Why Meshoe is unlikely to face arrest for refusing ‘infected’ Chinese test kits

African Christian Democratic Party leader Rev Kenneth Meshoe may not have contravened lockdown regulations with his claims that Covid-19 testing kits being used at government hospitals are contaminated, according to a legal expert.

Meshoe’s claims are similar to those made by Cape Town man Stephen Donald Birch, who appeared at the Cape Town Magistrates Court last week and was charged with a breach of the Disaster Management Regulations. He was released on a warning and will return to court on 14 July after sharing a video in which he cautioned people not to submit to testing, as the test kits themselves had supposedly been contaminated with the virus.

Birch faces up to six months in prison if convicted.

Richard Chemaly, director at Chemaly Attorneys Inc in Johannesburg, said that with regards to the spreading of fake news, the regulations are, however, very particular in requiring the element of intention, specifically intention to deceive. This fact may save Meshoe.

“Unlike in defamation matters where simply sharing a defamatory statement made by somebody else could land you in trouble, to be in trouble with regard to regulation 11(5) an investigating officer would need to find evidence of intent, not simply negligence,” Chemaly said.

Meshoe, who was expected to undergo a second test after he and his wife tested positive for the virus, told the SABC in an interview that he wouldn’t get tested in a government hospital because of reports that Chinese test kits being used by the state were contaminated. He said he would do his second test at a private laboratory and would not allow test kits from China to be used on him.

“When I go for the second test, I will go to a private lab and one of the reasons I chose to do that is because there are a lot of test kits from China in the country that is used by government. And I prefer to use test kits that are either manufactured in South Africa or another country because I have read many complaints from a number of nations, including Spain and the UK, saying test kits from China are contaminated,” Meshoe said.

Chemaly added that the implications of Meshoe’s statement would mostly be political, rather than legal, because “it appears to be safe to make decisions based on reports”.

If those reports happen to be lies then those publishing the report would be in the line of fire but again, intention is a requirement, and that may be difficult to prove.

“In terms of the public, who may have an expectation based on a generalised view of the law relating to fake news, if that expectation is not met, it would be wise for the government to explain the nuance, as difficult as it may be. Should the government not explain its test kits and how they function, they run the risk of being taken to court for an order seeking them to do so. Therefore it would be wise to give information upfront,” Chemaly said.

Attempts to get comment from Police Minister Bheki Cele on whether there were any plans to act against Meshoe for his statements for the last two days were fruitless. His acting spokesperson, Mathapelo Peters, read but ignored questions sent to her on the matter.

– ericn@citizen.co.za

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