In documents studied by a full bench of the North Gauteng High Court on Tuesday, the minister submitted that she did not set out to deceive the court when claiming that she had received 1,535 public submissions in support of the ongoing prohibition of cigarette sales.

"I note that there is significant repetition of public submissions in the record," the minister said in her answering affidavit to argument by the Fair-trade Independent Tobacco Association.

FITA is asking for a court ruling setting aside the ban that has been in place since 27 March.

The minister said in compiling a legal reply, officials in her department copied all emails sent to the address for public submissions on the matter, that included the words "smoker", "tobacco" and "smoking", "including misspellings" of these three terms.

"It appears that some emails were received more than once into the email account, or were accidentally printed more than once when the record was compiled. The repetition is a bona fide error," Dlamini-Zuma said.

She has been widely ridiculed for stating that there had been 1,535 petitions in favour of the ban before closer scrutiny showed that 47.2 percent of these were unrelated submissions, some 23 percent were in fact opposed to the ban and only 29 percent, or 454 submissions, supported or backed the ban she announced in late April that would remain in place indefinitely.

The misstatement has led to the official opposition Democratic Alliance (DA) lodging a complaint against the minister in terms of the Code of Ethical conduct for office bearers for misleading the public.

Argument in the matter will be heard on Wednesday. FITA is seeking an order setting aside the ban.

In court papers, the president of FITA, Sinenhlanhla Ngubeni, submitted that the minister was driven by ulterior motives in maintaining the ban of the sale of tobacco products when she announced on 23 April that it would apply to level 3 of the nationwide lockdown imposed in response to the global coronavirus pandemic.

Ngubeni said the arguments set out by Dlamini-Zuma in favour of a continued ban did not justify the excessive harm caused to employment in the sector, the loss of revenue to the state and the infringement on the rights of citizens that resulted because of it.

He disputed that within the relevant time frames, she could have engaged seriously with all submissions, literature and science on the matter and said her reliance on the documents she supplied to the court read rather as an attempt after the fact to find justification for the ban.

Ngubeni also argued that the minister demonstrated a "biased and irrational determination to ban smoking" and that she exceeded the ambit of emergency regulations to seek to prohibit tobacco smoking for as long as possible.

In doing so, he argued, she has also undermined the credibility of the noble cause of combatting a lethal virus.

The ban on the sale of cigarettes is also being challenged by British American Tobacco SA. Their application is set to be heard in the Cape Town High Court on 24 June.

African News Agency