AfriForum sent a letter on 21 January 2021 to Dr Nkosazana Dlamini-Zuma, Minister of Cooperative Governance and Traditional Affairs, in which the civil rights organisation demands the level 3 regulations – which were promulgated in the Government Gazette on 11 January 2021 – be amended to protect children younger than 10 years against possible wrongful criminal arrest and prosecution.
Regulation 34 of the regulations makes it compulsory for every person older than six years to wear a mask in public that covers the nose as well as the mouth. It also stipulates that any person who fails to adhere to the verbal order by a law enforcement officer to wear such a mask is guilty of an offense and may be imposed a fine, imprisonment or both.
In its letter to Dlamini-Zuma, the organisation emphasises the fact that article 7 of the Child Justice Act 75 of 2008 specifically stipulates that a child younger than ten years does not have criminal capacity and cannot be prosecuted for any criminal offence.
“It is worrisome that the regulations are in contravention of current legislation in this regard. It creates uncertainty in law enforcement officers who must enforce these regulations and may lead to children younger than ten years being arrested for contravening the regulations,” says Marnus Kamfer, Legal and Risk Manager for Community Safety at AfriForum.
Bheki Cele, Minister of Police, announced on 12 January 2021 that 7 000 people have already been arrested for not wearing masks.
“During the state of disaster, members of law enforcement authorities have repeatedly made themselves guilty of unlawful arrests of people who had allegedly contravened the regulations. Thoughtless, unclear regulations may cause these actions to increase and that children younger than ten years be affected directly. It seems that Cele suffers from an obsession to prosecute. It is unfortunate that the state, in its lust for power, even encroaches on the best interest of children,” Kamfer concludes.
AfriForum encourages parents to contact the organisation if their children who are younger than ten years have been arrested and/or are prosecuted in terms of these regulations.