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Can you be arrested for not wearing a face mask? The dangers of vague regulations


The lack of clarity around Level 4 regulations of the national Covid-19 lockdown has left much to interpretation as to whether people can be arrested and detained for contravening newly implemented laws.

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According to experts, this has led to a difference in how law enforcement has implemented these measures.

One example is the regulation concerning wearing masks in public. It does not specify whether not wearing a mask is an offence that warrants arrest and detention.

According to the regulations, a person must wear a face mask or an item that covers their nose and mouth when they are in a public, and no one is allowed to enter a public place if they are not wearing a mask.

Speaking to News24, national police spokesperson Brigadier Vishnu Naidoo, however, said that not wearing a mask is “currently not an offence therefore police cannot arrest for such a failure”.

READ | Just face it: No exercising or shopping without a mask

However, there is still uncertainty about aspects of some regulations which gives more power to law enforcement to determine how they implement this, according to Wayne Ncube, deputy director of Lawyers for Human Rights (LHR).

“Just because something is unlawful does not mean it should become a criminal offence and should lead to people being arrested,” Ncube explained.

“Our law enforcement in the country, obviously coming from the history that we have, has always been irregular, violent, classist and elitist (anti-poor). These regulations just give more scope for over-policing,” Ncube said.

He added that while there may be some cases of police being heavy-handed in more affluent areas, citizens have access to legal representation who can enforce their rights.

Moshohli Mailula, a resident of Alexandra in Johannesburg, told News24 that he was arrested on Saturday while on his way to the shop and alleged he was manhandled by law enforcement and arrested without being told why.

It was only at the police station that he was charged with failure to confine himself to his place of residence.

When he went to court for his trial on Tuesday, he was told he had missed his hearing and a warrant of arrest was issued.

Luckily, Mailula said he was able to prove that the police gave him a different court date and he was told his case would be withdrawn.

Indiscriminate interpretation

Mailula is just one such case.

Generally, the LHR says it has seen a worrying pattern in how the regulations are being enforced.

“[E]ven where people have been trying to or are seemingly complying with the rules, this added power to police has led to unnecessary violence, a lot of arrests and a lot of victimisation of people when they encounter [law enforcement],” Ncube said.

Ncube added that the vagueness of the regulations leaves it up to law enforcement to interpret its meaning.

“When someone is in a car driving and his mask is not fully on, that then becomes a matter for interpretation – whether or not that is someone who is technically outside in a public area.”

Johan Burger from the Institute for Security Studies’ (ISS) justice and violence prevention programme said he believes the issue is not so much that law enforcement acts spuriously in implementing regulations, but that there is confusion around the regulations.

READ | Lockdown: Slain Alexandra man’s case highlights failures of police and army watchdogs

He says law enforcement are not sufficiently briefed on the measures and how it should be interpreted.

“There are many complaints about the vagueness of some regulations and the risk of having the same regulation interpreted differently, such as is the case with face masks,” Burger said.

There is a chance that individuals in law enforcement “will act with malice and abuse their authority”, he said, adding this was evident by the number of complaints lodged against law enforcement.

However, he added, most law enforcement officials are trying to act within the law.

The difference in interpretation of the regulations is also due to “the confusing statements by some ministers and other senior officials,” Burger said.

“The best way to address this problem is to ensure that the regulations are drafted in a way that would avoid different interpretations and for senior officials to speak with one voice on these regulations,” Burger added.

Explanatory instructions

Naidoo said that police management and police legal services are briefed on the regulations. They then filter down information to police officials.

“Concise but clear explanatory instructions are provided to all operational units in the provinces,” Naidoo said.

These instructions spell out what is a criminal offence and brief officials on their mandate, leaving no room for interpretation.

“SAPS rely on its instructions referred to above to give guidance and to eliminate interpretation. Where officers are in doubt they liaise with Legal Services, nationally as well as provincially.”

As for the police acting inconsistently in some areas compared to others, Naidoo said this is not the case, but some people are more familiar with the regulations than others.

“The rules apply to all, irrespective of one’s status in life. One can, however, assume that certain persons may be more knowledgeable than others about the content and ambit of the regulations,” Naidoo said.

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