1. Seeing that #ArrestRefilweMtsweni and #MpumalangaPremier are trending, law nerd unite around the question whether she CAN be arrested. Why? Well, the regulations are strangely worded.

2. It states that "[t]he wearing of a face mask is mandatory for every person when in a public place ... and any person who fails to comply with a verbal instruction by an enforcement officer to wear a face mask, commits an offence". So what? You might ask.

3. In terms of the regulations it is only an offence IF YOU FAIL TO COMPLY WITH A VERBAL INSTRUCTION from SAPS / SANDF etc. It is not the NOT wearing of the mask - it is the failure to comply with the instruction to wear a mask that is.

4. Nitpicking? Maybe. But when in doubt, in cases where a criminal offence is created, the law will be construed in favour of the person accused.

5. Of course it is not clear if the enforcement officers view it this way. Media reports quote Minister Cele as saying "If you are not wearing a mask (in public), you will definitely be arrested." Pronouncemetns by Ministers do not constitute the law.

6. Now the conundrum: it might not be legally possible to arrest the Premier (unless an enforcement officer ordered her to wear the mask and she refused).

BUT: it is important that we all be equal before the law - why can a Premier be in public without a mask?!

7. It creates legitimacy and trust issues to already fragile relations - and this is detrimental to citizen compliance with Covid regulations.

So, one would expect strong action to be taken by the ANC to signal that this is unacceptable behaviour.

8. And if the enforcement officer did not verbally reprimand the Premier to put on a mask, that opens a whole lot of other questions, seeing that over 7 000 mere mortals have been arrested so far for not wearing a mask.

Oor en uit.