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2011
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[2011] ZAGPJHC 90
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Susman v Mr Price Ltd (2008/4046) [2011] ZAGPJHC 90 (12 August 2011)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
2008/4046
DATE:12/08/2011
In the matter between:
SUSMAN,
KAREN
..................................................................................
Plaintiff
and
MR
PRICE
LIMITED
..............................................................................
Defendant
J U D G M E N T
SALDULKER, J
:
A.
INTRODUCTION
[1] Shopping for shoes is a
popular pastime for many people, bringing them much joy. However,
sometimes it can turn into an unhappy
experience, as the plaintiff,
Mrs Susman discovered on 26 July 2007, when she entered the
defendant’s premises, a popular
chain of stores, Mr Price.
[2] The plaintiff instituted a
claim for damages against the defendant in the sum of R450,000 for
her unlawful detention, defamation
and assault at their Balfour
Park store. After evidence was led in this matter and during
argument, the claim for assault in
the amount of R100 000 was
abandoned. The plaintiff also amended paragraph 7 of her particulars
of claim by the addition of a new
paragraph 7.3 which reads
‘
alternatively
under the direction of the defendant’
.
This amendment was not opposed.
[3] There were thus only two
issues for decision before the court:
whether there was unlawful
detention; and
ii. the claim for
defamation.
I turn to consider the evidence in some detail.
B.
EVIDENCE:
FOR THE PLAINTIFF
[4] The plaintiff, Mrs Karen
Susman, a hairdresser by profession, testified that on 26 July 2007,
at approximately 12h00 she entered
the defendant’s Balfour
Park store, wearing a pair of black and white ‘peep-toe’
polka dot shoes. At the store
she made two purchases for which she
paid. Before she exited the store, she was stopped by a security
guard wearing the defendant’s
uniform, a black shirt and a Mr
Price red cap with its logo. The security guard checked the items
she had in her possession against
her receipt and found that every
item was paid for. He then asked for a receipt for the shoes that she
was wearing. She did not
have one, and explained to him that she had
purchased the shoes at the defendant’s ‘Wedge’
branch the day before.
The security guard accused her of stealing the
shoes. She told him that she would telephone her husband to bring the
receipt. The
security guard did not allow her to leave the store.
[5] The manageress of the shop
then approached the scene of interrogation at the door of the store.
Addressing her in a derogatory
manner, and using disparaging and
vulgar language, the manageress pulled her by the arm and led her,
in full view of the defendant’s
staff and customers, to a back
room in the store, where she was detained. The manageress accused
her of stealing the shoes, and
did not allow her to leave the store.
They wanted to arrest her and required proof that she had purchased
the shoes. The manageress
informed her that the computer at the
store had been checked and a pair of shoes was missing from the
shelf.
[6] The plaintiff telephoned her
husband and requested him to bring the slip for the shoes. Whilst she
was in the office, the security
guard and the manageress were
present. Her husband arrived at the store an hour later and showed
the slip to the manageress, and
later to Mr Miller, the Area
Manager, who then apologised for the conduct of his staff. Mr and Mrs
Susman then left the store.
Mrs Susman had been in the store for at
least two hours.
[7] The plaintiff testified that
she was embarrassed and traumatised by the incident. She was on
medication for anxiety and was
now anxious when she went out
shopping. Her reputation had been damaged. She has a close
relationship with her clients and was
worried that they would view
her as a ‘potential thief’.
[8] Under cross-examination she
stated that a Mr Price tag had been under the shoe which had
attracted the attention of the security
guard. The shoes were new and
similar shoes were also on display at the store. She denied that she
had been excused by the manageress
to leave the store and that she
had refused to do so. She stated that the manageress had sworn at
her. The security guard had
spoken to her in an aggressive manner and
accused her of stealing the shoes in the presence of the public and
the defendant’s
employees, which was defamatory. She denied
that the security guard was employed by Izikathi Security as the
security guard wore
a Mr Price shirt.
[9] It was put to her that she
had been upset by the incident and that the manageress had tried to
calm her down, suggesting that
they go to the office, and that she
had not been detained against her will. The plaintiff denied these
assertions, stating that
they had required proof that she had
purchased the shoes and that, only after her husband had produced the
slip, was she excused
by Mr Miller. She denied that she and her
husband had been swearing and were upset during the incident.
[10] After the plaintiff
completed her testimony, Ms Seboko, counsel for the defendant made an
application to recall the plaintiff,
which was not opposed. During
her further testimony, the plaintiff stated that the security guard
had blocked the exit of the store,
placing his body in front of her,
restraining her from leaving the store.
[11] Mr Trevor Susman, the
husband of the plaintiff testified that he was at work, in a meeting
when he was telephoned by his wife,
requesting him to bring the
receipt proving the purchase of the polka dot shoes. It took him an
hour after receiving the phone
call, to reach the defendant’s
store.
[12] On his arrival, he found his
wife very distressed, with red marks on her arm, in an office at the
back of the store with a
security guard and the manageress. His wife
informed him, that ‘Bridget’, the manageress, and the
security guard had
arrested her, used vulgar and abusive language
towards her and accused her of stealing the shoes. When he asked the
security
guard and the manageress about their statements and conduct,
they laughed and repeated the derogatory statements. Although he
was upset, he did not swear or shout at them. He denied grabbing the
telephone from the manageress to speak to Mr Miller. When
Mr Miller
arrived at the store, Mr Susman produced the proof of purchase. Mr
Miller apologised and excused them. Mr Susman informed
them that he
would be taking the matter further. He and the plaintiff then left
the store. Mr Susman testified that as a result
of this incident his
wife was on anti-depressant medication and could not ‘go out’
on her own.
[13] Under cross-examination he
stated that he believed that the bruises on the arm of the plaintiff,
were sustained as a result
of the assault inflicted on her by both
the security guard and the manageress at the time, when they grabbed
the plaintiff by both
hands and pushed her into the office.
The plaintiff then closed her case.
EVIDENCE FOR THE DEFENDANT
[14] Ms Gugu Ngwenya testified
that she is a sales assistant at Mr Price, Balfour Park. On the day
of the incident, she was on
the shop floor in the vicinity of the
shoe isle when she observed the plaintiff fitting on shoes. She
noticed that the shoes around
the plaintiff were those of the
defendant with the Mr Price tag, but she did not see the plaintiff’s
own shoes. She was
about three meters away from the plaintiff and
became concerned. As she was about to change posts and move to the
fitting rooms,
she advised her supervisor ‘Johan’ to
monitor the plaintiff.
[15] Ms Bridget Kasankomona,
testified that she has been the assistant manageress at the
defendant’s store since 2003. On
the day of the incident she
was called by the security guard, Mandla Brightman Sithole who
worked for Izikathi Security, to the
front door, as a customer was
complaining.
[16] Upon her arrival at the
door, she found the plaintiff causing a commotion. The plaintiff
informed her in a high tone of voice
that ‘
your
bloody security guard is accusing me of stealing these shoes
’
and that she was going to sue Mr Price. There were a lot of people
present at the time and the plaintiff was attracting
their attention.
She asked the plaintiff and the security guard whether the enquiry
for the proof of purchase had taken place
inside or outside the
store. This was to establish which procedure the security guard had
followed in the matter. She was told
by the security guard and the
plaintiff that he had asked for the slip inside the store. She
explained that there were two procedures
at the store. In terms of
the one procedure, if you need to verify a purchase, you must stop a
customer as he/she is about to leave
the store, at the exit, so that
in the event that the customer has forgotten to pay for an item,
he/she could go back and pay.
The second procedure was when a
customer was suspected of stealing, the customer must first leave the
store, and then stopped
outside and thereafter taken back into the
store.
[17] Ms Kasankomona then invited
the plaintiff to accompany her to the office to resolve the problem,
at the same time apologising
to her, if the security guard had been
wrong. But the plaintiff refused, informing her that she had the slip
for the shoes and
she would phone her husband to bring it. The
plaintiff told her that she had bought the shoes at the Wedge
branch. The manageress
then offered to call the branch to fax the
docket to prove the purchase of the shoes. But the plaintiff refused
this offer and
informed her that her husband was on his way with the
slip. She then excused the plaintiff as her husband was on his way
but
the plaintiff refused to leave the store. She did not treat the
incident as a shoplifting matter.
[18] Whilst they waited for Mr
Susman to arrive, on the plaintiff’s insistence, the quantity
of the shoes on the shelf was
checked. Johan scanned the barcode of
the shoes and discovered that there was in fact a similar pair of
shoes missing. Throughout
this period the plaintiff was
un-cooperative, using abusive language, threatening to sue the
defendant and attracting the attention
of the customers in the
store, informing them that she had money and did not steal the shoes.
[19] Ms Kasankomona then went
into the office and telephoned Mr Miller, the Area Manager,
explaining the situation to him as she
could not handle the matter on
her own, due to the plaintiff’s behaviour. Whilst she was on
the phone, the plaintiff’s
husband entered the office, swearing
at her and grabbed the phone from her, interrupting her conversation
with the area manager.
The plaintiff’s husband was also abusive
and threatened to sue the defendant. The plaintiff stood at the door
of the office
and did not enter it, until Mr Miller’s arrival.
When he arrived, a discussion ensued and thereafter, Mr and Mrs
Susman left
the store.
[20] She confirmed that she had
made a statement on the day of the incident. Discrepancies in regard
to her testimony and the statement
were put to her. She insisted
that her testimony was correct, and that it had not occurred to her
to mention everything in her
statement.
[21] The manageress testified
that they treated their customers with respect and did not swear at
them. She denied that she or the
defendant’s staff had used
disparaging and abusive language defaming the plaintiff. They also
did not assault or insult her.
[22] She did not accuse the
plaintiff of stealing the shoes. The plaintiff was stopped inside
the store, at the door, because
she was not suspected of stealing.
The police were not summoned nor was the plaintiff detained. They had
waited for the plaintiff’s
husband to arrive with the proof of
purchase. She stated that although Mr Price assigned duties to the
security guards at the store,
they were not employed by the
defendant. They were employed by Izikathi and wore the Izikathi
apparel which consisted of a blue
shirt, khaki trousers with Izikathi
badges on the shoulders. The security guard was not employed by the
defendant.
[23] Mr Johan Venter testified
that he was an assistant manager at the defendant’s Balfour
Park store at the time of the incident.
Ms Gugu Ngwenya had drawn the
plaintiff to his attention, as she was wearing shoes with the price
tag of Mr Price and she was
not sure whether the shoes had been paid
for. He then instructed the security guard, who was wearing an
Izikathi uniform, a blue
shirt with the Izikathi logo, to monitor the
plaintiff and to establish whether the shoes she was wearing were
stolen. When the
plaintiff tried to leave the store, the security
guard checked the items she had bought and endeavoured to establish
from her,
whether the shoes on her feet had been paid for. Mr
Venter was not privy to their conversation.
[24] The security guard then
called the manageress. Mr Venter also approached the scene of
interrogation at the door. The plaintiff
told them that she had
bought the shoes at their ‘Wedge’ branch and had
forgotten to remove the price tag, and that
she would phone her
husband to bring the slip which was at home.
[25] On instructions from the
manageress, Mr Venter checked the quantity of the ‘peep-toe
polka dot shoes’ and discovered
that there was a similar pair
missing, and he informed the manageress of this. The manageress,
‘Bridget,’ then apologised
to the plaintiff and told her
that she could leave the store. The plaintiff refused to leave,
stating that she would wait for
her husband to bring the slip. The
plaintiff spoke in an irritated tone saying that she could not
believe that she was being accused
of stealing the shoes.
[26] The manageress then left the
scene at the door to call the area manager. The plaintiff remained in
the front of the store with
a friend. The security guard also
remained in the front of the store. After the plaintiff telephoned
her husband, he arrived with
the proof of purchase, shouting and
swearing. Mr Venter directed him to the office at the back of the
store as he was ‘upsetting’
the other customers. The
plaintiff was at that stage outside the office in the passageway on a
bench with a friend. Mr Susman entered
the office and grabbed the
phone from the manageress, who was on the telephone, to talk to Mr
Miller.
[27] He denied that the
manageress swore at the plaintiff or assaulted her in any manner. He
stated that their customers were
treated with respect. They did not
swear at their customers. Mr Venter confirmed the store’s
policy procedures as described
by the manageress with regard to the
circumstances under which a customer was stopped inside or outside
the store. If the plaintiff
had no proof of purchase, the centre
security would have been called and they would have detained the
plaintiff in a cell ‘upstairs’
in the centre and the
police would have been summoned. He had not considered the plaintiff
a ‘shoplifter’. They did
not call the police. Mr Venter
testified that the plaintiff had been excused by the manageress ‘on
a guarantee’ that
she had a slip for the purchase.
[28] Mr Brian Miller, the Area
Manager was contacted by the manageress in regard to the incident
with the plaintiff. He testified
that whilst he was talking to her on
the phone, the call was interrupted by another voice, threatening to
sue the staff and Mr
Price. He tried to calm the customer and
informed him that he was on his way to the store. When he arrived
there, he found the
plaintiff and her husband waiting in the hallway,
and not in the office. A discussion ensued, and the slip for the
shoes was produced.
Mr Miller then told Mr and Mrs Susman that they
could leave the store and that there would be no prosecution. Mr and
Mrs Susman
then left immediately. Had the slip not been produced,
the plaintiff would not have been excused. The centre management
would
have been phoned and Mrs Susman would have been taken to the
cell.
[29] According to Mr Miller, when
customers were suspected of shoplifting, they would be stopped at the
front door, after having
passed the pay point, and they would then
be requested to produce proof of payment for their purchases. In the
event of such
proof not being available, the suspect would be removed
to the back office, searched and detained there. The police would be
called.
If there was no proof, the suspect would be arrested. He
confirmed the evidence of the two previous witnesses with regard to
the
two procedures to be followed in case of a suspected theft. He
stated that all the security guards at the store were employed by
Izikathi Security and wore Izikathi uniforms, which was a blue shirt
and khaki trousers with clearly visible Izikathi logos.
[30] Mr Barend Liebenberg was
employed by Izikathi Security since March 2008. He testified that
their security guards wore a blue
shirt and khaki trousers. They were
employed at
inter alia
,
Mr Price, Outdoor Warehouse and Dischem stores. The security guards
at Mr Price did not wear Mr Price uniforms but Izikathi Security
apparel. He did not know the security guard in this matter but
confirmed that the security guard at the time of the incident was
Brightman Sithole, an employee of Izikathi Security. From the
dismissal letters, the security guard had been dismissed for
absconding.
C.
ASSESSMENT
[31] It is common cause that the
plaintiff walked into the defendant’s store wearing a new
pair of shoes which bore the
defendant’s price tag. Similar
shoes were displayed on the defendant’s shelf. In these
circumstances, the defendant
was entitled to question her as to
whether the shoes on her feet were paid for, and to investigate her
claims that she had purchased
the shoes the day before, at another
branch.
[32] It is common cause that
proof for the purchase of the shoes was requested from Mrs Susman by
the security guard at the door
of the store, which she did not have
in her possession. It is common cause that the plaintiff remained at
the store for at least
two hours, until her husband arrived with the
slip. The police were not called. No prosecution followed.
[33] The plaintiff’s
version is that she was detained against her will in the office of
the defendant by the defendant’s
employees for at least two
hours until her husband arrived with the slip. According to the
defendant’s employees she was
not detained in their office. She
had been told to leave the store but refused to do so. The plaintiff
was never accused of
shoplifting. Thus there are two mutually
destructive versions. In the often quoted
dictum
of Wessels JA in
National
Employers’ Mutual General Insurance Association v Gany
1931
AD 187
at 199, the following is stated:
‘
Where there are two
stories mutually destructive/before the onus is discharged, Court
must be satisfied upon adequate grounds that
the story of the
litigant upon whom the onus rests is true and the other false’.
[34] If the plaintiff was
detained, in the manner that the plaintiff described, in the back
office, by the defendant’s employees,
the issue is whether it
was unlawful or whether the employees of the defendant were justified
in doing so. The law provides that
the plaintiff must allege and
prove that the person who committed the delict was a servant of the
defendant, acting within the
course and scope of his or her
employment in the execution of those duties and what those duties
comprised at the time of the
incident.
[35] According to the
plaintiff’s pleadings, the security guard ‘
at
all relevant times was an employee, acting in the course and scope of
his employment, and acting on the instructions of the defendant,
alternatively on the
directions of the defendant’.
The plaintiff’s case in her pleadings is that it was only the
security guard who publicly accused the plaintiff of having
stolen
the shoes, restrained and detained her and that his actions were
unlawful and were made in the presence of members of the
public, and
infringed upon the dignity of the plaintiff. Furthermore, that his
statements were intended by the defendant to mean
that the plaintiff
is a thief.
[36] However, the plaintiff’s
testimony was in stark contrast to her pleadings. During her
evidence, the plaintiff, not only
accused the security guard but also
the manageress of unlawfully restraining and detaining her and
damaging her reputation. She
imputed most of the wrongdoing to the
manageress, Ms Bridget Kasankomona, whom she accused of making
disparaging and derogatory
remarks in front of the customers and the
defendant’s employees.
[37] The onus was on the
plaintiff to prove that the security guard was an employee of the
defendant, acting under its instruction
or under its direction. The
security guard was not called to testify. According to all of the
defendant’s witnesses, the
security guard wore the uniform of
Izikathi Security, was not employed by Mr Price and did not wear the
defendant’s uniform.
This was supported by the evidence of the
manageress, Mr Venter and Mr Liebenberg, the latter, an employee of
Izikathi Security.
There is no reason to reject their evidence that
the security guard was not an employee of Mr Price, but employed by
Izikathi and
acted in the course and scope of his employment with
Izikathi. Thus, the plaintiff has failed to show that the security
guard was
an employee of the defendant.
[38] The security guard’s
formal employer at the time of the incident was Izikathi Security.
The manageress testified that
his duties in the store were assigned
to him by the defendant. It is clear that for practical purposes the
security guard was carrying
out his duties for the advancement of
defendant’s interests
1
,
in the store, and in doing so, he acted reasonably in all the
circumstances of this case.
[39] There is a dispute between
the parties as to whether the plaintiff was in fact detained in the
office at the back of the defendant’s
store. The defendant’s
case is that the plaintiff was not detained. She was told that she
could leave the store, but did
not, and remained outside the offices
at the back of the store, waiting for her husband to bring the proof
of purchase. The plaintiff
contends that she was physically
restrained from leaving the store, and was detained in the back
office, being guarded by the manageress
and the security guard,
awaiting the proof of purchase.
[40] On the plaintiff’s own
version, she was in the privacy of the defendant’s back office,
waiting for her husband
to prove her innocence. In my view, this
cannot be viewed as ‘detention’. It was part and parcel
of the investigation
being conducted by the defendant in the privacy
of their office, to determine the veracity of the plaintiff’s
claims, that
when she entered the defendant’s store, she was
wearing shoes which bore the defendant’s price tag , which
had been
purchased at another branch, and it was not shoes that she
had not paid for. In my view, in these circumstances, the
defendant’s
employees and the security guard had a valid basis
for stopping the plaintiff at the door after monitoring her
movements, and were
justified in carrying out their investigation to
verify the plaintiff’s claims. In my view the procedure they
followed in
questioning her, was reasonable in the circumstances.
Significantly, the defendant’s witnesses testified that the
plaintiff
was not regarded as a thief or a shoplifter. This is not
improbable as plaintiff was not arrested or detained at the
management
centre holding cell, which was the normal procedure in the
case of theft or shoplifting. No prosecution took place.
[41] The manageress testified
that she questioned the plaintiff about the shoes and invited her to
the privacy of the defendant’s
office to resolve the problem,
but to no avail. The plaintiff refused to enter the office, was
abusive and threatened to sue
the defendant because she maintained
that she was innocent, and had not stolen the shoes. The defendant’s
version is that
they excused her after she had explained that her
husband was on his way with the slip. The plaintiff contends that
this is improbable
as the defendant’s initial investigation
revealed that a pair of similar shoes was missing from the shelf. In
my view, the
defendant accepted the plaintiff’s explanation
that she had proof that she had purchased the shoes the day before
and her
husband was on his way with the slip. Clearly, the
defendant’s employees believed her as at no stage did they
resort to police
action, not even when they discovered that there was
a pair of similar shoes missing from the shelf. According to the
defendant’s
witnesses the plaintiff was abusive after she was
stopped by the security guard. She was clearly upset, attracting the
attention
of the customers in the store. It was reasonable in these
circumstances, for the manageress to excuse her from the store as she
was causing a commotion. The plaintiff refused to leave and the
manageress then resorted to telephone the area manager for advice.
In
my view the defendant’s version that the plaintiff refused to
leave the store after she was excused, is probable and true.
[42] Furthermore, even if this
court were to find that the defendant’s employees questioned
the plaintiff in the privacy
of their office, and waited there with
her for the proof of purchase, they were entitled to do so, and they
acted reasonably in
the circumstances. This cannot be regarded as
unlawful detention. The plaintiff spent time at the store, whether it
was inside
the defendant’s office or in the hallway, because
she was waiting for the slip, to prove her innocence. When she was
proved
innocent, she left the store. In my view, her presence in
the store for two hours was thus, of her own free will. Thus, the
plaintiff failed to establish with cogent evidence that she was
unlawfully and wrongfully detained in the store.
[43] In assessing the
probabilities, the conclusion is inescapable that of the two versions
before the court, the defendant’s
is the more probable and
true. It was reasonable for the defendant’s manageress to form
a suspicion of wrongdoing on the
plaintiff’s part, and she
would have been justified, even on the plaintiff’s version to
make the enquiries in the privacy
of the defendant’s office at
the back of their store. The conduct of the employees of the
defendant, as well as that of
the security guard, was not unlawful
nor was it unreasonable in the circumstances of this case.
[44] Under cross-examination, it
was put to Mr Miller that the reference to the word “
prosecution
”
in his evidence is indicative of a suspicion of theft. In my view,
even if the plaintiff was suspected of stealing, reasonable
steps
were taken by the defendant to ensure that the plaintiff would not be
prematurely and wrongfully arrested. The police were
not called and
no prosecution followed.
[45] Defamation is the wrongful,
intentional publication of words or behaviour concerning another
person, which has the effect
of injuring his/her status, good name
and reputation. The defence to defamation is justification. A
person’s good name is
the respect and status he/she enjoys in
society and any action which has the effect of reducing his/her
status in the community
and consequently infringes his/her good name
is in principle an
iniuria
2
.
[46] The plaintiff’s case
against the defendant is that the security guard and the manageress
referred to her in derogatory
and vulgar terms and accused her of
stealing in full view of all the customers and the staff. According
to the manageress she
phoned her manager because of the appalling
behaviour of the plaintiff who was swearing and threatening them. She
had invited the
plaintiff to discuss the matter in the privacy of
their offices, but she refused. In her pleadings the plaintiff
alleged that
the security guard had defamed her, yet in her
testimony she imputed the wrongdoings to both the manageress and the
security guard.
The plaintiff testified that she was concerned that
her clients would regard her as a potential thief. However no
evidence to this
effect was led.
[47] The plaintiff should have
known that walking into the defendant’s store wearing shoes
which bore the defendant’s
price tag could attract attention
or suspicion. The defendant’s witnesses and the security guard
monitored her movements
in the store, suspected something was amiss,
and were then justified in stopping her and questioning her. They
testified that they
did not accuse the plaintiff of theft and were at
all material times courteous when talking to the plaintiff and did
not verbally
or physically abuse her. Both Mr Venter and the
manageress testified that they treated their customers with respect.
There is no
reason to disbelieve them. Mr Venter testified that the
plaintiff was with a friend. The plaintiff could have called her
friend
to corroborate the alleged defamatory statements that were
made against her by the defendant’s employees and the security
guard or the physical and verbal abuse she suffered at their hands.
Because of the contradictory nature of the plaintiff’s
testimony I find that the plaintiff failed to prove her claim for
defamation against the defendant.
[48] The plaintiff testified that
she is presently on medication because she is suffering from anxiety,
and reluctant to go shopping
on her own because of the incident.
However the plaintiff did not submit any medical evidence to
corroborate these allegations,
nor did she call her doctor to testify
to the diagnosis.
[49] Having regard to all of the
evidence I find the defendant’s version of the events in the
store is more reliable and credible
than that of the plaintiff. There
is nothing inherently improbable in the version of the defendant’s
witnesses. In my view
all the defendant’s witnesses testified
in a consistent and satisfactory manner. They corroborated each
other in material
respects. They withstood the rigours of
cross-examination and there were no contradictions of a material
nature to put their credibility
into question. They were impressive
witnesses who gave their evidence with confidence and candour. There
are no reasons to disbelieve
their testimony. In contrast, the
plaintiff and her husband were not satisfactory witnesses. They were
neither credible nor convincing.
It is improbable that the
defendant’s employees would accuse the plaintiff of stealing
the shoes, use abusive language and
pull her by her arm, to the back
office in full view of their customers, referring to the plaintiff in
derogatory terms. Mr Susman
testified that the plaintiff had marks on
her arms, as a result of being assaulted by the manageress and
security guard. This was
however not borne out by the testimony of
the plaintiff and clearly led to the plaintiff’s claim for
assault being abandoned.
Mr and Mrs Susman’s version of the
events at the defendant’s store is rejected as improbable and
untrue.
[50] In view of all the
aforegoing, I find that the defendant acted reasonably and lawfully
by first investigating the circumstances
of the case before taking
any decision whether to detain, arrest and prosecute the plaintiff,
all of which did not take place.
I find that the plaintiff failed to
prove that she was unlawfully and wrongfully detained in the
defendant’s office at the
back of the store. Furthermore she
has failed to prove that she suffered
contumelia,
inconvenience, deprivation of her liberty and an affront to her
dignity. Her reputation was not injured.
[51] 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 could produce the proof of
purchase at the
door.
[52] As was stated in
Damon
v Greatermans Stores Ltd and Another 1984(4) SA 143 (W):
‘
In the case of
suspected shoplifting it is not practicable to arrest the suspected
person until he has left the premises without
paying for the goods
which he has taken. It will not be practicable for the person in
charge of security to decide whether a charge
should be
made
unless subordinate or other employees are entitled to take an
arrested person back to the premises
before he is handed over to the police
.
What is of considerable importance is that it is in the
interests of an arrested person himself that he should not be charged
without
being given the 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’. (my underlining)
D.
CONCLUSION
[53] Having regard to all of the
aforegoing, the plaintiff has failed to prove her case against the
defendant on a balance of probabilities
and has therefore not
succeeded in discharging the
onus
resting on her. The plaintiff’s claim against the defendant
must therefore fail.
.
[54] In the result, I make the
following order:
‘The plaintiff’s
action is dismissed with costs’.
_____________________________
JUDGE
H
SALDULKER
SOUTH
GAUTENG HIGH COURT,
JOHANNESBURG
ATTORNEY FOR THE PLAINTIFF:
SNAID & EDWORTHY
ATTORNEY FOR DEFENDANT:
MADLELA GWEBU MASHAMBA
INC. ATTORNEYS
COUNSEL FOR THE PLAINTIFF:
ADV RILEY
COUNSEL FOR THE DEFENDANT:
ADV SEBOKO
DATE OF HEARING:
18 FEBRUARY 2011
DATE OF JUDGMENT:
12 AUGUST 2011
1
Midway Two Engineering &
Construction Services v Transnet
Ltd
1998(3)
SA 17(SCA)at 28
2
Argus
Printing and Publishing Co Ltd v Esselen’s Estate
1994 (2) SA 1
(A).