Woman wins unlawful detention case against Shoprite, police

SAguy

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Without revealing much I can tell you that the amount of complaints for unlawful searches and unlawfully detaining people is high at Shoprite. Shockingly high.

People wait for hours in stock rooms, offices and locked passages without food/water waiting for the police.
 

konfab

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Nope. There is absolutely no legal requirement to keep a till slip to prove ownership. Cele found that out the hard way too. If you remember he wanted till slips for cigarettes in the early stages of lockdown.
There is a difference between cigarettes the police find in your car, and cigarettes that you walk out of a shop with.
 

wombling

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I'm glad she won. Shops should not be treating their paying customers like criminals without proof. The shops are in a position to look at video footage. They should have done so.
 

Howdy

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Another IOL 100% success. They told one side of the story and here you are at one another's throats. I wonder what the real story was? Already we see a translator was needed.
 

konfab

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Without revealing much I can tell you that the amount of complaints for unlawful searches and unlawfully detaining people is high at Shoprite. Shockingly high.

People wait for hours in stock rooms, offices and locked passages without food/water waiting for the police.
A shop that has a target market aimed at the lowest end of society will have a higher amount of shoplifting, and thus will have more of the unlawful searches.

As I said, the problem is the police. They should be able to respond to a non-emergency call like shoplifting in 10 or 20 minutes. That is how this type of thing is dealt with in a civilised country. If Shoprite were giving too many false callouts they would get admonished by the police very quickly.
 

Cosmik Debris

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There is a difference between cigarettes the police find in your car, and cigarettes that you walk out of a shop with.

You don't legally need a till slip for either. If you walk into a shop with a sealed packet of cigarettes in your pocket, do you need to be carrying the till slip?

There is no legal requirement for a till slip as proof against theft for any item at all.
 

Cosmik Debris

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A shop that has a target market aimed at the lowest end of society will have a higher amount of shoplifting, and thus will have more of the unlawful searches.

As I said, the problem is the police.
They should be able to respond to a non-emergency call like shoplifting in 10 or 20 minutes. That is how this type of thing is dealt with in a civilised country. If Shoprite were giving too many false callouts they would get admonished by the police very quickly.

So you condone unlawful searches and detention then? Because the problem is he police?

How do the police know the call out is false? Only a court can decide that. The police are not there to decide which call outs are false.
 

konfab

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So you condone unlawful searches and detention then? Because the problem is he police?

How do the police know the call out is false? Only a court can decide that. The police are not there to decide which call outs are false.
I have just gone through the lawsuit, of which IOL didn't provide and gave an absolutely garbage one sided summary of it.

http://www.saflii.org/za/cases/ZAWCHC/2021/139.html

Pretty much everyone involved was an unreliable witness. For example, the woman is fluent in English but insisted on using an interpreter.

The court set out exactly what happened and what the law prescribes.

Basically, if a shop suspects that you have shoplifted, they have a right to pull you aside and ask you questions. And it is exactly what you would expect, they don't have a right to search you, but they can pull you aside to a private place and ask you a question if they suspect you have stolen something.

What is of considerable importance is that it is in the interest of an arrested person himself that he should not be charged without being given an opportunity of offering any explanation or making any representation to a responsible officer. It is to his own advantage that this opportunity should be given in the privacy of an office with the minimum possible number of persons present. If all these steps are therefore taken with reasonable expedition and an arrested person is only thereafter brought to a police station, it cannot be contended that he was not brought to a police station as soon as possible within the meaning of the phrase in the section’.

[59] That reasoning in Duncan was followed and quoted with approval in a similar manner, Susman v Mr Price Ltd,[9] where Saldulker J dealt with a claim for damages for inter alia unlawful detention in circumstances where the plaintiff was detained by store staff on suspicion of having stolen the shoes that she was wearing. The plaintiff was asked to produce a receipt for the shoes but did not, explaining that she had purchased them at another of the defendant’s branches the previous day. It was common cause that the plaintiff remained at the store for at least two hours until her husband arrived with the till slip. The police were not called and no prosecution followed. There was a dispute as to whether the plaintiff was held against her will during the period in question or whether she was told that she could leave the store but did not, remaining there while she waited for her husband to bring the proof of purchase. The Court found thus that the plaintiff had failed to establish with cogent evidence that she was unlawfully and wrongfully detained in the store. It stated as follows in general:

A store owner cannot be prevented from carrying out an investigation at his store. If he suspects a customer of theft or shoplifting it would be reasonable for him to approach such a customer inside the store or at the exit and to request from the customer, as in this case, to produce proof of purchase for the item that is in the possession of the customer which bears the store owner’s price tag. To make such enquiries would be lawful, and to make the enquiries at a convenient place in the privacy of its offices in the store would be reasonable and justified. Such conduct by a store owner would not be tantamount to unlawfully detaining the customer. In this way customers would be given an opportunity to prove their innocence and to pay for the item in their possession, if it has not already been paid for, whilst they are still inside the store or they can produce the proof of purchase at the door’.

Where Shoprite shot themselves in the foot with this case is that they didn't keep the bloody CCTV footage, would have pretty much resolved the issue. The manager also relied far too much on the testimony of the undercover person looking for shoplifters.

They key part of the unlawful arrest in this case was the fact that the Shoprite couldn't give them the evidence that the manager acted reasonably under the circumstances.

Still think the main problem is the police though.

The judge states:
Accordingly, on a proper analysis of the facts, Mrs Emordi was detained at the behest of the first and second defendant between approximately 16h50 until her arrest by the police at approximately 19h30. For the sake of clarity, I do not regard the period between 16h50 and 17h30 when the police were called as amounting to unlawful detention but a period during which the suspicion of theft on the part of Mrs Emordi was enquired into, unfortunately only superficially and without any meaningful interaction with her. It follows that, at the least, the first and second defendants are liable for Mrs Emordi’s unlawful detention between 17h30 and 19h30.

The judge explictly states that it wasn't an unlawful arrest until the police were called. Had the police actually done their job and arrived on time, the "unlawful" part on the part of Shoprite and its employees would be about 21 minutes.
 

konfab

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So you condone unlawful searches and detention then? Because the problem is he police?

How do the police know the call out is false? Only a court can decide that. The police are not there to decide which call outs are false.
If they superfluously called the police too many times, they would be breaking the law by wasting police time. Which is why having a police force that can be relied on is extremely important, as they will regulate the misuse of its services.
 

Cosmik Debris

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I have just gone through the lawsuit, of which IOL didn't provide and gave an absolutely garbage one sided summary of it.

http://www.saflii.org/za/cases/ZAWCHC/2021/139.html

Pretty much everyone involved was an unreliable witness. For example, the woman is fluent in English but insisted on using an interpreter.

The court set out exactly what happened and what the law prescribes.

Basically, if a shop suspects that you have shoplifted, they have a right to pull you aside and ask you questions. And it is exactly what you would expect, they don't have a right to search you, but they can pull you aside to a private place and ask you a question if they suspect you have stolen something.



Where Shoprite shot themselves in the foot with this case is that they didn't keep the bloody CCTV footage, would have pretty much resolved the issue. The manager also relied far too much on the testimony of the undercover person looking for shoplifters.

They key part of the unlawful arrest in this case was the fact that the Shoprite couldn't give them the evidence that the manager acted reasonably under the circumstances.

Still think the main problem is the police though.

The judge states:


The judge explictly states that it wasn't an unlawful arrest until the police were called. Had the police actually done their job and arrived on time, the "unlawful" part on the part of Shoprite and its employees would be about 21 minutes.

It's lawful to question someone. It's unlawful to search or detain them without performing a citizens arrest and reading them their rights.
 

konfab

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It's lawful to question someone. It's unlawful to search or detain them without performing a citizens arrest and reading them their rights.

Wrong. You do not need to read someone of their rights in a citizens arrest.

If you want to perform a citizens arrest, you need reasonable cause do to so. You don't need to read them their rights.

From the case
. Arrest by peace officer without warrant

(1) A peace officer may without warrant arrest any person-




(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody.

42. Arrest by private person without arrest

(1) Any private person may without warrant arrest any person –

(a) who commits or attempts to commit in his presence or whom he reasonably suspects of having committed an offence referred to in Schedule 1.’

And if you do so, you must bring them to a police station as soon as possible. As the case provides

One such latter case is Damon v Greatermans Store Ltd and Another.[7] In that matter, the Court discussed the requirements for a party relying on sec 42(1)(a) and also the effect of sec 51 of the Criminal Procedure Act which provides that a person arrested without a warrant must as soon as possible be brought to a police station. The Court held that where a person has been lawfully arrested in terms of sec 42(1)(a), such person must as soon as possible be brought to a police station failing which the person detaining the arrested person makes himself liable to an action for wrongful imprisonment.

[58] A question which the Court faced, was whether that provision entitles a security officer or other employee of a store, when making an arrest, to take the person suspected of theft and arrested back into the store to be questioned about the suspected theft. The Court held that in the case of suspected shoplifting, it is not practicable to arrest the suspected person until he has left the premises without paying for items which he has taken; further, it will not be practicable for the person in charge of security to decide whether a charge should be made unless a subordinate or other employees are entitled to take an arrested person back to the premises before he is handed over to the police. The Court stated as follows:[8]

What the court ultimately held was that Shoprite couldn't prove that the citizens arrest was based on reasonable suspicion as they didn't have any evidence to back up the testimony of the manager that she had seen the footage of the CCTV which showed the woman stealing a box of fruit juice.
This was their motivation:
‘The test of whether a suspicion is reasonably entertained within the meaning of sec 40(1)(b) of the Criminal Procedure Act 51 of 1977is objective: would a reasonable man in the particular defendant’s (second defendant’s) position and possessed of the same information have considered that there were good and sufficient grounds for suspecting that the plaintiffs were guilty of the offence or offences for which he sought to arrest the plaintiffs (conspiracy to commit robbery or possession of stolen property knowing it had been stolen?) It seems that in evaluating his information a reasonable man would bear in mind that the section authorises drastic police action. It authorises an arrest on the strength of a suspicion and without the need to swear out a warrant, i.e. something which otherwise would be an invasion of private rights and personal liberty. The reasonable man will therefore analyse and assess the quality of the information at his disposal critically and he will not accept it lightly or without checking it where it can be checked. It is only after an examination of this kind that he will allow himself to entertain a suspicion which will justify an arrest. This is not to say that the information at his disposal must be of sufficiently high quality and cogency to engender in him a conviction that the suspect is in fact guilty. The section requires suspicion but certainty. However, the suspicion must be based upon solid grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion.’ [my underlining]
 

Cosmik Debris

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You are not a peace officer. Neither is a security guard, undercover or not. A peace officer is a metro cop or traffic cop that has been sworn in and is acting under government authority. Peace officers wear a uniform provided by the state, not by a private employer. Peace officers, like police officers, have powers of arrest. You and security guards are citizens. Wrong legislation you read there.
 

Howdy

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You are not a peace officer. Neither is a security guard, undercover or not. A peace officer is a metro cop or traffic cop that has been sworn in and is acting under government authority. Peace officers wear a uniform provided by the state, not by a private employer. Peace officers, like police officers, have powers of arrest. You and security guards are citizens. Wrong legislation you read there.
Note: detention vs arrest.

I suggest you read http://www.saflii.org/za/cases/ZAWCHC/2021/139.html - specifically from #50, take note of #55.

It also quotes Susman vs Mr Price.
These cases bear superficial similarities and why it's used.
Once again, note #40 and #51

Both these cases mention searching, yet no critique by the courts.

INAL - suspect the search part comes in where a person enters a private premises and a reasonable suspicion exists.
 

FaSMaN

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Am I the only one that thinks there is a better way to deal with this?

As in they could have checked the security cameras before calling the cops, it would have been easy enough for them just to check what till she paid at.
 

konfab

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Am I the only one that thinks there is a better way to deal with this?

As in they could have checked the security cameras before calling the cops, it would have been easy enough for them just to check what till she paid at.
Read the case.

Both the manager, and the security guard claimed they checked the security cameras, and saw the woman stealing. And they claimed the police looked at the CCTV footage and saw the same thing. The issue is that for some unholy and retarded reason, Shoprite didn't bother making a backup of the footage.
http://www.saflii.org/za/cases/ZAWCHC/2021/139.html

Therefore it turned into a case where the only objective evidence available was in the plaintiff's case, which was the fact that she was detained.
 

FaSMaN

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Read the case.

Both the manager, and the security guard claimed they checked the security cameras, and saw the woman stealing. And they claimed the police looked at the CCTV footage and saw the same thing. The issue is that for some unholy and retarded reason, Shoprite didn't bother making a backup of the footage.
http://www.saflii.org/za/cases/ZAWCHC/2021/139.html

Therefore it turned into a case where the only objective evidence available was in the plaintiff's case, which was the fact that she was detained.

Thanks for posting the case file, will give it a read, seems like the biggest oversight then was on shoprights side for not backing up the relevant footage as soon as they caught her.
 
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