Is bag searching at retail stores unlawful?
THE increasing number of retail stores that are conducting customer searches when clients enter or leave stores has raised concern about the legality of the practice.
Many customers are upset by the practice, claiming that their personal belongings are being exposed to the public. This happens mostly when customers exit the retail stores after purchase. Customers rushing off to bus and taxi ranks have to queue inside the shop while security guards search the bags of other customers to ensure that there are no stolen items in the bag.
Some of the customers claimed to have been touched inappropriately during the search. According to other clients, the practice also diminishes the integrity of customers.
Zanele Mkhwanazi said:“It makes me feel like a thief. I understand searching a bag of the customers when they come inside but bag searching at the store exit is annoying. It inconveniences shoppers and I honestly feel that it has to come to an end. When we refused to be searched, security guards give us bad attitude.”
Attorney Michael Abraham said retail stores should have camera systems and CCTV in place in order to avoid the inconvenience.
“I understand that recently we have had incidents where bombs were planted at shops. In that vein, stringent security measures had to be taken to ensure the safety of the store and customers. Searching a bag when the customer enters the shop is understandable but searching customers at the exit of the store, in terms of the law, is not allowed.
“Stores should have CCTV camera systems in place to avoid this practice.” Abraham said. Abraham also said such shops must employ their own security to check for shoplifting or fit cameras [inside the store].
“But we cannot allow this searching process. Our dignity is more important than the products which they sell,” he added.
Ouma Ramaru from the office of the Consumer Goods and Services Ombudsman said, in terms of section 42(1) of the Criminal Procedure Act 51 of 1977, if the suspect commits an offence a security guard may intervene however security guards do not possess any special legal powers — they are considered to be the same as ordinary members of the public. They can either persuade persons they suspect of shoplifting to cooperate with their enquiries voluntarily or make an arrest in terms of section 42(1) of the Criminal Procedure Act 51 of 1977.
“The Consumer Protection Act 68 of 2008 created a number of requirements that have an impact on how suspected shoplifters are to be treated.
“A supplier or an agent of the supplier must not use physical force against a consumer, coercion, undue influence, pressure, duress or harassment or unfair tactics.
They are entitled to be protected from unfair, unreasonable, unjust or otherwise improper trade practices,” Ramaru said.
He also said a person suspected of shoplifting is usually approached by the store detective or some other member of staff and asked to go to the manager’s office.
“A shopper who is arrested by a store detective and acquitted may have grounds to sue for malicious arrest or malicious institution of criminal proceedings.
If the detective used force, even though the shopper did not resist, the shopper could sue for damages for assault. However, in order to succeed in the action, the shopper will have to prove that a charge was laid without reasonable cause.
“Increased damages might be paid to a shopper who was detained in the manager’s office for an unreasonable period or who suffered exceptional embarrassment or humiliation,”Ramaru added.
The ombudsman said if the detective or any other member of the staff accuses a customer of shoplifting in front of witnesses and it is later proved that the customer was not guilty of the offence, the shopper may be able to claim damages for defamation.
The ombudsman’s office advised retailers to ensure that the Service Level Agreements (SLAs) that they have in place with third-party security companies specify what is expected in the area of dealing with suspected shoplifters and provide for the consequences of non-compliance.