S v MAKHALIMA 2018 (1) SACR 625 (ECG)
Theft — Proof of — Shopper forgetting to pay for item put into personal bag — Accused distracted by telephone call from spouse whilst at paypoint and putting item into said bag in order to distract child — Accused’s version reasonable and ought to have been given benefit of doubt.
The appellant was convicted in a magistrates’ court of theft. It was alleged that he had stolen a bottle of energy supplement from a shop where he had made some purchases. In his defence, the appellant testified that he went to the shop accompanied by his young child whom he put into a shopping trolley that was constructed to look like a vehicle. His child was in a separate compartment that gave him the illusion of driving the trolley. He selected the supplement from the shelf and put it into the trolley, at which point his child became excitable and wanted to taste it. In order to distract the child, he put the supplement into a green bag, which also contained his wallet and his car keys, and gave his child some chips instead. When he got to the paypoint he put his items on the counter, including the green bag, but was distracted by a telephone call from his wife. He paid for the other items but not the supplement, and was apprehended as he attempted to leave the shop.
The magistrate was of the view that he could not have forgotten about the supplement and should have taken other steps to distract his child, rather than put the supplement into his bag. She also reasoned that because he was holding the bag he should have felt the weight of the supplement.
Held, that the magistrate had resorted to speculative reasoning in rejecting the appellant’s evidence. It was not improbable that a parent would be distracted by a child and forget to pay for an item. There was no evidence, on behalf of the state, of the manner in which the appellant put the supplement into the bag, or what the child was doing when he did so. His version was also supported by evidence of the state that, when confronted outside the shop, he immediately said the supplement was in the bag and that he had forgotten to pay for it. This was a case where there was a reasonable doubt about the guilt of the accused, and the appellant should have had the benefit of that doubt.