EXPLAINER | Is not wearing a mask a criminal offence?

  • Many people interpreted that not wearing a mask is now a criminal offence, after Justice Minister Ronald Lamola announced new measures around it. 
  • Three law experts, however, say only people who are responsible for premises can be prosecuted if they allow people to enter without masks.
  • People can be denied access if they do not wear masks. 

Confusion arose on Monday when Justice Minister Ronald Lamola announced new measures around the wearing of masks in public, with many people interpreting that not wearing one is now a criminal offence.

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However, the minister said the onus to ensure that everyone wears a mask has been placed on the shoulders of store managers, building owners and managers, and not on individuals.

They can be criminally charged if they allow anyone into their premises without wearing a masks, he said. 

Three South African legal experts agree that South African citizens cannot be criminally charged for not wearing a mask under the amended regulations.

However, entry to buildings or stores can be denied to those who do not wear masks.

News24 found out whether it is a criminal offence to not wear a mask, who will be held responsible and under what circumstances people are not required to wear mask.

Is the non-wearing of masks a criminal offence? 

In his blog Constitutionally Speaking, University of Cape Town constitutional law expert Pierre de Vos wrote that the new regulations still did not criminalise an individual's failure to wear a mask in public.

However, under the new regulations, the obligation was on a driver or operator of any form of public transport, a manager or owner of a building, an employer, and a school principal to ensure that anyone entering the spaces over which they have authority wears a mask. 

Speaking to News24, De Vos said it would only be a criminal offence for building managers, etc, to allow people into their spaces when they are not wearing masks.

"Think of it like any other rule you regularly obey without a criminal sanction attached. Like the rule against loud noise in a library, or a rule of the body corporate that disallows large dogs in the complex," De Vos said. 

University of the Western Cape law lecturer Cherith Sanger told News24 that South African criminal law required that any law should specifically state that the relevant conduct constitutes a crime, and what the parameters of the punishment for the crime are. The regulations on mask-wearing don't. 

This means that because it is not stipulated as a criminal offence, it is just a rule someone needs to obey and an individual cannot be charged for not complying.

Who can be prosecuted if someone does not wear a mask? 

North-West University law professor Elmien du Plessis said it was a criminal offence if someone, such as a driver or operator of public transport, manager or owner of a building, employer, or principal, did not ensure people entering or using their premises wore a mask because the amended regulations made it explicitly compulsory for people to wear masks that cover their noses and mouths in public places.

De Vos said if those responsible for ensuring mask-wearing, failed to do so, they could be fined or imprisoned for a period not exceeding six months, or both.

When will someone be allowed to not wear a mask? 

De Vos said public places included work places, funerals, parks, churches, casinos and supermarkets.

De Vos said:

The only place you are not required to wear a mask is in a private place.

De Vos said the amended regulations also allowed people who engaged in vigorous exercise to remove their masks, but as soon as they approach another person, they are required to put on a mask. 

Sanger added that the amended regulations stated that the health minister was responsible for defining what "vigorous" exercise was.

"A person who removes her or his mask whilst engaging in 'vigorous' exercise will be required to practise social distancing of at least three metres with any other person," Sanger said.

* This article has been updated to clarify Justice Minister Ronald Lamola's comments on Monday. 

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