Should government be worried if its ban on the sale of cigarettes and tobacco products under the hard lockdown is ultimately found by the courts to be unlawful? Could the state face a claim for damages?
Tobacco companies and suppliers lost income during the early stages of the lockdown, which raises questions about the potential for future damages claims.
The answer, according to one legal expert, is “no”.
On Monday, government applied for leave to appeal against a high court decision in December which found that Regulation 45, used by government to effect the ban, could not stand up to constitutional scrutiny.
“The powers under section 27 of the Disaster Management Act are discretionary. In order for someone to sustain a valid claim against the government, it would be necessary to prove the discretion was exercised maliciously,” said Fluxmans Attorneys director of litigation Saul Shoot.