Govt quietly made not wearing a mask a direct criminal act – ‘reluctantly’, says NDZ

Business Insider SA
Nkosazana Dlamini Zuma
Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini Zuma. (GCIS)
  • Stepping into public without a mask on became a directly criminal offence in South Africa on 1 February.
  • Previously, a law enforcement official had to issue an instruction to put on a mask, and be ignored, for criminal sanctions to kick in.
  • The change came in a subtle update to lockdown rules – and went unannounced.
  • The government had been “very reluctant” to go that far, but public behaviour had forced the matter, said co-operative governance and traditional affairs minister Nkosazana Dlamini Zuma.
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As of 1 February, failing to wear a mask in public is a direct criminal offence in South Africa, which could come with up to six months in jail.

That represents a significant escalation in the seriousness with which mask-wearing is treated in SA, so much so that the government did not want to take the step, according to co-operative governance and traditional affairs minister Nkosazana Dlamini Zuma.

Yet the change was through such a subtle update to disaster regulations that it went unnoticed, and it went unannounced until Dlamini Zuma filed an affidavit to argue that a restriction on the sale of alcohol had been necessary.

At the same time, it merely implements what President Cyril Ramaphosa had announced as fact in the last days of 2020.

Under a regulation numbered 34(2), it had previously been a criminal offence only to fail to put on a mask after being told to do so by an "enforcement officer". Not complying with such a "verbal instruction" – rather than just the act of not wearing a mask in the first place – was declared an offence that could come with a fine or up to six months in jail.

On 1 February, Dlamini Zuma published an 8-page update to lockdown rules that reopened beaches, lifted the prohibition on alcohol, and adjusted curfew slightly.

It also contained just a few characters that, while not actually mentioning masks, changed their legal status.

The clause that made not wearing a mask a direct c

Regulation 34(2), or failure to comply with an instruction to put on a mask, remains a criminal offence. But added to that was regulation 34(3), which holds that nobody may be on public transport, enter any premises "used by the public to obtain goods or services", or "be in any public open space".

Up to that point, 34(3) had no sanction attached to it, and the effect was to criminalise not having a face covering.

That appeared to be the plan. On 28 December, Ramaphosa told the nation that "[a] person who does not wear a cloth mask covering over the nose and mouth in a public place will be committing an offence". However, the actual regulations published by his administration did not go that far – until 1 February.

One day after the new rules were published to and came into immediate force, Dlamini Zuma told a court how hard it is to get people to change their behaviour.

“For example, something as simple as wearing a mask in public was regularly and repeatedly not adhered to, so much so that the most recent regulations – and after several months of pleading with the public and social media campaigns – have now made it a criminal offence not to wear a mask in public, a step that government had been very reluctant to take but which, based on public behaviour and in the greater public interest, it was forced to do."

Dlamini Zuma was arguing against an application by South African Breweries (SAB) that the ban on the sale of alcohol should be declared to have been unlawful. 

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