South Africa is one of the top five countries that suffer greatly from theft and shoplifting. In South Africa, an average of 170 people get caught shoplifting daily. Snyman Criminal Law 2002 defines theft as follows; “A person commits theft if he unlawfully and intentionally appropriates movable, corporeal property which;
- belongs to, and is in possession of another
- belongs to another but is in the perpetrator’s own possession; or
- belongs to the perpetrator but is in another’s possession and such other person has a right to possess it which legally prevails against the perpetrator’s own right or possession, provided that the intention to appropriate the property includes an intention permanently to deprive the person entitled to the possession of the property, of such property.”
Shoplifting weakens the economy and creates a ripple effect for the consumers, having to pay more for their goods, which in turn may cause retailers to go out of business, resulting in job losses. Although the threat of shoplifting is a great economical concern, business owners need to tread carefully when dealing with a shoplifting matter. South African laws must conform to the Constitution, and several constitutional rights need to be considered in respect of the detention of suspected shoplifters. The constitutional right of an individual to be considered is the right to be presumed innocent until proven guilty by a court of law. The right of the detainee to remain silent. The right to have one’s dignity respected, to mention a few. Shoplifting can happen under various circumstances and not all should be considered blatant acts of theft.
Being Absent-minded was proven to be a valid defence to shoplifting in High Court Eastern Cape Division, Grahamstown case between Akhona Makhalima and the State Case No CA & R30/2017, where a father was convicted in the Magistrates Court, East London of theft and sentenced to pay a fine of R500.00 or to undergo 50 days imprisonment. The father appealed the conviction based on his defence that he was accompanied by his young child and purchased and paid for some items at a shop, however, he did not pay for a bottle of energy supplement which was found in his possession after he left the shop. The father’s defence was that he did not have the intention to steal, and he forgot to pay for the item. The appeal succeeded and the conviction and sentence were set aside by the Court.
Shoplifting is a real economical concern in South Africa and occurs under various circumstances, there are professional shoplifters, shoplifting driven by poverty, addiction, kleptomaniacs, and thrill-seekers however it would be wise for shop owners to exercise their discretion when faced with an incident of shoplifting before involving law enforcement or pursuing criminal prosecution, as the onus rest on the State to prove beyond a reasonable doubt that the perpetrator’s conduct satisfies all the elements of theft.
Should you fall victim to unintended shoplifting, do not hesitate to contact us for legal assistance.
Charne Sebonka
charne@bbplaw.attorney
Associate
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