NEWS & ANALYSIS

Govt rejects misleading public comments by BAT SA

Does not have control over scheduling of court hearings, and did not attempt to exercise any such control

Government rejects misleading public comments by British American Tobacco South Africa

26 June 2020

Government has noted with concern media statements attributed to the British American Tobacco South Africa (BATSA) to the effect that government has caused a delay in the hearing of its challenge to the ban on sales of tobacco products during Alert Level 3 of the Covid-19 national state of disaster.

The relevant facts are as follows:

After BATSA brought the challenge in early June 2020, the parties and the Western Cape High Court Judge to whom it was initially allocated agreed it would be heard on 24 June.

Following further discussions, the parties agreed to request the Judge that she ask the Judge President of the Western Cape High Court to allocate the matter to a Full Court of three judges and schedule the hearing for Monday 29 June and, if necessary, Tuesday 30 June.

On 16 June the government served its answering papers.

On 17 June the Judge President directed that the matter will be heard before three Judges in the first week of August.

On 18 June the State Attorney wrote to the Judge President requesting that he reconsider the hearing date and, if possible, enrol the matter for hearing by a Court constituted by three or two Judges in the first week of the upcoming court vacation (starting on Monday 29 June) or, if necessary, in the preceding week on Thursday 25 or Friday 26 June.

On 19 June BATSA’s attorneys wrote to the Judge President requesting that if three or two Judges were not available in late June, the matter be heard by a single Judge; and, further, requesting a meeting with the Judge President.

On Tuesday 23 June the Judge President reverted, saying, simply, there was no need for a meeting and the parties should agree a date.

On 23 June, shortly after receiving the Judge President’s response, the parties agreed that the matter should go ahead on 30 June and BATSA’s attorneys wrote a letter to the Judge President informing him of that.

On Wednesday afternoon 24 June BATSA delivered its replying papers, which contain substantial new matter, including affidavits from two new experts.  BATSA did not forewarn the government that its new papers would contain new matter, e.g. an affidavit by a fresh medical expert relying on, amongst other things, medical literature published before BATSA instituted its challenge in early June.

On Thursday morning 25 June, before any of the parties had communicated further with the Judge President, his office responded to BATSA’s attorneys’ letter of 23 June, saying: “At the direction of the Judge President this matter can only be heard next term after Full Bench Appeals, i.e. after 4 August 2020”.

Within minutes of receiving that directive, and without first consulting the State Attorney, BATSA’s attorneys wrote to the Judge President requesting that the matter nevertheless be heard on 30 June.

Shortly thereafter, the State Attorney informed BATSA’s attorneys and the Judge President of the following:

the government had received BATSA’s replying papers the previous afternoon;

the replying papers contain substantial new matter, including affidavits from two new experts;

the government will be considering the new matter and its ramifications and will suggest a way forward as soon as practically possible;

in the circumstances, it is most unlikely that the matter will be ripe for hearing on 30 June; and,

consequently, the government no longer supports a hearing on that date.  The State Attorney’s letter to the Judge President concluded with a request that, given the urgency and importance of the matter, it be heard on 5 and 6 August.

On 26 June the Judge President directed that the matter will be heard on 5 and 6 August by a Full Court of three judges comprising Justices Ndita, Steyn and Slingers.

As the sequence of events shows:

After considering requests from both BATSA and the government that the matter be heard before the High Court recess starting on Monday 29 June or at the beginning of the recess, yesterday, 25 June, the Judge President decided that it could only be heard in the coming court term after 4 August.

The government acceded to that request because BATSA’s replying papers delivered the previous afternoon, 24 June, contained substantial new matter, which means it is most unlikely that the matter will be ripe for hearing on 30 June.

The government however added that in view of the urgency and importance of the matter it should be heard immediately after 4 August.

BATSA persisted with its request that the matter be heard on 30 June.

The Judge President rejected BATSA’s request, set the matter down for hearing on 5 and 6 August and assigned three Judges to hear it.

Government does not have control over the scheduling of court hearings, and it did not attempt to exercise any such control in this case.

BATSA’s issuing of a media statement yesterday implying that the matter would be heard on 30 June, was unfortunate because, by then, the Judge President had directed that it would be heard after 4 August.  BATSA’s media statement caused the media to report, incorrectly, that the matter would be heard on 30 June.

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

Issued by Lungi Mtshali, Spokesperson for Minister Dlamini Zuma, 26 June 2020