Contributors: JARROD VAN DER HEEVER CANDIDATE ATTORNEY AND JUSTIN SLOANE PARTNER
- On the 17th of March 2020, Dr. Nkosazana Dlamini Zuma, MP Minister of Cooperative Governance and Traditional Affairs, released the first set of regulations (“the regulations”) in terms of section 27(2) of the Disaster Management Act 57 of 2002 (“the Act”) in response to the COVID-19 pandemic which has gripped South Africa. Amendments to the Regulations issued on the 17th of March 2020 were published on the 25th of March 2020 (“the Final Lockdown Regulations”) and these amendments created the National Lockdown which came into effect on the 27th of March 2020.
- Many South Africans have been left wondering what the consequences are of a failure to adhere to the regulations and the Final Lockdown Regulations and whether they may be punished for any such failure. Regulation 11 of the Regulations and Regulation 11B of the Final Lockdown Regulations, which are aimed at restricting the movement of South Africans during the period of the lockdown, created new offences. Any person who contravenes these could be arrested and subsequently convicted. The offences and penalties which are relevant to the general population of South Africa are as follows:
“Offences and penalties
- (1) For purposes of regulation 3, any person who—
(a) convenes a gathering;
(b) permits more than 50 persons at premises where liquor is sold and consumed; or
(c) hinders, interferes with, or obstructs an enforcement officer in the exercise of his or her powers, or the performance of his or her duties in terms of these Regulations, is guilty of an offence and, on conviction, liable to a fine or to imprisonment for a period not exceeding six months or to both such fine and imprisonment…
(4) Any person who intentionally misrepresents that he, she or any other person is infected with COVID-19 is guilty of an offence and on conviction liable to a fine or to imprisonment for a period not exceeding six months or to both such fine and imprisonment.
(5) Any person who publishes any statement, through any medium, including social media, with the intention to deceive any other person about—
(a) COVID-19;
(b) COVID-19 infection status of any person; or
(c) any measure taken by the Government to address COVID-19, commits an offence and is liable on conviction to a fine or imprisonment for a period not exceeding six months, or both such fine and imprisonment.
(6) Any person who intentionally exposes another person to COVID-19 may be prosecuted for an offence, including assault, attempted murder or murder.
Restriction on the movement of persons and goods
11 B. (1)(a) For the period of lockdown-
(i) every person is confined to his or her place of residence, unless strictly for the purpose of performing an essential service, obtaining an essential good or service, collecting a social grant, or seeking emergency, life-saving, or chronic medical attention;
(ii) every gathering, as defined in regulation 1 is hereby prohibited, except for funeral as provided for in subregulation (8);
(iii) movement between provinces is prohibited; and
(iv) movement between the metropolitan and district areas, is prohibited.
(b) All businesses and other entities shall cease operations during the lockdown, save for any business or entity involved in the manufacturing, supply, or provision of an essential good or service.
(c) Retail shops and shopping malls must be closed, except where essential goods are sold and on condition that the person in control of the said store must put in place controls to ensure that customers keep a distance of at least one square meter from each other, and that all directions in respect of hygienic conditions and the exposure of persons to COVID-19 are adhered to.
(c) Retail stores selling essential goods is prohibited from selling any other goods.
(d) The Cabinet member designated under section 3 of the Act may amend the list contemplated in paragraph (c) as required from time to time.
(e) Any place not involved in the provision of an essential good or service must remain closed to all persons for the duration of the lockdown…
(4) All places or premises provided for in Annexure D must be closed to the public except to those persons rendering security and maintenance services at those places or premises.
- Regulation 11G provides that any person who contravenes Regulation 11B(1) and (4) is guilty of an offence and shall be liable on conviction to a fine or imprisonment for a period not exceeding six months or to both such a fine and imprisonment.
- In light of the aforementioned offences and penalties, a determination was made on the 30th of March 2020 by the Gauteng Magistrates Judiciary, which provides for admission of guilt fines to be paid in event of a breach of the Final Lockdown Regulations. The fines applicable are set out in the table as follows: –
|
CODE |
REGULATION |
CHARGE |
FINE |
|
Regulations before lockdown |
11(1)(a) |
Convening a Gathering, Assembly, Concourse, or processing of more than 100 persons wholly or partially in open air in a building or premises |
R5000.00 |
|
Regulations before lockdown |
11(1)(b) |
Permitting more than 50 persons at a premises where Liquor is sold and consumed |
R5000.00 |
|
Regulations before lockdown |
11(1)(c) |
Hinder/interfere or obstruct a member of the SAPS, SANDF or PEACE OFFICER in execution of his/her duties under the Disaster Management Act Regulations 2020 |
R5000.00 |
|
Regulations before lockdown |
11(4) |
Making a misrepresentation that any person is infected with COVID-19 |
R5000.00 |
|
Regulations before lockdown |
11(5)(a) |
Publishing any statement to deceive any other person about COVID-19 |
R5000.00 |
|
Regulations before lockdown |
11(5)(b) |
Publishing any statement to deceive any other person about COVID-19 infection status of any person |
R5000.00 |
|
Regulations before lockdown |
11(5)(c) |
Publishing any statement to deceive any other person about any measure taken by the Government to address COVID-19 |
R5000.00 |
|
Lockdown Regulations |
11B(1)(i) |
Failure to confine oneself to his/her place of residence (First Offender) |
R1500.00 |
|
Lockdown Regulations |
11B(1)(i) |
Second Offender |
NAG |
|
Lockdown Regulations |
11B(1)(i) |
Third Offender |
NAG |
|
Lockdown Regulations |
11B(1)(ii) |
Illegal Gathering (First Offender) |
R5000.00 |
|
Lockdown Regulations |
11B(1)(ii) |
Second Offender |
NAG |
|
Lockdown Regulations |
11B(1)(iii) |
Failure to comply with prohibition of moving between provinces (First Offender) |
R2000.00 |
|
Lockdown Regulations |
11B(1)(iii) |
Second Offender |
NAG |
|
Lockdown Regulations |
11B(1)(iii) |
Third Offender |
NAG |
|
Lockdown Regulations |
11B(1)(iv) |
Failure to comply with prohibition against movement between Metropolitan and District Areas (First Offender) |
R2500.00 |
|
Lockdown Regulations |
11B(1)(iv) |
Second Offender |
NAG |
|
Lockdown Regulations |
11B(1)(iv) |
Third Offender |
NAG |
|
Lockdown Regulations |
11B(1)(b) – (d) |
Failure to close business or selling prohibited items |
NAG |
|
Lockdown Regulations |
11B(4) |
Annexure D place or premises not closed |
NAG |
WHAT IS THE EFFECT OF THE PAYMENT OF AN ADMISSION OF GUILT FINE?
5. Admission of guilt fines, and indeed criminal proceedings generally, are regulated by the Criminal Procedure Act 51 of 1977 (“the Act”). Section 56 of the Act allows for any individual who has been arrested for a minor offence to be given the option of paying an “admission of guilt” fine. The payment of an admission of guilt fine at a police station ensures that the arrested person does not have to appear before a court and they are released from custody.
6. Unfortunately, what is often not explained to individuals by the police is that the payment of an admission of guilt fine can result in a criminal conviction.
7. Section 57(6) of the Act provides that any person who pays an admission of guilt fine will be deemed to have been convicted and such, conviction will be placed on the criminal record of the arrested person who paid the admission of guilt fine. Effectively, the payment of an admission of guilt fine in terms of Section 56(7) of the Act is equivalent to an individual pleading guilty.
8. Being arrested and detained in custody is undoubtedly a traumatic experience and often an individual may wish for this experience to be brought to an end as soon as possible. Paying an admission of guilt fine may have that immediate result, however, most individuals often forget the unintended consequences of having a criminal record placed against their names until expunged. The scope of this article does not deal with expungements of criminal records, however, generally, for minor offences one can apply to have a criminal record expunged after a period of 10 years has elapsed.
9. The failure by the police to explain an individual’s rights and the effect of an admission of guilt may allow an individual to approach the High Court to have the conviction reviewed and set aside.
10. Considering the table above, if an individual has been arrested (within the Gauteng jurisdiction) for not adhering to the Final Lockdown Regulations, they will be given the option to pay an admission of guilt fine which corresponds with the offence with which they have been charged. Should the arrested individual pay such a fine they will be released from the police station without having to appear in court, however, the nett effect is that they will have a criminal record, which may have a host of negative consequences for future travel and employment.
11. “NAG” in the table above means that there is no option to pay an admission of guilt fine and, therefore, the individual who has been arrested must appear before a court of law. and will need to go through the normal processes to be released on bail.
ALTERNATIVE OPTIONS TO AN ADMISSION OF GUILT FINE?
12. The payment of an admission of guilt fine is, however, not the only option available to an individual who has been arrested and charged with any of the listed offences. Legal practitioners, under the Final Lockdown Regulations, have been classified as an essential service and therefore a person who has been arrested and charged may contact an attorney to assist them with a bail application. This means that a person who has been arrested and charged during the National Lockdown still has their constitutionally guaranteed right to legal representation.
13. Once bail has been granted and an individual is released from custody, the ordinary criminal process will ensue. This will afford an individual an opportunity to consult with their legal representative, after which they can decide on the way forward depending on the circumstances. Before a person is required to plead to the charge(s), they will have an opportunity to submit written representations to the Senior Public Prosecutor who will consider the charge(s), the seriousness of the offence, the circumstances surrounding the person’s arrest and the person’s personal circumstances, after which they will make a decision as to whether they intend proceeding with the matter, alternatively, whether or not the person is a suitable candidate for a diversion programme, which upon successful completion may result in the withdrawal of the charge(s) against the person.
14. In the event that a matter is to proceed to trial, a person will have the option to plead either guilty or not guilty. Where a person pleads guilty, or is found guilty by a Court, this may result in the person being convicted and such person may be sentenced to a maximum of six months imprisonment andor a fine. This does not (or both) in terms of Regulation 11.
15. COVID-19 has indeed thrust South Africa into unchartered territory which has culminated in the declaration of a National State of Disaster and a National Lockdown, however, this does not mean that individuals who have been arrested for an alleged breach of the Regulations and/or the Final Lock Regulations do not have valid defences and/or lose the right to a fair trial. Where a person is able to raise a valid defence and/or has a reasonable explanation, this will mean that they will not be convicted.
16. Unfortunately, where a person has already signed an admission of guilt fine, they will be precluded from raising their defence and/or offer their explanation and, as such, we would suggest that any person who is arrested for the breach of the Regulations and/or the Final Lockdown Regulations immediately contact an us to ensure that they are fully informed of their rights, as well as of the options which are available to them.
CONCLUSION
17. The Regulations and the Final Lockdown Regulations, which have been promulgated in light of the COVID-19 pandemic, have created new offences for which an individual may be charged and convicted. These offences serve to highlight the seriousness with which the South African government is seeking to combat the spread of the COVID-19 pandemic.
18. This article serves to highlight that individuals who are arrested during the National Lockdown do not have to merely sign admission of guilt fines, which may have negative consequences. Everyone, even during the National Lockdown, has the right to legal representation and , as such, anyone who has is arrested should immediately contact an us as soon as possible to ensure they are fully informed of their options and rights prior to the making of any decisions.
19. COVID-19 is a pandemic which has gripped our nation, but this pandemic cannot and does not void a person’s right to legal representation no matter the offence with which they have been charged.
20. Schindlers Attorneys have a team of experienced attorneys who are on standby 24/7 to assist with any queries, questions and/or concerns during the National Lockdown to ensure that you are informed of your rights and options. Feel to contact us on our emergency contact number 083 631 2023.
