Man off the hook for shoplifting

Court appeal after guilty verdict for store distraction

While shopping, has a child ever distracted you so much that you forgot to pay for an item in your trolley?

Often, store managers are understanding‚ but East London father Akhona Makhalima was not that fortunate.

He was sentenced to 50 days in jail for leaving Spargs shop in Beacon Bay‚ Eastern Cape, without paying for a bottle of energy supplements.

Had he not taken the conviction on appeal to the High Court in Grahamstown‚ he would have had a criminal record for the rest of his life.

He explained to the East London Magistrate’s Court‚ in vain‚ that his son knew the supplements and always wanted to taste it, so he hid the bottle in their bag. He then forgot to pay for it along with other items – and walked out of the shop. Then security personnel pounced on him and they did not buy his explanation.

He told the court that while at the store, he was even further distracted when he got a call from the child’s mother when he was about to pay.

But, the magistrate found that it was Makhalima’s plan to steal the item.

The high court upheld Makhalima’s appeal last Thursday and this time the magistrate was lambasted.

“The magistrate found that the state h ad proved [Makhalima] had the intention to steal‚” the high court judgment read.

“She was of the view that [Makhalima’s] explanation for putting the supplement in the bag did not make sense because the child was sitting underneath the trolley and would not have seen the supplement.

“This conclusion ignores [Makhalima’s] evidence that the child saw him selecting the supplement and repeatedly asked for it. There was no evidence from the state that this did not happen.”

The high court was also scathing of the magistrate’s view that Makhalima knew that the child became excited when he saw a supplement and that he should have taken steps to distract the child but that it was not necessary to hide the supplement.

“I think that this is somewhat artificial reasoning which imposes an ideal form of conduct on a person without taking into account varying responses to particular circumstances‚” said the high court

The court set the conviction and sentence aside.

Magistrate found accused had intention to steal