benefits of Regulation 45
exceeded the harm it caused, failing which the limitation of constitutional rights
would not be reasonable and justifiable. Section 36(1) of the Constitution requires
the court to ‘weigh the extent of the limitation of the right against the purpose for
which the legislation was enacted’.29

[66] According to the Minister, Regulation 45 would have made available more
ICU beds and ventilators by preventing smokers from contracting a more serious
form of COVID-19. The Minister contended that if 1% of the 8 million smokers
in South Africa had to contract COVID-19, and 5% of that number needed ICU
beds, about 4 000 smokers would require ICU beds and ventilators. There are
approximately 3 300 ICU beds in South Africa.

29 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and
Others: In Re Hyundai Motor Distributors (Pty) Ltd and Others v Smit N O and Others 2001 (1) SA 545 (CC);
National Coalition for Gay and Lesbian Equality fn 23 para 37.

[67] Counsel for the appellants submitted that the 1% number was ‘illustrative’.
This means that the Minister did not put up any evidence to support the contention
that admitting 4 000 smokers to ICUs would place undue strain on the health
system. For this reason, I do not think that the respondents’ calculation that there
would have been about 16 fewer patients in the ICU than would have been the
case had there been no prohibition on the sale of tobacco products, and that this
did not show that the health system would not have been able to cope, takes the
matter any further.

[68] As is demonstrated above, the Minister did not discharge the onus of
showing that the infringement of the fundamental rights in issue was justified. On
the contrary, the evidence shows that the purpose sought to be achieved by
Regulation 45 did not outweigh the limitation of those rights. There can be no
question that Regulation 45 was an unjustifiable limitation of the rights to dignity,
and bodily and psychological integrity.

[69] The third respondent stated that she was involved in a life-threatening car
accident as a result of which she developed post-traumatic stress disorder
(PTSD). She smokes organic tobacco in order to cope with PTSD, which she finds
pleasurable and relaxing, and which has helped her overcome her addiction to
hard drugs, which included heroin and crack cocaine. She has been clean for
20 years. When she ran out of tobacco on 1 May 2020, in desperation she resorted
to smoking Rooibos tea and herbal teas, and bought tobacco on the black market
at three times the normal price. After this purchase she suffered a panic attack
and heart palpitations. This evidence shows that Regulation 45 unjustifiably
limited the autonomy and freedom of persons to regulate their own affairs, to
choose which products to buy to cope with stress, and to exercise control over
their bodily and psychological well-being.

[70] The high court’s finding that the right to privacy was infringed, however,
is inconsistent with the reach and operation of that right. In Bernstein the
Constitutional Court said:
‘The truism that no right is to be considered absolute implies that from the outset of
interpretation its right is always already limited by every other right accruing to another citizen.
In the context of privacy this would mean that it is only the inner sanctum of a person, such as
his/her family life, sexual preference and home environment, which is shielded from erosion
by conflicting rights of the community. . . . Privacy is acknowledged in the truly personal realm,
but as a person moves into communal relations and activities such as business and social
interaction, the scope of personal space shrinks accordingly.’
The Court went on to say:
‘A very high level of protection is given to the individual’s intimate personal sphere of life and
the maintenance of its basic preconditions and there is a final untouchable sphere of human
freedom that is beyond interference from any public authority. So much so that, in regard to
this most intimate core of privacy, no justifiable limitation thereof can take place. But this most
intimate core is narrowly construed. This inviolable core is left behind once an individual enters
into relationships with persons outside this closest intimate sphere; the individual’s activities
then acquire a social dimension and a right of privacy in this context becomes subject to
limitation.’30

[71] Applied to the present case, Regulation 45 did not impact on any particular
person or his or her private life. Neither did it limit the intimate personal sphere
of life of any individual. Instead, Regulation 45 prohibited the sale of tobacco and
vaping products, which involved an individual’s outside relations with others.
Therefore, the right to privacy was neither implicated nor infringed.

[72] Regulation 45 threatened the stability of the entire tobacco value chain.
Tobacconists who sold only tobacco and vaping products were unable to trade at
all. They were the only retailers of goods that were prevented from opening their

30 Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) paras 67 and 77. (Footnotes omitted.)

doors under Alert Level 3.  Many informal traders were forced to close their shops
or stalls.

[73] Regulation 45 meant that tobacco farmers had no buyers for their tobacco
and were likely to go out of business. Although the Minister said that exports
were permitted, it was not feasible, in a very short period of time, for local tobacco
farmers to find external purchasers to purchase the volumes of tobacco that
BATSA would have purchased. Thus, tobacco farmers were unable to sell
harvested tobacco crops and forced to continue operations without any income or
cash flow from the rest of the tobacco value chain.

[74] When the application was launched there were more than 200 commercial
farmers and over 150 emerging farmers producing tobacco in South Africa. They
provided about 8 000 jobs for employees, responsible for more than 30,000
dependants, mainly in rural areas of the country where employment opportunities
are scarce. The inability of tobacco farmers to sell their crops undermined their
ability to continue paying their workers and jeopardised their financial ability.
This was aggravated by the fact that tobacco farmers were excluded from the R1.2
billion disaster relief fund intervention made available to assist South African
farmers with the impact of COVID-19.

[75] As a result of Regulation 45, BATSA lost revenue of approximately R322
million per week. Its total loss of revenue exceeded R2 billion in the nine-week
period since the lockdown commenced.

[76] Regulation 45 unjustifiably limited the right to freedom of trade. As was
held in South African Diamond Producers, a law ‘providing that certain persons
may no longer continue to practise [a] trade, would limit the choice element of

section 22; in these cases there is a legal barrier to choice’.31 The Minister
contended that Regulation 45 was temporary. However, it was not clear at the
time when the prohibition would end – the Minister herself contemplated that the
prohibition could continue for a year. Regulation 45 was rescinded in August
2020. Before that however, tobacconists and tobacco farmers did not know for
how long they would be prevented from practising their trade.

[77] Regulation 45 was also an unjustified limitation of the right to property. It
substantially interfered with the right to use or exploit property, as described in
paragraph 25 above. The Minister’s contention that this limitation also was
temporary, is untenable for the reasons advanced above. Had the prohibition
continued in force for a year as envisaged by the Minister, very few businesses
would have been able to survive. Given the substantial limitation on the right to
property, the Minister was required to show a rational connection between the
deprivation and the end sought to be achieved (the purpose of Regulation 45),
which had to be proportionate.32 This was not shown.

[78] In conclusion on the justification analysis: The extent to which Regulation
45 limited the rights in issue, particularly given the lack of factual and scientific
evidence to support its promulgation, was disproportionate to the nature and
importance of the rights infringed, which are foundational to a democracy. As the
Constitutional Court recently held:
‘. . . [T]he rights in the Bill of Rights are an embodiment of the very character or cornerstone
of our constitutional democracy. Both the nature and importance of the right must necessarily

31  South African Diamond Producers Organisation v Minister of Minerals and Energy N O and Others [2017]
ZACC 26; 2017 (10) BCLR 1303 (CC); 2017 (6) SA 331 (CC) para 68.
32 First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services and
Another; First National Bank of SA Limited t/a Wesbank v Minister of Finance [2002] ZACC 5; 2002 (4) SA 768;
2002 (7) BCLR 702 (CC) para 100; Reflect-All 1025 CC and Others v MEC for Public Transport, Roads and
Works, Gauteng Provincial Government and Another [2009] ZACC 24; 2009 (6) SA 391 (CC); 2010 (1) BCLR
61 (CC) para 48; Shoprite Checkers (Pty) Limited v Member of the Executive Council for Economic Development,
Environmental Affairs And Tourism, Eastern Cape and Others [2015] ZACC 23; 2015 (6) SA 125 (CC); 2015 (9)
BCLR 1052 (CC) para 80.

be taken into account. And the State has no inherent “right” to limit these rights.  But it is
constitutionally obliged to respect, protect, promote and fulfil them.’33

[79] In sum, as stated in the Walbeek Report, ‘the disadvantages of the ban
outweigh the advantages’. For all of the above reasons, and on the facts, the
Minister failed to justify the limitation of constitutional rights in terms of s 36 of
the Constitution. The high court was thus correct in coming to this conclusion.

The application to review Regulation 45
[80] The respondents contended that Regulation 45 was unlawful and fell to be
reviewed and set aside in terms of the Promotion of Administrative Justice Act 3
of 2000 (PAJA) or the principle of legality, on the following grounds. The
Minister abdicated her power to the National Coronavirus Command Council
(NCCC). The Minister had no power under the Act to prohibit the sale of tobacco
and vaping products. Regulation 45 was unnecessary and unreasonable. The
Minister did not follow a fair procedure in making the regulations.

[81] The high court found that the review grounds based on abdication of power
and that the Act does not authorise the making of a regulation prohibiting the sale
of tobacco products, had no merit. It held that the threshold for valid regulation
in terms of s 27(2)(n) of the Act was that the regulation must be ‘strictly necessary
to achieve and/or further the objectives set out in section 27(2)(n)’; and that unless
it was shown Regulation 45 served to reduce the strain on the health system, it
would be ultra vires. The appellants say that the latter findings are incorrect.

[82] Before us, counsel for the respondents, rightly, did not press the argument
that the Minister had abandoned her power to the NCCC. It was however

33 Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another [2020]
ZACC 25; 2021 (2) BCLR 118 (CC); 2021 (2) SA 1 (CC); 2021 (1) SACR 387 (CC) para 35. (Footnotes omitted.)

submitted that Regulation 45 was unlawful for the following reasons. Section
27(2)(i) of the Act expressly empowers the making of regulations that suspend or
limit only the sale of alcohol, therefore s 27(2)(n) of the Act must be interpreted
so as to exclude regulations that suspend or limit the sale of any other products.
Section 27(2) does not grant the Minister the power to make regulations that
prohibit the sale of tobacco products in a manner inconsistent with the Tobacco
Products Control Act. Regulation 45 was not necessary as contemplated in
s 27(2)(n) of the Act. Regulation 45 was vitiated by procedural irrationality,
alternatively, procedural unfairness.

[83]  The review was brought in terms of both the PAJA and the principle of
legality. It would make no difference to the outcome if the provisions of the PAJA
are not applied. On this basis, the respondents’ review grounds are considered
under the principle of legality.

The interpretation of s 27(2)(n) of the Act
[84] This Court in Capitec34 has explained that the triad of text, context and
purpose in statutory interpretation should not be used in a mechanical fashion. It
is the relationship between the words used, the concepts expressed by those words
and the place of the contested provision within the scheme of the statute as a
whole, which constitutes the unitary exercise of interpretation.

[85] The starting point is the purposes of the Act. According to its long title, it
was passed to provide for:
‘an integrated and co-ordinated disaster management policy that focuses on preventing or
reducing the risk of disasters, mitigating the severity of disasters, emergency preparedness,
rapid and effective response to disasters, and post-disaster recovery and rehabilitation;

34 Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others [2021]
ZASCA 99; [2021] 3 All SA 647 (SCA); 2022 (1) SA 100 (SCA) para 25.

the establishment and functioning of national, provincial, and municipal disaster management
centres. . . .’

[86] Section 1 defines a ‘disaster’ as:
‘. . . a progressive or sudden, widespread or localised natural or human-caused occurrence
which
(a)
causes or threatens to cause-
(i)
death injury or disease;
(ii)
damage to property, infrastructure or the environment; or
(iii)
significant disruption of the life of the community; and
(b)
is of a magnitude that exceeds the ability of those affected by the disaster to cope with
its effects using only their own resources.’

[87] Consistent with the purposes of the Act, s 23(1) provides that the National
Disaster Management Centre must determine whether a disastrous event or the
threat of such event should be regarded as a disaster under the Act and if so, the
National Centre must assess the magnitude and severity or potential magnitude
and severity of the disaster and classify the disaster as a local, provincial or
national disaster.

[88] Section 27(1) of the Act empowers the Minister to declare a national state
of disaster if ‘existing legislation and contingency arrangements do not
adequately provide for the national executive to deal effectively with the
disaster’, or ‘other special circumstances warrant the declaration of a national
state of disaster’. Section 27(2)(a)-(m) lists the matters in respect of which the
Minister is empowered to make regulations. Subsection 2(n) specifically
authorises the Minister to make regulations or issue directions concerning ‘other
steps that may be necessary to prevent an escalation of the disaster, or to alleviate,
contain and minimise the effects of the disaster’, ie in relation to matters other
than those stated in s 27(2)(a)-(m).

[89] These provisions of the Act make it clear that if it is necessary to suspend
or limit the sale of a commodity other than alcohol, in order to prevent an
escalation of a disaster, or to alleviate, contain and minimise its effects, and if
doing so is necessary for one or more of the purposes set out in s 27(3), then the
Minister is empowered to make regulations suspending or limiting the sale of that
commodity in terms of s 27(2)(n). This construction accords with the plain
language of ss 27(2) and 27(3), the immediate context of s 27(2)(n), and the
purposes of the Act.

[90] The respondents’ reliance on the maxim inclusio unius est exclusio alterius
for the submission that the power to make regulations under s 27(2)(n) must be
interpreted to exclude the making of regulations that suspend or limit the sale of
any products other than alcohol, because s 27(2)(i) expressly empowers the
making of regulations that suspend or limit the sale of only alcohol, is misplaced.
It ignores the catch-all power conferred by s 27(2)(n), in terms of which
regulations may be made concerning other steps that may be necessary to contain
the disaster. Such steps would include a hard lockdown in order to prevent the
spread of COVID-19. While it is correct that the maxim is one of common sense,
it is not a rule of interpretation and must always be applied with great caution.35

[91] The jurisdictional requirements for the exercise of the power under
s 27(2)(n) are these. There must be a national state of disaster. The Minister must
consult the responsible Cabinet member. The steps taken to prevent an escalation
of a disaster, or to alleviate, contain and minimise its effects, must be necessary.
Whether these steps are necessary turns on the objectively ascertained facts, and
not on the subjective beliefs of the Minister. The power in s 27(2)(n), as in the
case of all the powers specified in s 27(2), must ‘be exercised only to the extent
that this is necessary’ for the purposes specified in s 27(3).

35 Competition Commission of South Africa v Pickfords Removals SA (Pty) Ltd [2020] ZACC 14; 2021 (3) SA 1
(CC) para 50.

[92] Moreover, the above interpretation is sensible.36 The original lockdown
regulations (Alert Level 5) confined people to their homes and suspended the sale
of many goods. The purpose of those regulations was to prevent non-essential
movement of and contact between people, in order to slow the spread of COVID-
19, and to enable the health system to implement measures to cope with an
anticipated surge in the numbers of gravely ill people. On the respondents’
inclusio unius argument, in order to achieve these objectives, the Minister was
empowered to suspend only the sale of alcohol, and not any other commodity.
The argument is untenable. It ignores the purposes of the Act and s 27(2)(n).

Regulation 45 is consistent with the Tobacco Products Control Act
[93] The respondents argued that Regulation 45 was invalid because it is
inconsistent with the Tobacco Products Control Act, since it purported to prohibit
the sale of tobacco products in all circumstances – including instances where the
sale of tobacco products is permitted under the Tobacco Products Control Act.
Section 27(2) of the Act should be interpreted in a way that the Minister is not
empowered to make regulations which are inconsistent with an Act of Parliament.
Unless s 27(2) is construed in this manner, so it was submitted, Regulation 45 is
ultra vires.

[94] The submission is unsound. Section 27(2), properly interpreted, indeed
permits the Minister to suspend or limit rights conferred in terms of other Acts of
Parliament. That much is clear from the matters in respect of which the Minister
is empowered to make regulations or issue directions in s 27(2)(a)-(m). Most of
these matters are regulated by legislation, such as resources of the national
Government including stores, equipment, vehicles and facilities;37 personnel who

36 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA);
2012 (4) SA 593 (SCA) para 18.
37 Section 27(2)(a).

render emergency services;38 the regulation of traffic;39 the provision, control or
use of temporary accommodation;40 the sale of alcohol;41 and the installation and
maintenance of lines of communication.42

[95] The point may be illustrated by reference to s 27(2)(i) of the Act. If the sale
of alcohol is suspended or limited during a national state of disaster in terms of
s 27(2)(i), the provisions of the Liquor Act 59 of 2003 and provincial liquor laws
would remain extant, but their enforcement is temporarily suspended or limited,
whilst the regulation under s 27(2)(i) of the Act is operative. This is specifically
authorised in terms of s 27(2), and is a consequence of the declaration of a
national state of disaster. For these reasons, the respondents’ argument that the
power to regulate does not include the power to prohibit, is unsustainable.

[96] Further, the power to make regulations under s 27(2) of the Act is not
rendered ‘subject to’ any Act of Parliament. On the contrary, s 27(1) empowers
the Minister to declare a national state of disaster by notice in the Gazette if
‘existing legislation and contingency arrangements do not adequately provide for
the national executive to deal effectively with the disaster’,43 or if there are other
special circumstances that warrant such declaration.44 That this was the position
when the state of disaster was declared in March 2020 as a result of the COVID-
19 pandemic, is an understatement. As was stated in Esau,45 the pandemic ‘posed,
and continues to pose, the biggest threat to this country since the Spanish
influenza pandemic of the immediate post-World War I years a century ago’. And

38 Section 27(2)(b).
39 Section 27(2)(e).
40 Section 27(2)(h).
41 Section 27(2)(i).
42 Section 27(2)(j).
43 Section 27(1)(a).
44 Section 27(2)(b)
45 Esau fn 17 para 140.

contrary to the respondents’ assertion, nothing turns on the fact that the Minister
declared a national state of disaster in terms of s 27(1)(b) rather than s 27(1)(a).

[97] The respondents’ reliance on Smit46 for the proposition that s 27(2) ‘would
. . . be unconstitutional if it purported to confer on the Minister the power to make
regulations that have the effect of amending an Act of Parliament’, is inapposite.
Sections 27(2) and 27(3) do not assign to the Minister plenary legislative power:
it does not grant the Minister the power to pass, amend or repeal an Act of
Parliament.47 What is more, ss 27(2) and 27(3) provide a ‘clear and binding
framework for the exercise of the powers’.48

Regulation 45 was unnecessary
[98] The jurisdictional facts for the exercise of the power conferred by
s 27(2)(n) of the Act, have been stated above. Section 27(3) requires that the
powers referred to in s 27(2) be exercised only to the extent that it is necessary,
in this case, ‘for the purpose of assisting and protecting the public’ (s 27(3)(a)),
or ‘dealing with the destructive and other effects of the disaster’ (s 27(3)(e)).

[99] Neither power in s 27(2) nor s 27(3) is expressly said to be exercisable on
the basis of the Minister’s subjective belief, and as stated, whether the exercise
of the powers in s 27(3) is necessary, involves an objective enquiry. In other
words, it is for a court to determine whether Regulation 45 was necessary. It is
not for the Minister to say that she believed that Regulation 45 was necessary to
protect the public or to deal with the destructive effects of COVID-19.

46 Smit v Minister of Justice and Correctional Services and Others [2020] ZACC 29; 2021 (3) BCLR 219 (CC).
47 Smit fn 46 para 31.
48 Smit fn 46 para 36.

[100] The appellants, in reliance on Fair Trade Independent Tobacco
Association,49 contended that ‘necessary’ in this context means ‘rational and
reasonably necessary’. It was submitted that the high court, on the authority of
Pheko,50 erred in concluding that the term ‘necessary’ should be narrowly
interpreted; and that Pheko essentially dealt with the concept ‘evacuation’.

[101] Pheko concerned the interpretation of s 55(2)(d) of the Act, in relation to a
local disaster declared in terms of s 55(1) of the Act. Section 55(2)(d) authorises
the making of regulations concerning ‘the evacuation to temporary shelters of all
or part of the population from the disaster-stricken or threatened area if such
action is necessary for the preservation of life’.51 Section 55(2)(d) is the local
disaster equivalent of s 27(2)(d). Nkabinde J held that s 55(2)(d) must be
‘interpreted narrowly’ and that ‘the Municipality’s powers following upon the
declaration of a local state of disaster must be exercised only to the extent that it
is strictly necessary for the purposes set out in s 55(3)’.52

[102] In Minister of Finance v Afribusiness NPC,53 the interpretation of s 5(1) of
the Preferential Procurement Policy Framework Act 5 of 2000 was in issue. It
provides that the relevant Minister ‘may make regulations regarding any matter
that may be necessary or expedient to prescribe in order to achieve the objects of
this Act’.54 Madlanga J, writing for the majority, held that the word necessary in
that context means something ‘needing to be done’ or ‘that must be done’.

[103] Applied to the present case, the word ‘necessary’ in s 27(3) must be
narrowly construed, to mean ‘strictly necessary’ or ‘essential’, to assist and

49 Fair Trade Independent Tobacco Association v President of the Republic of South Africa and Another 2021 (1)
BCLR 68 (GP) para 87.
50 Pheko and Others v Ekurhuleni Metropolitan Municipality [2011] ZACC 34; 2012 (2) SA 598 (CC) para 52.
51 Section 27(2)(d) of the Act is in identical terms but applies where a national state of disaster has been declared.
52 Pheko fn 50 para 42.
53 Minister of Finance v Afribusiness NPC [2022] ZACC 4.
54 Minister of Finance fn 53 para 114.

protect the public or to deal with the destructive effects of COVID-19. I say this
for the following reasons. First, if the legislative intent was that the power in 27(3)
should be exercised to the extent reasonably necessary, the lawgiver would have
said so. Second, it is a settled rule of interpretation that words in a statute bear the
same meaning throughout the statute, unless such interpretation would result in
injustice, incongruity or absurdity.55 Consequently, the term ‘necessary’ cannot
mean one thing in s 55(3) of the Act, and another in s 27(3). Third, and contrary
to the appellants’ submission, the meaning of ‘necessary’ cannot depend on the
nature of the matter in s 27(2) in respect of which regulations are made. Fourth,
the power conferred on the Minister by s 27(2) cuts across and effectively and
temporarily suspends various statutes dealing with the matters listed in s 27(2)(a)-
(m). It stands to reason that such a power must be exercised only if it is strictly
necessary. Finally, this construction is reinforced by the purposes of the Act and
the fact that a declared national state of disaster is of a short duration – three
months.56

[104]  The objectives sought to be achieved by Regulation 45 have been outlined
in the Minister’s reasons, stated above. The Minister accepted that the reasons for
the prohibition on the sale of tobacco products were confined to the health risks
it posed during the pandemic. The Minister referred to scientific literature dealing
with the pandemic and contended that the use of tobacco products increased the
risk of developing a more severe form of the disease. However, the Minister
conceded that the scientific knowledge on this issue was ‘still evolving’, and that
the medical literature was not ‘absolutely conclusive’, but said that it provided a
sufficient basis for her to ‘rationally conclude that smoking presents heightened
COVID-19 risks’.

55 Liesching and Others v S and Another [2016] ZACC 41; 2017 (4) BCLR 454 (CC); 2017 (2) SACR 193 (CC)
para 33.
56 Section 27(5) of the Act states that national state of disaster that has been declared lapses three months after it
has been declared, and may be extended by the Minister for one month at a time before it lapses.

[105] But that is not the test. Section 27(2)(n) and s 27(3) posit an objective
enquiry as to whether Regulation 45 was necessary to assist and protect the
public, and deal with the destructive effects of the pandemic. The scientific
evidence shows that it was not. And as stated above, assuming that there is a
causal link between smoking and the risk of contracting a more severe form of
COVID-19, the Minister would have had to show that stopping smoking during
the tobacco ban would have reversed or reduced the risk of contracting a severe
form of COVID-19. This too, has not been established in evidence.

[106] To be valid, the making of Regulation 45 had to comply with the
constitutional principle of legality, which applies to all exercises of public power
and requires that the relevant functionary act intra vires the empowering
provision.57 For these reasons, the high court correctly held that inasmuch as
Regulation 45 was not necessary to achieve any of the purposes listed in ss 27(2)
and 27(3) of the Act, it was ultra vires.

[107] It follows that the decision in Fair Trade Independent Tobacco
Association,58 in which an application to review and set aside Regulation 45 was
dismissed, is incorrect. It must be regarded as overruled.

Procedural irrationality
[108] Procedural irrationality entails looking at the process leading to the
exercise of public power as a whole and determining whether the steps in that
process are rationally related to the end sought to be achieved; and if not, whether
the absence of a particular step (part of the means) or the absence of a connection
between a particular step in the end, taints the whole process with irrationality.59

57 Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others
[1998] ZACC 17; 1999 (1) SA 374; 1998 (12) BCLR 1458 (CC) paras 57-59.
58 Fair Trade Independent Tobacco Association fn 49 paras 2, 13 and 99.
59 Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA2 93 (CC) 49-51; Democratic Alliance
v President of the Republic of South Africa and Others 2013 (1) SA 248 (CC) para 39; Law Society of South Africa
and Others v President of the Republic of South Africa and Others 2019 (3) SA 30 paras 61-65.

Procedural rationality does not mean that the decision-maker must always afford
a hearing to an affected party.60

[109] On 25 April 2020 the Minister briefed the media regarding a draft
framework for each of the five Alert Levels to be implemented from 1 May 2020.
The draft framework proposed that the manufacturing and sale of tobacco
products would be permitted in Alert Levels 4, 3, 2 and 1. Pursuant to this media
briefing, a draft Risk Adjusted Strategy to ease the lockdown restrictions, was
published for public comment by 27 April 2020.

[110] On 27 April 2020 the government received 816 sector submissions and
70 014 emails from members of the public. There were submissions in favour of
lifting the prohibition on tobacco sales, including one from BATSA, referred to
above. A large number of submissions were also made on the other side, in which
it was argued that the prohibition on the sale of tobacco products under Alert
Level 4, should continue.

[111] Before making Regulation 45, the Minister considered the main issues
relevant to the continuation of the prohibition on the sale of tobacco, tobacco
products, e-cigarettes and related products during the Alert Level 3 period. These
were the public health-related reasons pointing towards continuing the
prohibition. The submissions in favour of lifting the prohibition were also
considered, such as those made by BATSA during the public participation
process which preceded the making of the COVID-19 regulations for the Alert
Level 4 period, and those mentioned by BATSA in a subsequent media statement
on 6 May 2020.

60 Democratic Alliance fn 59 para 65.

[112] Both sides of the issue were discussed and debated in the NCCC and the
Cabinet. Ultimately, it was decided that the prohibition should be continued.
Given these facts, I do not think it can be said that the decision to continue the
prohibition on the sale of tobacco and vaping products, was procedurally
irrational.

The cross-appeal on costs
[113] There can be no doubt that the respondents had achieved substantial
success in the high court. The full court however ordered the parties to pay their
own costs on the following grounds. The Minister was ‘under both a
constitutional and moral obligation to act swiftly at a time when very little was
known about the COVID-19 pandemic and the scientific knowledge thereof was
[scant] and constantly developing’. The prohibition on the sale of tobacco
products had been lifted shortly after the matter had been argued.

[114] The respondents had raised constitutional issues and had been substantially
successful before the full court. The Biowatch principle was therefore
applicable,61 namely that in constitutional litigation between a private party and
the State, the general rule is that the private party should have its costs paid by
the State, and if unsuccessful, each party should pay its own costs. The
Constitutional Court said that ‘particularly powerful reasons must exist for a court
not to award costs against the state in favour of a private litigant who achieved
substantial success in proceedings brought against it’.62

[115] The appellants accept that the Biowatch principle would apply if their
appeal were to succeed and that there should then be no costs order against the
respondents in this Court or in the high court. But they say that if the appeal fails,

61 Biowatch Trust v Registrar, Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA 232 (CC) para 43.
62 Biowatch fn 61 para 24.

the principle does not apply and the respondents are not entitled to their costs.
The contention is untenable.

[116] It is trite that in awarding costs, a court exercises a discretion. An appellate
court will interfere with such discretion only if the court below ‘did not act
judicially in exercising its discretion, or based the exercise of that discretion on
wrong principles of law, or misdirection on the material facts’.63

[117] This is such a case. The full court did not consider the Biowatch principle.
The fact that the prohibition on the sale of tobacco products had been lifted shortly
after the matter was argued, did not mean that the respondents were not justified
in approaching the high court to set it aside on an urgent basis. The respondents
had requested the Minister to lift the prohibition before the application was
launched, but the Minister declined to do so.

[118] That the Minister was compelled to act swiftly in response to the COVID-
19 pandemic, did not alter the fact that the Minister acted unconstitutionally.64
The respondents were compelled to go to court to vindicate their constitutional
rights. The Minister filed voluminous answering papers, including expert
evidence running into hundreds of pages. It is unfair that the respondents should
pay these costs, occasioned by the manner in which the Minister chose to litigate.

[119] It follows that the cross-appeal must be upheld with costs, including the
qualifying expenses of the respondents’ expert witnesses.

63 Biowatch fn 61 para 31.
64 Pheko fn 50 para 52.

The order
[120] In the result, the following order is issued:
The appeal is dismissed with costs, including the costs of two counsel.
The cross-appeal is upheld with costs, including the costs of two counsel.
Paragraph 224.2 of the order of the Western Cape Division of the High
Court is set aside and replaced with the following order:
‘The first and second respondents are ordered to pay the applicants’ costs,
including the costs of two counsel and the qualifying expenses of the
applicants’ expert witnesses.’

___________________
A SCHIPPERS
JUDGE OF APPEAL

Appearances:

For appellants:
M T K Moerane SC (with him A Breitenbach SC,
K Pillay and S Kazee)
Instructed by:
The State Attorney, Cape Town

The State Attorney, Bloemfontein

For respondents:
A Cockrell SC (with him A Toefy)
Instructed by:

Webber Wentzel, Cape Town

Webbers Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
14 June 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
Minister of Cooperative Governance and Another v British American Tobacco South Africa
(Pty) Ltd and Others (case no 309/21) [2022] ZASCA 89
The Supreme Court of Appeal (SCA) today dismissed an appeal by the Minister of Cooperative
Governance and Traditional Affairs (the Minister), against an order of the Western Cape
Division of the High Court, Cape Town (high court). The high court made an order declaring
that a regulation made during the national state of disaster, which provided that ‘[t]he sale of
tobacco, tobacco products, e-cigarettes and related products is prohibited, except for export’
(Regulation 45), was unconstitutional and invalid. The high court, however, did not award the
respondents costs, and they cross-appealed against that order.
The respondents are farmers, processors, manufacturers, retailers and consumers, situated at
every level of the supply chain for tobacco and vaping products. They successfully challenged
Regulation 45 in the high court on the grounds that it was an infringement of the fundamental
rights to dignity, privacy, bodily and psychological integrity, freedom of trade and deprivation
of property; and on the basis that the Minister had not shown that the regulation was necessary,
as contemplated in s 27(3) of the Disaster Management Act 57 of 2002 (the Act).
In the SCA, the Minister contended that the reasons for Regulation 45 were to protect human
life and health and reduce the potential strain on the health system, and that the medical
evidence at the relevant time showed that the use of tobacco products increased the risk of
developing a more severe form of COVID-19. The Minister argued that smokers with COVID-

19 had higher ICU admission rates, a higher need for ventilators and a higher mortality rate
than non-smokers. In order to establish this, the SCA held that the Minister was required to
show that: (i) smoking led to a more severe COVID-19 disease progression; (ii) that a
temporary ban on the sale of tobacco products during lockdown would reverse or lessen that
disease progression; (iii) that Regulation 45 was effective in materially reducing the number of
smokers; and (iv) that such reduction in smoking would have led to a reduced ICU bed
occupancy which would enable the health system to cope with COVID-19 admissions. The
SCA concluded that the Minister failed to do so.
The SCA held that the scientific evidence as to whether smoking increased COVID-19 disease
progression was mixed and inconclusive. The statements by the World Health Organisation,
on which the Minister relied, do not support the Minister’s justification for the ban on the sale
of cigarettes. There is no evidence that quitting smoking in the short-term, has clinical
significance for COVID-19 severity and outcomes. Regulation 45 did not reduce the number
of smokers – 90% of them continued to smoke and the claim that number of smokers had been
reduced, was based on illegality: a reduction in smoking would have occurred because smokers
would not have been able to afford the prices of cigarettes on the black market. The State could
have achieved the same outcome by imposing a temporary increase in excise duty on cigarettes.
The Minister thus failed to show that smokers have higher ICU admission rates, a higher need
for ventilators and a higher mortality rate than non-smokers, which would have increased the
strain on the health system.
The claim that smoking increased the behavioural risks associated with COVID-19, because
smokers share lit cigarettes and do not observe social distancing measures, was also not
established. This concern could have been addressed by measures other than an absolute ban
on the sale of cigarettes. Regulation 45 did not prevent smokers from sharing lit cigarettes,
since 90% of them continued smoking during the lockdown.
The SCA consequently held that the limitation of the rights to dignity, bodily and psychological
integrity, freedom of trade and deprivation of property was not justified in terms of s 36 of the
Constitution. Regulation 45 unjustifiably limited the autonomy of persons to regulate their own
affairs, and to exercise control of their bodily and psychological integrity. It infringed the right
to freedom of trade in that farmers could not sell and nobody could buy their tobacco.
Tobacconists were unable to trade. Farmers were unable to use their farms productively and
manufacturers, their costly factories and equipment. This was an unlawful infringement of the

right to property. However, there was no infringement of the right to privacy because
Regulation 45 did not limit the intimate personal sphere of life of any individual.
Finally, the SCA held that Regulation 45 was not strictly necessary or essential in order to
protect the public or to deal with the destructive and other effects of the disaster, as
contemplated in s 27(3) of the Act.
In the result, the SCA dismissed the appeal and upheld the respondent’s cross-appeal on costs.
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