- Justice Minister Ronald Lamola said it was a criminal offence to not wear a mask in public.
- Three law experts, however, say only people who are responsible for premises can be prosecuted if they allow people to enter without masks.
- People can be denied access if they do not wear masks.
Justice Minister Ronald Lamola caused confusion on Monday when he said that not wearing a mask is a criminal offence under the amended Level 3 lockdown regulations.
LIVE | All the latest coronavirus and lockdown updates
But he added that the onus was on compliance officers – such as store managers, building owners and managers – to ensure everyone entering their premises wears a mask.
Three South African legal experts agree that South African citizens cannot be criminally charged for not wearing a mask under the amended regulations. However, entry to buildings or stores can be denied to those who do not wear masks.
North-West University law professor Elmien du Plessis told News24: “The problem comes in when the utterances made by ministers do not reflect what is stated in the regulations.”
“When the ministers say it is an offence when it is not, it can lead to confusion and a situation where the people who enforce the laws act on discretion or a misunderstanding of what the law is. This undermines the rule of law.”
News24 found out whether it is a criminal offence to not wear a mask, who will be held responsible and under what circumstances people are not required to wear mask.
Is the non-wearing of masks a criminal offence?
In his blog Constitutionally Speaking, University of Cape Town constitutional law expert Pierre de Vos wrote that the new regulations still did not criminalise an individual’s failure to wear a mask in public.
However, under the new regulations, the obligation was on a driver or operator of any form of public transport, a manager or owner of a building, an employer, and a school principal to ensure that anyone entering the spaces over which they have authority wears a mask.
Speaking to News24, De Vos said Lamola erred when he said not wearing a mask was a criminal offence because it would only be a criminal offence for building managers, etc, to allow people into their spaces when they are not wearing masks.
“Think of it like any other rule you regularly obey without a criminal sanction attached. Like the rule against loud noise in a library, or a rule of the body corporate that disallows large dogs in the complex,” De Vos said.
University of the Western Cape criminal law professor Cherith Sanger told News24 that South African criminal law required that any law should specifically state that the relevant conduct constitutes a crime, and what the parameters of the punishment for the crime are. The regulations on mask-wearing don’t.
This means that because it is not stipulated as a criminal offence, it is just a rule someone needs to obey and an individual cannot be charged for not complying.
Who can be prosecuted if someone does not wear a mask?
Du Plessis said it was a criminal offence if someone, such as a driver or operator of public transport, manager or owner of a building, employer, or principal, did not ensure people entering or using their premises wore a mask because the amended regulations made it explicitly compulsory for people to wear masks that cover their noses and mouths in public places.
De Vos said if those responsible for ensuring mask-wearing, failed to do so, they could be fined or imprisoned for a period not exceeding six months, or both.
When will someone be allowed to not wear a mask?
De Vos said public places included work places, funerals, parks, churches, casinos and supermarkets.
De Vos said:
The only place you are not required to wear a mask is in a private place.
De Vos said the amended regulations also allowed people who engaged in vigorous exercise to remove their masks, but as soon as they approach another person, they are required to put on a mask.
Sanger added that the amended regulations stated that the health minister was responsible for defining what “vigorous” exercise was.
“A person who removes her or his mask whilst engaging in ‘vigorous’ exercise will be required to practise social distancing of at least three metres with any other person,” Sanger said.
Stay healthy and entertained during the national lockdown. Sign up for our Lockdown Living newsletter. Sign up and manage your newsletters in the new News24 app by clicking on the Profile tab
