Failing to wear a mask in a public place is in contravention of regulation 5 of the Disaster Management Act and transgressors may be fined or arrested. It is not however a criminal offence. Sharon Hoosen, the DA spokesperson on Transport, had written to Provincial Police Commissioner Lieutenant-General Khombinkosi Jula seeking clarity on the wearing of masks after residents were fined or arrested. Hoosen stated that the regulation did not use words such as “is guilty of an offence” or “commits an offence” and there was no penalty for non-compliance. She said her letter was prompted by a number of queries from residents wanting to understand the regulations surrounding the wearing of masks and why citizens were being arrested. A number of cases was identified where residents were compliant with regulations but was still arrested, in KwaDukuza.
Sipho Mkhize, the Municipal spokesperson said they were not arresting residents for not wearing masks but were enforcing that it was compulsory that everyone had to wear a mask when leaving the house, as directed by the President. Hoosen said she wanted to ensure that people understood their rights and did not have a criminal record for these types of offences. She also asked the police to familiarise themselves with the regulation and compliance terms. “I raised it with the police commissioner, that the communication – right down to ground level – was clearly lacking and they needed to find a way to ensure that SAPS understood the regulations properly so that there were no more irregular arrests happening on the ground, especially at roadblocks,” she said.
Hoosen also received a communication from a deputy provincial commissioner in Limpopo who she said had clarified the regulation. According to Hoosen the commissioner “broke it down quite nicely” and explained which of the contraventions were criminal offences, which would reflect as a criminal record as an arrest, and which was just offence. “Further, we learnt that people were actually being fined for not wearing a mask. It now confirms that not wearing a mask is not a criminal offence, so you can’t be charged or arrested for it, but you have to comply in terms of the regulation,” said Hoosen.
“We have now confirmed that those regulations will now filter down to the ground level where people will not be arrested or fined for those contraventions, as stipulated in the letter.”