Minister of Cooperative Governance and Traditional Affairs and Another v British American Tobacco South Africa (Pty) Ltd and Others

Following the declaration of a national state of disaster due to the COVID-19 pandemic, the Minister of Cooperative Governance and Traditional Affairs promulgated regulations under s 27 of the Disaster Management Act 57 of 2002. Regulation 45 prohibited the sale of tobacco products, e-cigarettes and related products during Alert Level 3 of the lockdown. The respondents, representing participants across the tobacco value chain (farmers, manufacturers, retailers and consumers), challenged the regulation in the Western Cape High Court as unconstitutional. They alleged that the ban infringed several constitutional rights and was not rationally connected to reducing the strain on the health system. The High Court declared Regulation 45 unconstitutional and invalid. The Minister and the President appealed that finding to the Supreme Court of Appeal, while the respondents cross-appealed on costs.

The appeal was dismissed with costs, including the costs of two counsel. The cross-appeal on costs was upheld. Paragraph 224.2 of the High Court order was set aside and replaced with an order that the first and second respondents (the Minister and the President) pay the applicants’ costs, including costs of two counsel and qualifying expert witness expenses.

This case is a leading authority on constitutional scrutiny of disaster regulations during states of emergency in South Africa. It affirms that even during national crises such as the COVID-19 pandemic, executive action must comply with the Constitution and be properly justified under s 36. The judgment reinforces the requirement that limitations on fundamental rights must be evidence-based, proportionate, and authorised by statute, and it constrains the scope of executive power under the Disaster Management Act.