Retail outlets need to exercise reasonable care when searching customers’ belongings on a suspicion of shoplifting. Because customers may have a claim against a store if their belongings are searched without justification. The retail store may be in the firing line if its employees are found to have crossed the line.
Here are the facts of the 2015 case of Pieterse v Clicks: Pieterse was a customer shopping in a Clicks store. A Clicks employee confronted her and accused her of shoplifting. Pieterse’s handbag was duly searched – but there was no evidence of any stolen goods. Pieterse then sued Clicks and its employee for defamation and injuria (or injured feelings). When the Magistrate’s Court dismissed Pieterse’s claim, Pieterse took the matter on appeal to the High Court. The High Court held that:
- The elements of defamation were not fulfilled as there was no evidence that the employee’s accusation against Pieterse had been publicised. Pieterse’s claim for defamation was therefore dismissed.
- Pieterse’s claim for injuria, however, was awarded. Clicks was ordered to pay her R25,000 in damages.
A claim for injuria requires the injured party to show that:
- There was an intention to injure; and
- There was knowledge of the wrongfulness.
In considering Pieterse’s claim, the court did acknowledge the broader context in which this type of issue arises. Retail stores are plagued by shoplifting, and need a way of managing and monitoring this risk. If the retail outlet and the employee can demonstrate that there are reasonable grounds for suspecting a customer of shoplifting, the outlet would be able to protect its interests by confronting the customer with its suspicions – provided the store proceeds with reasonable care.
In Pieterse’s case, the employee accused Pieterse of putting something into her handbag without paying for it, and proceeded to search her bag (finding nothing). The employee was unable to provide any factual basis on which she arrived at the suspicion that Pieterse was shoplifting. The employee then acted contrary to Clicks’ company policy by proceeding to search Pieterse’s handbag. Clicks and the employee were unable to provide any reasonable justification for the employee’s actions. The court agreed that the employee’s actions amounted to an insult.
There are a number of measures that a retail outlet could consider implementing to both manage their very real risk of shoplifting, and balance their customers’ rights to be treated with respect. Here are some examples:
- Position security cameras around the store, preferably of a sufficiently high quality to allow detailed monitoring.
- Position screens around the store where staff and customer alike are able to spot suspicious activity.
- Put up notices in the store alerting customers to any security measures that may impact them.
- Place high-value items behind the counter, or in locked cabinets. Customers interested in the goods can then ask for assistance from floor staff.
- Strategically station security guards tasked with watching the shop floor for any suspicious activity.
- Implement a well-thought out and practiced procedure for staff to follow in the event that shoplifting is suspected. Confronting the customer and addressing the suspicion with him / her should be done sensitively, with respect to the customer’s feelings, and preferably in relative privacy.
When a retail store insists on searching a customer’s belongings, the store must do so: 1) based on a justifiable suspicion arrived at through reasonable care; and 2) with respect for the rights and feelings of the customer.
As always, it is crucial for employers to implement policies and procedures for employee’s to follow, and, of critical importance, to ensure that staff are aware of and comply with all policies and procedures pertaining to their employment.
Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.