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Op-ed: Mask-less Premier should have been charged

- Stanley Malematja

Failure to wear a mask in public is an offence under the current regulations governing adjusted lockdown alert level three

The recent death of Minister Jackson Mthembu touched a soft spot for a lot of people in South Africa. Yet, following the political giant’s funeral, it was the hashtag #ArrestRefilweMtsweni that topped the trends on Twitter. Photos and videos posted under the hashtag revealed Refilwe Mtsweni-Tsipane, the Premier of Mpumalanga, blatantly failing to wear a mask at Mthembu’s funeral – something that is clearly against the lockdown regulations which are intended to stop the spread of COVID-19.

On the day of the funeral, the Premier appeared without a face mask and proceeded to walk up to a podium to give a speech honouring Mthembu. Upon its conclusion, she even appeared to be alerted by Deputy President David Mabuza, through a hand gesture, to put on a face mask. Instead, the Premier was captured waving at and even hugging a law enforcement officer before walking away with big, uncovered smile. One may argue that if the enforcement of the regulations were consistent, the Premier should have been arrested rather than hugged.

The Premier’s conduct and the police’s failure to enforce the regulations understandably caused public outrage. In fact, the funerals of ANC members or veterans are events where lockdown regulations have been contravened more than once. In June 2020, members of the South African National Defence Force were caught on camera with masks lowered and smoking cigarettes at the funeral of Rivonia Trialist, Andrew Mlangani. This was a period, remember, where the sale of cigarettes was prohibited, and the prohibition had been in place for over three months.

The Minister of Police, Bheki Cele, was later interviewed boasting that his personnel had arrested over 7,000 people for failing to wear face masks in recent weeks. The question is whether the Premier should not be added to this number. The Minister subsequently called for an investigation into the Premier’s behaviour, emphasising that anyone “who fails to comply with a verbal instruction by a law enforcement officer, to wear a mask, commits an offence”. The Minister is relying on section 34(2) of the regulations governing the adjusted lockdown alert level three which were in force at the time, and seems to be suggesting that an investigation is necessary to determine whether the Premier ignored an instruction.

It is possible that the Premier did not commit a crime in terms of regulation 34(2) of the adjusted level 3 regulations. Regulation 34(2) implies that if the person adheres to the verbal instruction and puts on the face mask, then the law enforcement officer has no reason to arrest. Nevertheless, a verbal instruction is not benchmark prerequisite for police to effect an arrest and lay charges against a person not wearing a face mask in public spaces. Instead of wasting already limited state resources conducting an investigation, the Premier can simply be charged in terms of regulation 34(3)(b) and (c) read with regulation 47(2) of the adjusted lockdown regulations.

Regulation 34(3)(b) and (c) prohibits a person from entering a building, place, premise or be in any public open space if such person is not wearing a face mask. Regulation 47(2) provides that “any person who fails to comply with or contravenes” regulation 34(3) commits an offence. In light of this, the Premier’s conduct is a crystal-clear statutory offence. Regulation 34(3) does not require to verbal warning by law enforcement officer as a prerequisite for committing an offence. The COGTA Ministry did not put all its eggs in one basket, so to speak, and this signifies the importance of wearing face mask in public or open spaces. Criminal charges for not wearing a face mask are not constrained by the requirement that a law enforcement officer must issue a verbal instruction.

In fact, law enforcement officers are fully aware that they are not strictly duty bound to verbally instruct a person to wear face mask before they can effect an arrest. It rather appears that there is preferential treatment to the people of South Africa. Political leaders in particular are treated with soft hands and civilians are treated harshly and consequently criminalised. Post the pandemic, the number of “criminals” in this country will skyrocket because of the inconsistent enforcement of the lockdown regulations and of course the failure to adhere by the regulations.

The Premier has since reportedly made a statement of guilt and accepted a fine

Stanley Malematja is the attorney in the Right2Protest Project based at CALS