AfriForum: Children under 10 should not be arrested, prosecuted for not wearing masks in public
Pretoria - Children under the age of 10 should not be subjected to criminal prosecution if they do not wear a face mask in public, lobby group AfriForum has argued.
It has sent a letter to Minister of Co-operative Governance and Traditional Affairs Nkosazana Dlamini Zuma in which it calls for an amendment to the adjusted level 3 regulations in order to protect young children from possible wrongful arrest and prosecution should they not wear a mask.
Regulation 34 of the regulations makes it compulsory for every person older than the age of 6 to wear a mask which covers the nose as well as the mouth in public. It 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 offence and may face a fine, imprisonment or both.
In its letter to Dlamini Zuma, the organisation emphasises the fact that article 7 of the Child Justice Act specifically stipulates that a child younger than 10 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 10 being arrested for contravening the regulations,” said Marnus Kamfer, legal and risk manager for community safety.
In his December 29 address, President Cyril Ramaphosa announced that the wearing of masks was being made compulsory “and if you fail to comply, you will be committing a criminal offence”.
Minister of Police Bheki Cele recently announced that 7 000 people had been arrested for not wearing masks.
Kamfer said that members of law enforcement authorities had “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 10 years be affected directly,” Kamfer said.
In its letter to Dlamini Zuma, AfriForum asked that the regulations be alligned with the fact that children under 10 do not have criminal capacity.
This leaves a challenge in dealing with children between the ages of 6 and 10 who are not wearing a mask in public and are technically criminally liable in terms of an infringement of the regulations.
AfriForum proposed the regulation should read: “The wearing of a face mask is mandatory for every person when in a public place, excluding a child under the age of 10.”