As the end is in sight with our lockdown blues, in light of the recent High Court Pretoria judgment declaring the regulations pertaining to alert level 4 and level 3 unconstitutional the question on everyone's mind is what will happen to the various arrest made in terms of those regulations.
o answer this question the court will rely on the merits of each case and will assess the case to establish whether the arrest were unlawful. The declaration mentioned above does not render the actions of the police or members of the military automatically unlawful as they will argue that at the time of the arrest the regulations were still valid, however the amount of force and manner in which the arrest was effected might be cause for concern.
In a further recent judgement in the matter of M. Khosa and others vs The Minster of Defence, Minister of Police and others, the applicants approach the court for what was in essence a declaratory order to ensure that the police and members of the defence force, when affecting arrests in terms of the lockdown regulations, still maintain the standards of behaviour required in the Bill of rights.
n this judgement the court's strong restatement of the rights of the people puts the state authorities and the security establishment on terms to act within the bounds of the social contract embodied in the Constitution, making clear that anything less is unlawful.
he court ultimately ordered that both the SAPS and the Minister of Defence was to publish new directives aimed at outlining the role and responsibilities of the officers during the country's coronavirus lockdown.
Among these new directives the following were outlined:
1) The relief commander should instruct members during each parade on their functions and duties, cautioning them regularly and strongly against any use of unnecessary violence;
2) Members must ensure that a particular offence exists in law before arresting a person for the commission of an offence;
3) The directive notes that where certain conduct has not been criminalised (such as the wearing of mask or social distancing), members must sensitise 'transgressors' that their conduct is endangering their health and that of others;
4) Due to the often change of the regulations members must ensure that they are up to date with the latest rules;
5) A member may only arrest a person if he or she has the power to arrest that person;
6) Members may arrest without touching them by 'forcibly confining' them;
7) Members may not use private equipment such as a "sjambok":
8)Zero-tolerance approach to torture;
9)Also outlined the complaints procedure for members of the public.
From the above directive it should be noted that it is not a criminal offence not to wear your mask but caustion should be levied as the members may "sensitise transgressors" .
In 2014 the Minister of police alone faced 14 billion rands claims against it under normal circumstances so I highly doubt that the police will be able to lawfully "sensitise transgressors".
As for me, I will follow the great batman and wear my mask at least for the time being.