The Fair-Trade Independent Tobacco Association (FITA) has asked for urgent leave to appeal to the Supreme Court of Appeal the high court's dismissal of its challenge to South Africa's 100-day-old ban on cigarette sales.

FITA in its application said the North Gauteng High Court erred in interpretation of the threshold for concept of necessity in the Disaster Management Act in terms of which the government declared a state of disaster in response to the Covid-19 pandemic.

It should, FITA said in its papers, have found that the test was whether something was "absolutely necessary".

The court also erred in its application of the rationality test, which goes towards whether imposing a ban on cigarette sales was rationally linked to the purpose for which the government promulgated regulations in terms of section 27 of the act.

A full bench of the high court in Pretoria held that rationality was not a particularly stringent test and that it had been satisfied by Co-operative Governance Minister Nkosazana Dlamini-Zuma in her reasoning for prohibiting the sale of tobacco products.

"The question before the Court is rather, having regard to the evidence considered and relied on by the minister, could it be said that there is enough to conclude that the prohibition placed on the sale of tobacco products is justified?" the judges held.

"In our view the answer is clearly in the affirmative."

Lawyers for the minister argued that, based on the available scientific research, the government imposed the ban to prevent hospitals being overrun with smokers who presented with severe Covid-19 symptoms.

FITA disputed the scientific evidence and has done so again in its application for leave to appeal, but argued that to a large extent it was irrelevant because the rational foundation for the minister's actions fell away unless it was proven that people had stopped smoking en masse as a result of the prohibition on cigarettes.

"The Court erred in not finding that the ban in the regulations is based on the fundamental false premise that if a certain number of people are prevented from gaining access to cigarettes and tobacco products for a limited period of time they will cease to be 'smokers'," the association said.

It is challenging the judgment in its entirety, including the cost order imposed by the court.

FITA said it was challenging the decision to award costs against it because the State expressly did not seek a cost order on the basis that the case was in the public interest.