Not wearing a mask? Your arrest is unlawful – ISS

Arresting people for not wearing a mask in public is unlawful as the recent lockdown level 4 regulations may prescribe wearing a mask in public, but do not outline a punishment or criminalise failure to adhere to it, the Institute for Security Studies says.

Thirty-two people were arrested at Jane Furse, Limpopo, on Tuesday afternoon for allegedly violating lockdown rules.

This was during a walkabout by the Sekhukhune executive mayor Keamotseng Stanley Ramaila and other local municipal mayors as members of the district command council.

The council, chaired by Ramaila, was inspecting compliance of level 4 lockdown regulations.

According to Section 5 of the regulations gazetted on 29 April, “a person must wear a cloth face mask or a homemade item that covers the nose and mouth when in a public place, or another appropriate item.

“No person will be allowed to use any form of public transport, or enter a building, place or premises, if they do not wear a cloth face mask or a homemade item that covers the nose and mouth when in a public place, or another appropriate item to cover the nose and mouth.”

But the regulations are vague and do not indicate that not abiding by them is a crime, says head of justice and violence prevention at the Institute for Security Studies, Gareth Newham.

“It appears in regulations but without the sanctions of not wearing. It doesn’t say you can be fined or sentenced if you are not wearing one. What that means is, if you get arrested for not wearing a mask, police don’t have a legal basis to charge you.

“For an arrest to be lawful, they have to have evidence that you broke a criminal Act. They can’t arrest you to punish you or because there is a regulation without a sanction. People arrested in that situation could open [a case of unlawful arrest],” he said.

Traffic police arrested three people for using non-alcohol-based hand sanitizer at their shop while the rest were arrested for walking in public spaces without wearing masks.

Ramaila said it was the youth that was “carelessly defiant” of the compulsory rule as all those arrested for not wearing a mask were young people.

“All elderly people we came across were wearing masks. Generally people are aware of the fact that it’s compulsory to wear a mask when in public spaces. We’re just dealing with a few young people who are carelessly defiant,” said Ramaila.

Trust in police is key – ISS

The South African Police Service’s main objective during the lockdown should be to build trust among the population to avoid rebelling and noncompliance from the public, said the Institute for Security Studies (ISS).

By the end of the initial 21-day lockdown, almost 107,000 cases were opened and 118,000 people were charged for contravening the lockdown regulations. Charges included liquor-related offences, failure to confine to place of residence and presenting deceitful statements.

Police are yet to release the latest statistics.

But South Africans should be properly educated to understand the regulations, rather than be threatened with arrest should they not comply, ISS head of justice and violence prevention Gareth Newham said.

“If law enforcement officials act in a way that undermines public trust, you will get resistance, and people will not listen. It makes the job more difficult and it makes it more dangerous to be a police officer because people will more likely attack police officers or be less likely to assist police officers who are attacked.

“As we move into this breakdown of public trust in the police, you get a great number of people breaking other laws and more incidents of public violence.”

The dos and don’ts of masks

In line with recommendations by the health department to wear a cloth face mask as a preventative measure against the coronavirus, the National Institute for Communicable Diseases has listed basic safety rules:

• Face masks should never be touched while wearing them.
• Do not lower the face mask when coughing or speaking.
• Do not touch the inner side of the face mask with hands.
• Face masks should cover the nose and mouth completely.
• Fabric masks should be washed with soap and water and ironed when dry.

There was no clear evidence that wearing a cloth face mask would be more beneficial than harmful, or whether prolonged wearing of a cloth face mask may increase the risk of coronavirus infections.

According to the guides drafted by Stellenbosch University’s Colleges of Medicine in South Africa, cloth masks and homemade masks or facial coverings cannot at this stage be recommended due to uncertainty of the evidence.

The Colleges of Medicine is an oversight body that sets standards of the quality of medical care in SA.

“There is moderate evidence that cloth masks increase the risk of acquiring infection compared to medical masks. The evidence for the effects of cloth masks compared to not wearing a mask remains unknown. Review of ecological studies on widespread use of cloth face masks versus not using any form of facial covering is still required,” said the drafted guide.

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