Wearing masks in South Africa – What is criminal, and who can be arrested

On Sunday President Cyril Ramaphosa announced that the wearing of cloth masks in public is now mandatory to reduce the rate of transmission of COVID-19.

Ramaphosa said it is important to enforce the wearing of masks, which is why the government has strengthened the regulations around the practice.

The new regulations clearly stipulate no person will be allowed to use, operate, perform any service on any form of public transport if they are not wearing a cloth mask.

People are also not allowed to enter or be in a building or any public open space if they are not wearing a mask.

In simple terms, the regulations require anyone – workers, learners, and travellers – to wear a cloth face mask, homemade face covering, or another appropriate item that covers the nose and mouth.

There is one exception – a person who undertakes vigorous exercise in a public place and maintains a distance of at least three metres from other people does not have to wear a mask.

Penalties for not adhering to the regulations

The regulations put the responsibility to ensure compliance on employers, public transport drivers, building owners and managers, and school principals.

Unless these people take reasonable steps to ensure compliance, they face a “fine or imprisonment for a period not exceeding six months or both such fine and imprisonment”.

Curiously, the person who does not wear a mask is less at risk of arrest and prosecution than the people in charge of the location they are in.

Minister of Justice and Correctional Services Ronald Lamola said the responsibility for people to wear masks currently lies with the compliance officer.

“It is that person [the compliance officer] who allowed someone to enter the building. So that is the person who will be arrested and prosecuted,” said Lamola.

He explained that the cabinet is reluctant to criminalise individuals not wearing masks because “there will be lots of people who will find themselves being criminalised”.

He warned that if there is still widescale non-compliance, the government will consider making it a criminal offence not to wear a mask in public.

Expert opinion

Daniel Pretorius
Daniel Pretorius

While the regulations give details on some of the legal requirements of wearing a cloth mask in public, there are still many questions regarding the issue.

To shed light on some of the most common questions, MyBroadband asked legal expert and Bowmans partner Daniel Pretorius for feedback.

The questions, with Pretorius’s feedback, are provided below.

Is it a criminal offence for a person to not wear a mask in a public open area, in a public building, or in public transport?

No.

If a person does not wear a mask in a public open space like a park or on the street, can they be arrested?

The new regulations do not specifically provide that somebody who does not wear a mask in a public space can be arrested.

However, depending on the circumstances (e.g. if there are many people congregated in a small space), it might be permissible for a law enforcement officer to arrest somebody not wearing a mask if there is reason to be believe that this endangering the lives of others.

It is unlikely this will occur in an open space.

If a person does not wear a mask in a shopping mall, who can be arrested?

The manager or owner of a building commits a criminal offence if they fail to take reasonable steps to ensure each person in their building is wearing an appropriate mask.

The manager or owner of the shopping mall can be arrested if he / she fails to take reasonable steps to ensure each person in their building is wearing an appropriate mask.

If an employee does not wear a mask in a building at their office, who can be arrested?

The manager or owner of the building, and the person’s employer, commit criminal offences if they fail to take reasonable steps to ensure each person in the building is wearing an appropriate mask.

The manager or owner of the building and / or the employer can be arrested if they do not take reasonable steps to ensure each person in their building is wearing an appropriate mask.

If a person does not wear a mask in a taxi or other public transport, who can be arrested?

The driver or operator of a taxi or another form of public transport can be arrested if they do not take reasonable steps to ensure that passengers wear the necessary face masks.

Must people wear a mask in their car when driving?

The regulations do not specifically address this issue.

With jobs where employees cannot perform their duties when wearing a mask, like a radio or TV news reporter, is there a way to apply for an exemption?

No.

Who will enforce these regulations at shopping malls, public areas, or office blocks?

The owner / manager / employer must enforce the regulations in the premises under their control. If they fail to do so, they can be arrested by law enforcement officers.


Interview with Minister of Justice and Correctional Services, Ronald Lamola


New regulations around wearing of masks


Now read: New level 3 lockdown rules – A list of what you can and cannot do

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Wearing masks in South Africa – What is criminal, and who can be arrested