In her court papers, Dlamini-Zuma controversially argued that the economic damage from the cigarette ban was being partially mitigated by a flourishing illegal market - representing economic activity.

Joubert argues the Minister provided "no evidence" to show that smoking cessation for a limited period would reverse or reduce the risk of contracting a more severe form of Covid-19, adding that she admits, in her court papers, that due to the "newness" of the disease, there is not enough data to assess whether or to what extent the chance of infection or disease progression decreases upon quitting smoking.

Citing Morjaria's expertise, the papers argue that there is "no consensus" in relation to smoking being a risk factor for Covid-19 risk progression – rather, currently available data suggests that risk factors for severe Covid-19 include older age, male gender, medical comorbidities including cardiovascular diseases, diabetes, hypertension, increased body mass index (BMI), chronic kidney disease, solid organ transplants and chronic pulmonary diseases.

In the supporting documents outlining BATSA's economic arguments, a report by RBB tackles the studies referred to in Dlamini-Zuma's court papers, stating that the findings of a report by the Human Sciences Research Council (HSRC) – which said 12% of smokers were able to purchase cigarettes at the start of the lockdown – were a function of its timing.

Her papers had also stated that an increase in illicit trade would in itself boost economic activity:

RBB's response states: "In addition to growing exports, the [answering affidavit] suggests that suppliers can mitigate the harm suffered as a consequence in the decline of legitimate tobacco products by supplying the illicit market.