Durban – People failing to wear a mask in a public place or when using public transport are contravening regulation 5 of the Disaster Management Act and may be fined or arrested, but it is not a criminal offence.
DA spokesperson on Transport, Sharon Hoosen, had written to Provincial Police Commissioner Lieutenant-General Khombinkosi Jula seeking clarity on the wearing of masks after residents were fined or arrested.
In the letter, 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.
These residents had also identified a number of cases where they were compliant with the regulations but were still arrested. The complaints came from a councillor from KwaDukuza.
Municipal spokesperson Sipho Mkhize 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 President Cyril Ramaphosa.
Hoosen wanted to ensure that people understood their rights and did not have a criminal record for these types of offences. She also urged 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,” said Hoosen.
She had also received communication from a deputy provincial commissioner in Limpopo who she said had clarified the regulation and “broke it down quite nicely”.
This regarded which of the contraventions were criminal offences, which would reflect as a criminal record as an arrest and which was just an offence but not a criminal offence.
“Further, we learnt that people were actually being fined for not wearing a mask. It now confirms that 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.”
Jula’s office said the legality regarding arrests for contravention of the disaster regulations, in particular the non-wearing of masks in public, had been filtered to grass-roots levels as per their head office letter dated May 4.
He said that evidence of this was the fact that no complaints have been received by the National Prosecuting Authority.
By Thobeka Ngema