25/05/2020
SOME LOCKDOWN REGULATIONS EXPLAINED
South Africans received the news last night that Level 3 of the Lockdown would apply from 1st June 2020 which is a relief to most of us as many of the restrictions imposed during levels 5 and 4 will be lifted or at least relaxed. A huge bonus for many of us will be the fact that we can enjoy our favourite drinks in our own homes as the liquor retailers will be open to the public, albeit for limited periods. The final regulations for Level 3 will be published soon and there has been a tendency in the past to deviate from the concessions made by the president in his address to the nation, which leaves many people a little nervous.
I attended a very interesting Webinar today hosted by the Mail & Guardian in collaboration with the Law Society of South Africa. The presenter, Michael Avery spoke to the two hosts, Advocate Mvuzo Notyesi and attorney William Booth, the well-known Cape Town criminal defence lawyer. The webinar opened with Mr Notyesi giving an introduction on various aspects of the lockdown, particularly from a constitutional perspective. Sadly his connection was lost fairly early in the webinar due to technical hitches and the webinar had to continue without him, which left William Booth to cover the most of the questions that were prepared for the webinar. Some interesting aspects of the law and the lockdown were discussed which answered many questions for those of us attending.
HOW MANY PEOPLE HAVE BEEN ARRESTED FOR BREAKING LOCKDOWN REGULATIONS?
230,000 people have been arrested for breach of lockdown. This is a serious problem. Mr Notyesi expressed his belief that the National Prosecuting Authority will not be able to cope with the prosecutions of 230,000 arrests.
WILL SOMEONE GET A CRIMINAL RECORD WHEN PAYING AN ADMISSION OF GUILT FINE FOR BREACHING A LOCKDOWN REGULATION?
WB: Yes they will. Usually the police arrest someone and then give them the “option” to pay an admission of guilt fine. In the case of lockdown regulations, the person arrested is not told of the fact that they will get a criminal record for paying an admission of guilt fine. This is a serious problem for the person who later applies for a job or a visa and only then discovers that they have a criminal record. The South African Police Service has a duty to inform the person arrested that they have a right to take the matter to court and to approach the prosecutor. Should the police stop someone it would be better for them to exercise their right to approach the prosecutor. The breach of lockdown often amounts to what would be regarded as a petty offence under normal circumstances. One can, and often does, manage to get the case withdrawn. The South African Police Service has been given directives that an arrest should only be a last resort. A simple warning or a Notice to attend court on a certain date will usually suffice. Remember, if you have paid an admission of guilt fine resulting in a criminal record, the Criminal Procedure Act makes provision for expungement of such record on application to court. Remember too, that one is entitled to sue the State (Minister of Police) for wrongful and unlawful arrest (and detention). If at all possible, it would be better, where possible, to institute your action against the actual person who arrested you so that that person can pay your damages as, should you win a case against the State, the taxpayer will be the one to pay your damages. One can also bring a civil claim for damages where one has suffered damages as a result of being assaulted by a police officer (or member of the South African National Defence Force).
WHO EXERCISES OVERSIGHT OVER THE NCC (NATIONAL COMMAND COUNCIL)?
WB: The President should do so. If there is a legal attack, then the High Court and Constitutional Court can be approached in the event that citizens’ rights are affected. Regulations have to be fair and reasonable and cannot be contrary to the Constitutional, particularly the Bill of Rights.
TO***CO REGULATIONS – SOME VIEWS
Does the smoking ban help prevent Covid-19. William Booth does not think so and can’t see any connection between smokers and the spread of Covid-19. The ban has had a massive impact on two industries. There has always been a black market on to***co and one must ask oneself “who has interests in this market?” Mr Booth believes there will be more challenges against the to***co industries and the problem needs to be dealt with on a consultation basis between all parties concerned.
LABOUR LAW – CAN AN EMPLOYEE INSIST THAT THEIR WORK PLACE IS PROPERLY SANITISED?
Mr Booth thinks an employee does have a right to insist on compliance with sanitation regulations as their health could be negatively affected.
IS IT POSSIBLE TO INSTITUTE DIVORCE PROCEEDINGS DURING LOCKDOWN?
WB: The processes are in place but the courts will look at serious cases first. My own input as a divorce attorney: The courts were (except for serious emergencies) closed during April but opened up subject to compliance with regulations in May. There is a processing backlog at the Regional Divorce Courts at the moment which could lead to delays but divorces are able to be processed. The process is (and always has been) quicker through the High Court but slightly more expensive.
CAN A PERSON BE FORCED TO PRODUCE A RECEIPT WHEN THEY ARE FOUND IN POSSESSION OF CI******ES?
It is not a criminal offence to be in possession of ci******es and a person cannot be forced to produce a receipt.
WILL PEOPLE BE ABLE TO MOVE HOUSE DURING LEVEL 3?
WB: Renters will be able to move house, so long as they can produce proof that they are moving house (e.g. by producing the signed Lease Agreement).
Theresa Avenant
Blume Avenant Attorneys
