Retailers and shoplifting: consider the merits pleaseNovember 9, 2022
We all know that shoplifting is a problem for retailers in South Africa, but should each case not be decided on its merits people ask after a wheelchair-bound man was arrested recently for forgetting something on his lap that he did not pay for.
According to reports the man from Pretoria shopped for reading glasses and put one pair on his lap to go to another stand with more glasses. To avoid the glasses falling off when he used both hands to propel his wheelchair, he put it halfway behind his rucksack that he carries on his chest.
He found another pair and paid for it, forgetting about the pair on his lap. A security guard called him back after he paid and told him to come to the manager’s office, where he was told that he will charged with shoplifting as he tried to conceal the pair of glasses.
His father said afterwards that he often gets absent-minded, but he was still charged, but when he went to court he was told he did not have to appear because some investigation still needs to be done.
The man offered to pay for the glasses, but the store refused and the company later said in a statement it has to follow procedures in cases like this and if it allows payment for items afterwards it would lose its power a deterrent and lead to shoplifting becoming a habit if people are not prosecuted.
However, the disabled man wants to know if the store could not have exercised its discretion not to charge him.
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Response to shoplifting sometimes heavy-handed
The Ombudsman for Consumer Goods and Services says in an advisory note to its members that, although shoplifting hurts the economy, costs consumers higher prices at the cash register and cause job losses when retailers are forced to close stores or even go out of business, the response to this scourge by the security companies working for retailers is sometimes heavy handed.
The response is sometimes so heavy handed that it lands retailers in trouble with the law or causes them tremendous reputational damage, while mistakes can be costly. Various consumers have sued retailers and won substantial amounts for the trauma and public humiliation they suffered.
The ombudsman encourages retailers to adequately train their staff and ensure that the Service Level Agreements (SLAs) they have in place with third party security companies specify what is expected in the area of dealing with suspected shoplifters and provide for the consequences of non-compliance.
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Shoplifting and your constitutional rights
South African law must conform to the Constitution and several constitutional rights could come into play when a suspected shoplifter is detained, such as your right to be presumed innocent, remain silent, not to be unfairly discriminated against, have your dignity respected, not to be treated in a degrading way, not have your person, home or property searched and not to be deprived of property, as well as the rights of arrested, detained and accused persons.
These rights are not absolute and may be limited in a reasonable and justified manner according to section 36 of the Constitution. In deciding whether the limitation of a right is reasonable and justifiable in an open and democratic society, one must consider all relevant factors, including the nature of the right and the importance of the purpose of the limitation, as well as less restrictive means to achieve the purpose.
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The Consumer Protection Act
According to the Consumer Protection Act, shops are not allowed to unfairly discriminate against suspected shoplifters and a supplier or his agent cannot use physical force, coercion, undue influence, pressure, duress or harassment or unfair tactics against a suspected shoplifter as consumers are entitled to be protected from unfair, unreasonable, unjust or otherwise improper trade practices.
Suppliers and their employees are also jointly and severally liable for anything done or omitted in the course of their employment or activities on behalf of the employer or principal. This means retailers cannot merely pass the blame on to the security companies or their employees.
The ombudsman says while the law certainly recognises the rights of retailers to protect themselves from shoplifting, it does expect them at the same time to respect the Constitutional rights of consumers.
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Procedure for apprehending shoplifters
The ombudsman points out that an absent-minded person occasionally walks away with goods without paying for them and that this can lead to prosecution for theft. The store detective or another staff member will then approach the suspected shoplifter and ask the person to go to the manager’s office.
Although the suspect is not under any legal obligation to comply at this stage, refusal to do so may lead to arrest by the store detective. The detective has no special legal status and the arrest is that of an ordinary cypher9ja.
According to the ombudsman the detective does not have to wait until a suspect leaves a store before making an arrest. However, waiting can make it easier to prove that the shopper had no intention of paying. The detective can make an arrest inside or outside a store and can even follow the suspect into another store and arrest the person there. It is better not to resist arrest.
In the store manager’s office, the shopper does not have to answer any questions and can ask to phone an attorney for advice. If possible, the shopper should speak to an attorney out of earshot of the store staff to ensure that they do not overhear any damaging statement that could be repeated as evidence in court.
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Should taking something by mistake make you a shoplifter?
A shopper who has taken something from the store by mistake without paying for it, can possibly avoid prosecution by explaining how the mistake came about, the ombudsman says.
If the store manager accepts the shopper’s story or begins to doubt the detective’s evidence, the store can simply drop the matter. Securing a conviction for shoplifting, a form of theft, requires the prosecution to prove beyond reasonable doubt that the shopper intended to avoid paying for an item.
If the store decides to prosecute, the shopper must be handed over to the police as soon as possible.
A shopper who is arrested by a store detective and acquitted may have grounds to sue for malicious arrest or malicious institution of criminal proceedings. If the detective used force, although the shopper did not resist, the shopper could sue for damages for assault. However, the shopper will have to prove that a charge was laid without reasonable cause.
Increased damages might be awarded to a shopper who was detained in the manager’s office for an unreasonable period or who suffered exceptional embarrassment or humiliation.
If the detective or any other member of the staff accuses a customer of shoplifting in front of witnesses and it is later proved that the customer was not guilty of the offence, the shopper may be able to claim damages for defamation. If only the detective was present, the shopper may be able to sue for injuria.