Msizi Mhlongo | SchoemanLaw Inc  

Category: Litigation and Alternative Dispute Resolution  

Introduction: 

In a country with high levels of crime, including theft, establishments are always on the lookout for shoplifters, securing a business premises is vital, but there have been cases of unjust profiling of patrons in making assessments whether theft has taken place.  

Business owners, police and private security should take care to avoid profiling and detaining patrons arbitrarily, otherwise they will find themselves dealing with claims for unlawful detention. Patron’s liberties are deprived due to a wrongful arrest, and such deprivation is against the spirit of the Constitution of the Republic and adherence to due process. 

The Criminal Procedure Act does allow for arrests by both law enforcement officers and private individuals on reasonable suspicion of an offence being imminently committed. Care must be taken regarding the complexities of balancing individual liberties with the authority of law enforcement, emphasizing the need for a thorough examination of facts and adherence to legal standards in respect to arrest and deprivation of liberty, failure to do so might result in liability by the arresting parties. 

An example of unlawful detention can be found in Emordi and Another v FBS Security Services (Pty) Ltd and Others, the case revolved around the unlawful arrest and detention of Mrs. Emordi at a Shoprite store. Mr. Lebeta, a floorwalker with limited training in handling such situations, initiated the suspicions, and Mrs. Fourie, the store manager, made the decision to call the police. The court found that Mr. Lebeta's observations were inaccurate, and Mrs. Fourie's decision lacked proper scrutiny.  

The treatment of Mrs. Emordi did not align with Shoprite's own protocol for dealing with suspected shoplifters, especially those with children. The court concluded that Mrs. Emordi was unlawfully detained from the point Mrs. Fourie decided to involve the police. The court held Mr. Lebeta and Mrs. Fourie liable for the unlawful detention of Mrs. Emodi. The third defendant, the Minister of Police was found liable for any damages after Mrs. Emordi's arrest by the police. 

Background of the Case 

The case involves a married couple, the Emordis, who sued the defendants for damages resulting from their alleged wrongful detention following a shoplifting incident at a Shoprite store in Parow on October 19, 2015, between 17:30 and 19:30. Mrs. Emordi and her 16-month-old daughter were initially detained at Shoprite and joined later by her husband. The police arrived, arrested Mrs. Emordi, and charged her, leading to an overnight detention. The key defendants included FBS Security Services, contracted by Shoprite for security, Corporate Investigating and Veracity Assessments (CIVA), contracted for floorwalker and surveillance services, and the Minister of Police. 

The Trial and Allegations: 

The trial focused on determining whether the Emordis' detention was wrongful and unlawful, establishing the defendants' liability, and addressing Shoprite's potential indemnity from third parties. The Emordis claimed their constitutional rights were violated, seeking damages for general and medical expenses, as well as losses to their business and earnings. 

The plaintiffs alleged that Mrs. Emordi and her daughter were wrongfully detained by security guards and floorwalkers employed by FBS and CIVA, as well as Shoprite employees, based on false accusations of shoplifting. The police, employed by the Minister, were accused of continuing the wrongful detention. The defendants argued that the detention was lawful due to suspected theft. 

Witness Testimonies and Evidence: 

The case hinged on the credibility of witness testimonies. Mrs. Emordi's testimony detailed her shopping experience, detention, and subsequent arrest, refuting allegations of theft. Mr. Agholar, the second plaintiff, corroborated parts of his wife's testimony. 

Witnesses, including Mr. Lebeta, a floorwalker, and Mr. Canda, a security officer, presented evidence supporting the defendants' perspective. Mrs. Fourie, the store manager, testifies about protocols for handling shoplifting incidents. The Minister's evidence included the arresting officer's account. 

Analysis and Court Decision: 

The primary focus by the court was on the absence of preserved video evidence, which could have clarified the disputed facts. The court criticized Shoprite's negligence in failing to preserve the alleged incriminating footage and highlights the questionable practices of deleting footage after 30 days. 

The court concluded that, on the probabilities, Mrs. Emordi did not steal the fresh produce from Shoprite but had purchased them from Parow Mark. The court questioned Mr. Lebeta's version of events, citing discrepancies and lack of supporting evidence. 

Conclusion: 

In summary, the court raised issues of evidence, witness credibility, and the reasonable suspicion of theft in a shoplifting case against Mrs. Emordi at Shoprite. It critiqued the handling of the case, particularly the lack of preserved video evidence and the inadequacies in the investigation process. The court held specific defendants liable for unlawful detention, outlined indemnities, and awarded costs in favour of Mrs. Emordi. Should you find yourself in a similar situation, don't hesitate to get in touch with an attorney at Schoemanlaw Inc. 

Msizi Mhlongo | SchoemanLaw Inc 

Attorney  

https://schoemanlaw.co.za/our-services/civil-litigation-and-alternative-dispute-resolution/