Distracted dad finally off hook for stealing energy drink

WHEN you are out 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’ imprisonment for leaving Spargs shop in Beacon Bay without paying for a bottle of energy supplement. 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 that his son had always wanted to taste the supplement so he had hidden it in a bag.

He then forgot to pay for it, walked out of the shop and guards pounced on him. He told the court he had been even further distracted when he got a call from the child’s mother as he was about to pay.

The high court upheld his appeal on Thursday last week.

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

“She was of the view that his 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 magistrate also rejected Makhalima’s explanation that the call he had received had distracted him because it had ended before he had to pay.

“I think this reasoning is speculative and overlooks the possibility that during the whole process of un- packing goods from a trolley and getting ready to pay‚ a telephone can divert a person’s attention from the matter at hand.”

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 him but that it had not been necessary to hide the supplement.

“It is not improbable that a parent will be distracted by a child and will forget to pay for an item.”

The high court also found that the magistrate had questioned Makhalima in a “manner which was nothing short of badgering and strongly suggested that the magistrate had already decided that [Makhalima] was guilty”.

The high court set the conviction and sentence aside. – DispatchLIVE