The Supreme Court of Appeal (SCA) on Tuesday directed the government to file its response to the application by the Fair-Trade Independent Tobacco Association (Fita) for leave to appeal the high court ruling upholding the controversial ban on tobacco sales by the end of the week.
The court gave the government until Friday 3pm to file its answering affidavit.
Fita had pleaded for truncated dates in respect of filing papers, and by granting the request the court is agreeing that the application be treated on an urgent basis.
The tobacco association was given until the afternoon of August 11 to file its replying affidavit to the government's submissions.
It is expected that the SCA will then fairly rapidly reach a decision on whether it will entertain the appeal. However, if it grants leave to appeal, the matter is still only likely to be heard in November.
Fita last week petitioned the SCA directly after a full bench of the North Gauteng High Court dismissed its application for leave to appeal, with costs.
The high court in June rejected Fita's arguments that the ban on tobacco sales imposed on March 27 as South Africa went into lockdown in response to the Covid-19 pandemic was invalid, in part because brisk black market proved that the government's stated rationale that millions of South Africans would stop smoking was false.
The court found instead that Co-operative Governance Minister Nkosazana Dlamini-Zuma "took a properly considered rational decision" meant to help the state save lives, prevent the transmission of Covid-19 and minimise the strain on the health services when she gazetted the ban.
Fita is arguing that the unprecedented prohibition fell short of meeting the legal requirements of rationality and necessity and constitutes a case of executive overreach. In its application the association said the case was "overwhelmingly of national importance and interest and pertains to novel and critically import issues of both fact and law".
Dlamini-Zuma will this week be defending the prohibition against a parallel legal challenge by British American Tobacco in the Western Cape High Court.