15th Floor, Convention Tower

Heerengracht, Foreshore
Minister Dlamini-Zuma Cape Town, 8001

PO Box 3667, Cape Town

8000, South Africa
cc: Minister of Police Docex 34 Cape Town

T +27 21 431 7000

And Minister of Defence F +27 21 431 8000

www.webberwentzel.com
And Minister of Trade and Industry

And: The State Attorney

Your reference Our reference Date

M Evans / 3040563 30 April 2020

Dear Minister Dlamini-Zuma

Our client: British American Tobacco South Africa (Pty) Ltd

1. We act on behalf of British American Tobacco South Africa, the largest manufacturer in
South Africa of tobacco products.

2. Our instructions are as follows:

2.1 On Friday 24 April 2020, the State President announced that, at the end of the
second lockdown period ending on 30 April 2020, the sale of tobacco products
would be permitted.

2.2 Having been prohibited from selling tobacco products and vaping products from the
commencement of the lockdown, our client commenced preparing for the upliftment
of the prohibition. In a very short period of time, over 10 000 orders were received
from retailers wishing to sell tobacco products. The upliftment of the prohibition was

Letter To Minister Dlamini Zuma_20200430

Partners in office at Cape Town: Office Managing Partner: G Fitzmaurice Partners: RB Africa M Adderley AE Bennett AR Bowley SJ Chong
KM Colman R Cruywagen MA Diemont HJ du Preez LF Egypt AE Esterhuizen MJR Evans C Gabriel OH Geldenhuys S Hockey PM Holloway SJ Hutton
AV Ismail S Jooste LA Kahn ACR Katzke A Keyser CS Meyer LE Mostert RA Nelson A October K Rew H Samsodien J Smit RS Smith PZ Vanda
DM Visagie AWR Westwood

Senior Partner: JC Els Managing Partner: SJ Hutton Partners: BW Abraham RB Africa M Adderley NG Alp RL Appelbaum DC Bayman
KL Beilings AE Bennett T Blackbeard AP Blair DHL Booysen AR Bowley J Braum MS Burger M Bux RI Carrim T Cassim SJ Chong C Collett
KL Collier KM Colman KE Coster K Couzyn DB Cron PA Crosland R Cruywagen JH Davies PM Daya L de Bruyn PU Dela M Denenga DW de Villiers
BEC Dickinson MA Diemont DA Dingley G Driver W Drue HJ du Preez CP du Toit SK Edmundson LF Egypt KH Eiser AE Esterhuizen MJR Evans
K Fazel AA Felekis G Fitzmaurice JB Forman C Gabriel KL Gawith OH Geldenhuys MM Gibson CI Gouws PD Grealy S Haroun JM Harvey
MH Hathorn JS Henning KR Hillis Z Hlophe S Hockey CM Holfeld PM Holloway AV Ismail ME Jarvis CA Jennings JC Jones CM Jonker S Jooste
LA Kahn ACR Katzke M Kennedy A Keyser MD Kota JC Kraamwinkel M Kyle J Lamb E Louw M Mahlangu V Mannar L Marais MC McIntosh
SJ McKenzie CS Meyer AJ Mills D Milo NP Mngomezulu M Moloi LE Mostert VM Movshovich RA Nelson G Niven ZN Ntshona M Nxumalo
AN Nyatsumba A October L Odendaal GJP Olivier N Paige AMT Pardini AS Parry S Patel GR Penfold SE Phajane M Philippides BA Phillips MA Phillips
D Ramjettan GI Rapson K Rew SA Ritchie NJA Robb G Sader M Sader H Samsodien JW Scholtz KE Shepherd AJ Simpson N Singh N Singh-
Nogueira P Singh S Sithole J Smit RS Smith MP Spalding PS Stein MW Straeuli LJ Swaine Z Swanepoel A Thakor T Theessen TK Thekiso
C Theodosiou R Tlhavani G Truter PZ Vanda SE van der Meulen JP van der Poel CS Vanmali JE Veeran B Versfeld MG Versfeld TA Versfeld
DM Visagie EME Warmington J Watson AWR Westwood RH Wilson M Yudaken Chief Operating Officer: SA Boyd
 Page 2

celebrated not only by our client, but by retailers and consumers throughout the
country.

2.3 Prior to the statement by the State President on 24 April 2020, our client wrote to a
number of Ministers relevant to their industry, including the President, suggesting a
very reasonable approach regarding the upliftment of the prohibition on the sale of
tobacco and vaping products. They suggested a staged approach in terms of which,
at the first stage, the sale would only be permitted at retailers selling other essential
goods and only on the understanding that tobacco products would be purchased
together with other essential goods. This was to ensure that the sale of tobacco
products did not increase congestion in any way.

2.4 Subsequent to the State President's announcement, our client responded to the
invitation to submit comments on the proposed regulations for Level 4 of the
lockdown period. They made a similar reasonable proposal regarding the upliftment
of the prohibition.

2.5 On the evening of 29 April 2020, one day ahead of the move to Level 4, you
announced that the upliftment of the prohibition on the sale of tobacco and vaping
products had been reversed, and that the prohibition would be retained during the
Level 4 period. At no stage was our client or anyone else given the opportunity to
comment on the proposed retention of the prohibition. All those in favour of the
upliftment of the prohibition would have seen it unnecessary to comment given the
very affirmative and positive statement made by the State President.

2.6 In the course of your address to the nation, you stated that the decision to reverse
the upliftment of the prohibition was based on two thousand submissions you
received from the public questioning the upliftment of the prohibition. These 2000
submissions were amongst 70 000 you received with regard to the proposed Level 4
regulations.

3. Our client has been severely prejudiced by the prohibition on the sale of tobacco and
vaping products. This prejudice has been significantly enhanced by the complete about
turn made by you regarding the lifting of the prohibition.

4. In the light of the above, our client has instructed us to demand, as we hereby do, that you
immediately amend the latest version of the Regulations promulgated in terms of the
Disaster Management Act, 2002 ("the Act") (being those dated 29 April 2020 published in
 Page 3

Government Gazette No 43258 of the same date), by the deletion of paragraph 27 in

terms of which the sale of tobacco, tobacco products, e-cigarettes and related products is
prohibited, and including them as permitted goods in Part E of Table 1.

5. If we do not receive confirmation from you by 10h00 on Monday 4 May 2020 that
Regulation 27 will be reversed and the items included in Part E of Table 1, our instructions
are to bring an urgent application for the review and setting aside of Regulation 27, on the
grounds that it is unlawful and irregular inter alia for the following reasons:

5.1 it is ultra vires the Act;

5.2 it is unreasonable;

5.3 it was included in the Regulations for an ulterior purpose; and

5.4 it was re-introduced into the Regulations without following a procedurally fair
process.

6. We trust that you will give the assurance that we have requested on behalf of our client
failing which our instructions are to launch the application without further notice or
demand.

Yours faithfully

WEBBER WENTZEL
Michael Evans
Partner
Direct tel: +27 21 431 7260
Direct fax: +27214318260
Email: [email protected]

Letter sent electronically. A signed copy will be provided on request.