The North Gauteng High Court on Wednesday heard an application from the Fair-Trade Independent Tobacco Association (FITA) for leave to appeal against its earlier dismissal of the group's legal challenge to South Africa's ongoing ban on cigarette sales.
FITA chairperson Sinenhlanhla Mnguni said he expected the court to rule on the application next week.
The association has applied for leave to appeal directly to the Supreme Court of Appeal after a full bench of the high court, including Gauteng Judge President Dunstan Mlambo, dismissed its challenge to the ban, with costs.
The court ruled in favour of cooperative governance minister Nkosazana Dlamini-Zuma, widely regarded as the author of the prohibition, on almost every point of legal argument.
This included a contention that the ban was rational because a survey showed that a small minority of smokers had quit since it was imposed.
FITA had argued that the logical foundation for the ban, namely to prevent the health services being overwhelmed with smokers presenting with severe Covid-19 symptoms, fell away if the population had continued to procure and smoke tobacco.
A study presented to the court had indicated that 90 percent of smokers had carried on smoking since cigarette sales were outlawed on March 27 as part of the government's response to the global health pandemic.
South Africa is the only government to maintain a smoking ban in a stated bid to combat the disease.
FITA challenged the ban as irrational and therefore invalid. It argued in its bid for appeal that the court erred by holding that rationality is not a stringent test in law.
The tobacco ban is also being challenged by the country's biggest cigarette maker, British American Tobacco SA (BATSA). The Western Cape High Court has, to the chagrin of the tobacco industry, postponed that matter until early August, after the state's lawyers said it needed more time to respond to final affidavits submitted by BATSA.
This included an affidavit from a prominent British respiratory health expert who said that there was no sound medical evidence that smokers became more severely ill from Covid-19 but that recent studies rather suggested the opposite was true.
It is estimated that there up to seven-million smokers in South Africa.