As announced by President Cyril Ramaphosa on 12 July 2020, the Regulations issued in terms of Section 27(2) of the Disaster Management Act 2002 were recently amended. These amendments re-imposed the nightly curfew and a ban on alcohol sales. The Regulations also confirmed that the wearing of face masks in public is mandatory for everyone. However, the issue as to whether or not a person can face criminal sanction for failing to do so remains unexplored.
The Regulations require all people venturing into a public place to wear a cloth face mask or comparable appropriate item which covers both the nose and mouth (referred to hereinafter generally as a mask). The only exception provided for is anyone undertaking “vigorous” exercise in a public place who must then practise social distancing of 3 metres. At the time of writing, what is considered to be vigorous exercise is yet to be determined by the Cabinet member responsible for health. The Regulations expressly forbid the use or operation of public transport, as well as the entering of any building used by the public, without wearing a mask.
Furthermore, the Regulations place an obligation on employers, school principals, managers or owners of buildings, and public transport drivers or operators to ensure that their employees, students, visitors or passengers respectively are complying with the requirement to wear a mask. It is a criminal offence for these persons to fail to take reasonable steps to ensure compliance and such failure may result in a fine or imprisonment for them.
The Regulations stop short of similarly imposing criminal sanction for the failure of a member of the public to wear a mask in a public place. Even so, failing to wear a mask is unlawful as it is conduct contrary to a provision of the Regulations made in terms of the abovementioned legislation. Though there are no criminal consequences as yet for failing to wear a mask in public, it must be borne in mind that unlawful conduct (even if it cannot attract criminal sanction) can result in liability if any contravention of the Regulations causes harm to another person.
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This article is not intended to provide legal advice; it is for information purposes only and to provide a general understanding of the law. It is advisable that advice relating to the specific circumstances of your matter be sought from an attorney before acting upon the content of this article. This article is written at a particular point in time and accordingly may not always reflect the most current legal developments, legislation and/or judgments which may be applicable from time to time. The author and/or Rushmere Noach Incorporated are not responsible for any conduct taken contrary to that which is disclaimed herein.