How a shopping trip almost led to jail for absent-minded dad

When you're out shopping‚ has a child ever distracted you so much that you forgot to pay for an item in your trolley?

When you're 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‚ in vain‚ that his son knew about the supplement and had always wanted to taste it so he hid the bottle in a bag. He then forgot to pay for it along with the other items – and walked out of the shop. Guards pounced on him and did not buy his explanation.

He told the court that while at the store he was even further distracted when he got a call from the child’s mother when he was about to pay.

But the magistrate found that it was Makhalima’s plan to steal the item.

The high court upheld his appeal on Thursday and this time it was the magistrate who was lambasted.

“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 [Makhalima’s] 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 received distracted him because it ended before he had to pay.

“I think this reasoning is speculative and overlooks the possibility that during the whole process of unpacking goods from a trolley and getting ready to pay‚ a telephone can divert a person’s attention form 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 the child but that it was not necessary to hide the supplement.

“I think that this is somewhat artificial reasoning which imposes an ideal form of conduct on a person without taking into account varying responses to particular circumstances‚” the high court judgment read. “It is not improbable that a parent will be distracted by a child and will forget to pay for an item. There was no evidence on behalf of the state of the manner in which [Makhalima] put the supplement in the bag or what the child was doing when he did.”

The high court also found that the magistrate 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.