SA parents likely won’t get jail for kids with no masks – but shops should kick them out

Business Insider SA
Covid-19 face mask children Level 3 lockdown
(Getty Images)
  • Not wearing a face mask in public after a law-enforcement warning, is now a criminal offence in South Africa.
  • That rule may, technically, cover infants and toddlers too, though it won't mater in practice.
  • Children under 12 can not be arrested, and parents can’t be prosecuted for failing to force their kids to wear face masks.
  • But private establishments like shopping centres and restaurants should deny access to anybody who refuses a mask – including very young children.
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Failing to wear a mask in public after a warning from a law enforcement official can now be a criminal offence in South Africa – including, in theory, for children.

Practically speaking, that won't see either kids or parents go to jail. But shops should kick out anyone who refuses to put in a mask, including infants.

The rules for the newly adjusted Level 3 are clear: all persons entering a public space are required to wear a face mask. Failure to do so can ultimately result in fines ranging from R1,000 to up to six months in prison, or both, plus a criminal record.

And there is no waiver based on age.

But the Child Justice Amendment Act is also clear: people under the age of 12 lack criminal capacity, and so can not ordinarily be arrested or prosecuted through the criminal justice system. Nor, as things stand, can parents be held responsible if, say, a three-year-old yanks off a mask in a shopping centre.

“I don’t think parents will be held liable for failing to mask their children… For that to happen, government would have to issue an amendment. Unless there is an express regulation to explain that a parent can be held criminally liable if they don’t mask their children, I don’t see a successful prosecution,” says attorney Tracey Lomax-Nixon.

There is also help to be had from the closest thing to detailed rules around masks and children in South Africa, in the form of early childhood development (ECD) guidelines. Intended to guide schools and child centres – and so not directly applicable to restaurants or the like – those held that no child under two would be required to wear a face mask, while children between the ages of two and five should only be encouraged to wear face masks.

That may not help the manager of a shop or other public place, though, and the responsibility placed on them could see recalcitrant children kicked out.

While individuals have a responsibility to wear masks, people in charge of public places have a separate duty to prevent entry for anyone without a mask.

“What the regulations say is that shopkeepers may not allow people into the establishment if they are not wearing a mask [and] there’s no age limit on that,” says Lomax-Nixon. “So, shopkeepers are obliged to deny access to families if the children are not wearing masks [and] a shop keeper could be prosecuted if he did allow it, because of the wording of the regulations.”

The issue of forcing young children to wear masks is contentious, admits Lomax-Nixon. The WHO advises against masks for children under the age of five, and proposes a carefully considered risk-based approach for children between the ages of six and 12.

“Children with severe cognitive or respiratory impairments who have difficulties tolerating a mask should, under no circumstances, be required to wear masks,” the WHO adds.

Business Insider South Africa approached the department of health for comment on the issue of mandatory face masks and its implication on children. It had not responded by the time of publication.

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