Top judge overturns date deal in lockdown case on cigarette ban

Sunday Times 28 June 2020

Western Cape judge president John Hlophe has been dragged into the legal challenge against the ban on cigarette sales brought by tobacco giant British American Tobacco SA (Batsa) and nine others.

The litigants have questioned Hlope’s conduct after he overturned an agreement to hear the matter on Tuesday and instead postponed it by a month, without giving reasons. This left them fuming and threatening to take the case to another court.

They also accuse the state attorney, representing co-operative governance & traditional affairs minister Nkosazana Dlamini-Zuma and President Cyril Ramaphosa, of first having agreed to schedule the matter for Tuesday before backtracking, claiming Batsa and the others introduced “substantially new material” in their responding affidavits, which would take time to respond to.

Batsa and its co-applicants – which include organisations representing tobacco farmers – went to the Western Cape High Court asking it to set aside a three-month ban on tobacco sales introduced during the nationwide lockdown.

Dlamini-Zuma argued in court that the ban was essential to fight the Covid-19 pandemic as smokers are more vulnerable to the disease, a claim she says is backed by the World Health Organisation.

On Friday, the high court in Pretoria turned down an application by the Fair-Trade Tobacco Association to reverse the ban, with costs.

The Sunday Times has seen e-mails between Lizette Potgieter, registrar in the chambers of the Western Cape judge president, and the applicants’ lawyers, in which all the parties first agree the matter should be heard on an urgent basis on June 30, a date they then proposed to Hlophe.

They wrote to Hlophe on June 18 asking that the case be heard on June 25 or 26, and asked for a meeting with him via video conferencing to discuss the date.

On Monday, the applicants’ lawyer, Mike Evans of Webber Wentzel attorneys, wrote to Potgieter asking if Hlophe had read the e-mail.

“We and our clients, and I’m sure the respondents and their legal teams as well, are very anxious to receive the answer to the request set out in the attached letters . Please can you either forward us a response or arrange a meeting for the legal teams with the honourable Judge President?” Evans wrote.

Potgieter responded on Tuesday, informing Evans that Hlophe would not meet them but wanted the lawyers to agree to a hearing date.

Evans responded twice, saying he had proposed June 30 to the state attorney and was waiting for a response, and again a short while later to say they had agreed on the date. It was also agreed that the replying affidavits would be filed on Tuesday, and that the applicants’ heads of argument would be filed on Thursday, followed by those of the respondents on Friday.

However, on Thursday, Potgieter stunned the litigants when she told them Hlophe would schedule the matter before a full bench only in six weeks’ time.

“At the direction of the Judge President, this matter can only be heard next term after Full Bench Appeals, that is after 4 August, 2020,” Potgieter wrote.

Evans responded, telling Potgieter to ask Hlophe to reconsider his decision because the matter was urgent and he had allowed the state and the applicants to decide on a date, which they had done, and all papers had been filed.

The applicants later found out that the state attorney had written to Hlophe without consulting them, agreeing that the case be delayed on the basis that the litigants had included “substantial new matters” in their responding affidavits, including testimony from two experts.

But the applicants insist that no new matters were introduced and everything they included was in response to what Dlamini-Zuma had raised.

Evans later wrote to his clients, telling them what happened: “In my 33 years of practice I have never seen a situation like this before, where the parties are given the go-ahead in urgent application to agree on a date, they do so, all the papers are filed, and two days later that decision is reversed.”

He said they had thought about transferring the application to the high court in Pretoria on an urgent basis, but the state attorney’s office did not agree.

“This is a unique scenario which I cannot explain,” he wrote.

Evans told the Sunday Times yesterday: “What prompted the judge president, when he had said we could agree on a date, to suddenly shift the date to August 4?

“The second question is, assuming the minister needed more time to reply to our papers, why six weeks and not two weeks? We took eight days to prepare those papers.”

Evans said his clients had no choice but to abide by Hlophe’s decision. Three judges have been assigned to hear the matter in August.

Efforts to get comment from Hlophe or Potgieter proved fruitless.

Nathi Mcube, spokesperson for the office of the chief justice, would not comment, saying such matters would not be discussed outside court.

Hlophe has been dogged by controversy over the past 15 years, with numerous complaints of gross misconduct being lodged against him at the Judicial Service Commission.

On Friday, Lunga Mtshali, spokesperson for Dlamini-Zuma, issued a statement saying they rejected “misleading public comments by Batsa” that the government had caused a delay in the matter.

“The comments attributed to Batsa’s spokesperson in the media to the effect that the government is the cause of the delay in the hearing are inexplicable, and are incorrect. It was the Judge President alone who decided the matter should be heard in early August. The Judge President took that decision [on Thursday] morning before the State Attorney had raised the issue of the new matter in the applicants’ replying papers. The Judge President affirmed that decision [on Friday] morning after considering representations from both Batsa’s attorneys and the State Attorney.”

Batsa issued a statement on Friday describing as “worrying” and “inexplicable” the decision not to consider the urgent application to lift the tobacco sales ban during this legal term. The company said this will cost SA more than R1.4bn and thousands of jobs.

“This delaying of justice and a resolution of this issue is inexplicable. By the time the case is heard, the ban will have been in place for four-and-a-half months, during which time billions of illegal cigarettes would have been sold.

“Thousands of jobs stand to be lost in the economy as criminality becomes the new normal. We are considering all our legal options and will be liaising directly with the government, as we both had previously agreed that the matter was urgent and needed to be heard on Tuesday,” said Batsa spokesperson Johnny Moloto.

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