Falsely Accused of Shoplifting in South Africa? Know Your Rights Against Unfair Discrimination

Written by Roy Bregman, an admitted attorney with over 51 years of experience in litigation and dispute resolution.

Introduction

On a distressing afternoon, you and your mother visit a local pharmacy, purchase an item, and are then detained by staff in a backroom, accused of theft. Despite your attempts to resolve the situation, which only de-escalated after an external manager intervened, you are left feeling humiliated and profiled. The store’s CEO calls to apologise, promising action, but the formal apology you requested never arrives, and the initial "gaslighting" email from the pharmacy leaves a bitter taste. Now, every time you enter a store, a wave of anxiety hits. This experience, which you believe was racially motivated, was not just a misunderstanding—it was an infringement on your dignity.

If this story resonates with you, know that South African law provides powerful tools to protect you. This article outlines your legal rights when faced with a false accusation of shoplifting, particularly when you suspect unfair discrimination, and explains the practical steps you can take to seek justice.

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Falsely Accused of Shoplifting: Unpacking Your Legal Rights

Being wrongly accused of a crime is a deeply violating experience. When that accusation is coupled with the belief that you were targeted because of your race, it strikes at the core of your right to be treated with dignity and equality. Fortunately, South Africa's legal framework offers clear avenues for recourse.

Your Primary Legal Shield: The Equality Act

The cornerstone of your protection is the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, commonly known as the Equality Act. This legislation was specifically designed to uphold the constitutional promise of equality.

Its main purposes are to:

• Prevent and prohibit unfair discrimination, hate speech, and harassment.
• Promote equality and human dignity for all.
• Provide accessible and effective remedies for those whose rights have been violated.

The Act explicitly forbids discrimination on "prohibited grounds," which include race, colour, gender, and ethnic or social origin. Discrimination is defined as any act or omission that directly or indirectly imposes burdens, withholds benefits, or disadvantages a person based on one of these grounds.

What Constitutes Unfair Discrimination in a Retail Setting?

Section 7 of the Equality Act specifically addresses unfair discrimination on the grounds of race. This includes actions like providing inferior services to a certain racial group or denying access to opportunities and services.

In your situation, being detained, accused without sufficient proof, and treated with suspicion could be seen as imposing a "burden" and "disadvantage" based on perceived race. The law is clear: neither the state nor any private person or entity, including a retail store, may unfairly discriminate against anyone. If it can be shown that the store's actions were influenced by your race—a concept known as prima facie evidence—the legal burden shifts to the store to prove that their actions were not discriminatory or were, for some reason, fair.

Avenues for Seeking Justice

If you have been a victim of unfair discrimination, you are not powerless. The law provides several formal channels to hold the responsible parties accountable.

1. The Equality Court

This is often the most effective forum for these matters. Equality Courts are established at magistrates' courts and are designed to be accessible, even without a lawyer. They have broad powers to order remedies that fit the situation. For a case like yours, the court can order:

• A formal, unconditional apology.
• Payment of damages for financial loss, impairment of dignity, and emotional or psychological suffering. Your ongoing anxiety when entering stores is a direct form of psychological harm that can be quantified.
• An order to stop the discriminatory practices, which could include mandating specific staff training on how to handle customers without prejudice.
• An audit of the store's policies and practices to prevent future incidents.

2. The South African Human Rights Commission (SAHRC)

You can also file a complaint with the SAHRC. This independent body investigates human rights violations and can assist you by investigating your complaint, facilitating a resolution, or even supporting your case in the Equality Court.

3. Criminal Charges via the Hate Crimes Act

If the incident involved a criminal act, such as wrongful detention (unlawful deprivation of liberty), and was motivated by prejudice, it may fall under the Prevention and Combating of Hate Crimes and Hate Speech Act. Reporting the matter to the South African Police Service (SAPS) allows for a criminal investigation. It is crucial to state your belief that the act was racially motivated so it can be recorded as a potential hate crime.

Conclusion: You Have a Strong Case to Pursue

Based on your account, you have a compelling case. You were detained, accused of stealing an item you had paid for, and have suffered ongoing psychological harm. The CEO's verbal apology, while an admission of fault, does not absolve the company of its responsibility to provide a formal, written apology and take concrete remedial action. The fact that you feel you were racially profiled is the critical element that brings this matter squarely within the scope of the Equality Act.

Document all evidence, including your email correspondence, proof of the CEO’s call, and a record of the psychological impact this has had on you. With this evidence, you are well-positioned to approach the Equality Court or the SAHRC to seek the justice and resolution you deserve.

 

Frequently Asked Questions (FAQ)

Q1: Do I need a lawyer to go to the Equality Court?
No, the Equality Court process is designed to be accessible to individuals without legal representation. The clerks of the court can assist you in filing your complaint. However, if your case is complex or you are claiming significant damages, consulting an attorney is highly recommended.

Q2: What kind of evidence should I collect if I'm falsely accused of shoplifting?
Preserve everything. This includes the receipt for your purchase, any correspondence with the store (like emails), screenshots of phone calls from management, and names of employees or witnesses. If you suffer from anxiety or other psychological effects, a report from a doctor or psychologist is powerful evidence.

Q3: Is a verbal apology from the CEO enough?
While a verbal apology is an acknowledgment of wrongdoing, it does not prevent you from pursuing further legal action. You are still entitled to seek remedies like a formal written apology and damages for the harm done to your dignity through the Equality Court.

Q4: How long do I have to file a complaint for unfair discrimination?
It is always best to act as soon as possible while the evidence and your memory of the events are fresh. While the Equality Act does not specify a strict prescription period in the same way as other civil claims, delaying too long could potentially weaken your case.

 

A Landmark Ruling for Equality: Men Can Now Take Their Wives' Surnames in South Africa

 

Written by Roy Bregman, an admitted attorney with over 51 years of experience in family and matrimonial law. Read Roy's full biography.

For decades, South African law has upheld a tradition rooted in patriarchal history: upon marriage, a woman could choose to take her husband's surname, but a man was not afforded the same right to take his wife's. This long-standing inequality has now been overturned by a significant judgment from the Constitutional Court. In the case of Jordaan and Others v Minister of Home Affairs, the court declared a key section of the Births and Deaths Registration Act unconstitutional, paving the way for true equality in how couples choose their family name.

This decision marks a pivotal moment in South African family law, dismantling a legal relic of a bygone era and affirming the constitutional rights to equality and dignity for all spouses, regardless of gender.

The Old Law: A Legacy of Patriarchy

The legal framework governing surname changes after marriage was contained in section 26(1) of the Births and Deaths Registration Act 51 of 1992. This section created a clear and unequal distinction based on gender.

• For Women: The Act explicitly allowed a woman, after marriage, to assume her husband’s surname, resume a surname she had before, or add her husband's surname to her own (creating a double-barrelled name) without needing special permission from the Director-General of Home Affairs.
• For Men: The Act was silent. A man who wished to assume his wife's surname could not do so automatically. He would have to apply to the Director-General for a change of surname, a process that required a "good and sufficient reason," which, under the regulations, did not include a change in marital status for a man.

The court noted that this practice was a colonial import, rooted in Roman-Dutch law and the English concept of "coverture," where a woman's legal identity was subsumed by her husband’s upon marriage. This reinforced the idea of the husband as the head of the household and the woman as a subordinate, akin to a minor. While South Africa has since abolished the concept of marital power, this provision in the Act remained a stubborn remnant of that patriarchal philosophy.

The Jordaan Case: A Challenge to Tradition

The constitutional challenge was brought by two couples who faced this legal barrier.

• The Facts:
• Jana Jordaan and Henry van der Merwe married in 2021. They had decided that Mr. van der Merwe would take Ms. Jordaan's surname to preserve her family name, as her parents were deceased. The Department of Home Affairs informed them this was not possible.
• Jess Donnelly-Bornman and Andreas Nicolaas Bornman wished to combine their names into the double-barrelled surname "Donnelly-Bornman." They were advised that only the female spouse could amend her surname in this way.

These couples argued that the law unfairly discriminated against them based on gender, violating their constitutional rights to equality (section 9) and dignity (section 10).

The Constitutional Court's Decision:

The Court unanimously agreed with the applicants and confirmed the High Court's order of constitutional invalidity. Justice Theron, writing for the court, found that the law was discriminatory and unjustifiable in an open and democratic society.

The court's reasoning was clear:

1. Irrational Differentiation: The law differentiated between men and women without any legitimate government purpose. Preventing a man from taking his wife's existing surname does not serve the goal of regulating the creation of new surnames.
2. Unfair Discrimination: The discrimination was found to be unfair to both men and women. It deprived men of the choice to define their identity and structure their family as they see fit. For women, it was more insidious, reinforcing the patriarchal notion that only a man's name is worthy of being the family name, thereby giving it a superior status.
3. Violation of Dignity: The court emphasized that the choice of a surname is a matter of defining personal significance. Prohibiting this choice impairs an individual's dignity and their ability to achieve personal fulfilment.

The New Rules: What Spouses Can Do Now

The Constitutional Court declared section 26(1)(a)-(c) of the Act unconstitutional. However, to avoid a legal vacuum, the declaration of invalidity has been suspended for 24 months to give Parliament time to amend the legislation.

During this 24-month period, the court has put in place an interim remedy. The gendered language of the Act is temporarily replaced with gender-neutral terms. This means that, with immediate effect:

• Any person, after marriage, may assume the surname of their spouse.
• A married or divorced person, or a widower/widow, may resume any surname they previously bore.
• Any person may add their spouse's surname to their own.

Should Parliament fail to enact new legislation within the 24-month period, this interim order will remain in effect.

Conclusion

The Jordaan judgment is a significant victory for gender equality in South Africa. It dismantles an archaic and discriminatory law, aligning the country's legal framework with the constitutional values of dignity, freedom, and equality. Spouses now have the freedom to make personal, consequential choices about their family identity without being constrained by outdated gender stereotypes. This ruling ensures that in marriage, both partners stand on an equal footing when it comes to one of the most fundamental aspects of identity: their name.

Landmark SCA Ruling: Social Media Defamation Law in South Africa – Harman v Strydom Explained

 

Written by Roy Bregman, admitted attorney with over 51 years' experience in South African civil litigation and social media law.

Introduction: Understanding the Limits of Online Free Speech

South Africa’s Constitution strongly protects the right to freedom of expression, but this right is subject to essential legal limits, especially when one person's online statements threaten or harm another’s rights. In the digital age, courts have become increasingly active in policing the boundaries between free expression and unlawful conduct. The Supreme Court of Appeal (SCA) decision in Francois Jurie Nicolaas Harman v Pieter Hendrik Strydom [2025] ZASCA 108 is now a leading authority on what South Africans can and cannot say online, and what remedies are available to those targeted by harmful posts.

Legal Principles: Free Speech, Defamation & Online Harm

South Africa’s Approach to Social Media Law

• Section 16 of the Constitution gives everyone the right to freedom of expression, but excludes protections for hate speech, incitement to violence, and unfair discrimination.
• Defamation law prevents individuals from making statements that unjustifiably injure another’s reputation.
• POPIA (Protection of Personal Information Act) governs privacy and personal information but does not allow people to abuse privacy laws to shield themselves when spreading defamatory or life-threatening content.

The Role of Urgent Applications and Interim Relief

Courts can issue interim protection orders—sometimes without advance notice to the alleged wrongdoer (ex parte)—to prevent immediate harm. However, final orders can only be made after the affected party is given a chance to respond, fulfilling the constitutional audi alteram partem (fair hearing) rule.

Case Law: Facts, Proceedings, and Supreme Court of Appeal Decision

The Background: A Debt Dispute Turns to Online Vilification

Mr Harman, after defaulting on a multimillion-rand loan and suffering liquidation, became embroiled in legal proceedings led by attorney Mr Strydom. Upset at these actions, Harman posted accusations on Facebook, alleging unethical conduct by Strydom and Land Bank officials. The posts sparked a flood of abusive, life-threatening, and defamatory comments from Harman’s followers.

Escalation: Protection Order and Further Disregard

Strydom obtained a protection order barring Harman from further online harassment. When served, Harman escalated by posting photos of police and court officials on Facebook and denouncing Strydom, which in turn led to more hostile comments from his followers that threatened violence and included racist insults[1].

High Court Intervention: Swift and Protective Measures

Given the escalating online attacks, Strydom applied ex parte (urgently and without prior notice) for:

• Immediate removal of all defamatory and threatening social media content.
• Identification and disclosure of the people involved in posting threatening comments. The High Court granted interim relief (a rule nisi) and set return dates for Harman to respond, ultimately making these orders final after hearing full argument.

Issues on Appeal: Was the Process Fair and Lawful?

Harman challenged the orders, arguing:

• His constitutional right to be heard (section 34) was breached.
• The POPIA and his privacy rights prevented him from disclosing information on other Facebook users.

Supreme Court of Appeal’s Analysis and Ruling

Right to Be Heard: Was Audi Violated?

The SCA found that Harman’s right to be heard was fully respected:

• Interim relief via ex parte order is constitutionally permitted, especially if there is risk of evidence being destroyed or harm being suffered if notice is given in advance.
• Harman was given ample opportunity to respond (including the ability to file an answering affidavit and argue against final relief at a later date).
• Procedural avenues like appeals, reconsideration (Rule 6(12)(c)), and rescission (Rule 42) were available; Harman failed to properly use these remedies.

Privacy, POPIA, and Disclosure of Other Users

The SCA rejected Harman’s invocation of POPIA and privacy:

• There is no protection for identity information of individuals who themselves commit or aid in the commission of harmful online acts.
• Disclosing the identities of individuals involved in defamatory, threatening, or unlawful online activities is justified to allow victims to pursue legal remedies and protect their rights.

Real-World Limits on Freedom of Expression

It was emphatically held that freedom of expression ends where it infringes another’s right to safety, dignity, and reputation. Harman’s posts and the conduct they encouraged were not constitutionally protected and caused real harm to Strydom.

Judgment

The SCA dismissed the appeal with costs (including costs of two counsel), reasserting the courts’ willingness to order immediate removal of dangerous posts and revelation of offenders, and confirming judicial protection against online hate, harassment, and defamation.

Conclusion: The Significance of Harman v Strydom

The Harman v Strydom decision is now a landmark authority confirming that South African law takes online threats and defamation seriously. Every person using social media:

• Must respect the limits on freedom of expression—harmful, life-threatening, or reputationally damaging digital conduct can and will be met with swift legal action.
• Victims are empowered to seek urgent court protection, removal of content, and identification of those involved.
• The protection of privacy and personal information under POPIA does not extend to those enabling unlawful acts online.

 

What Are Your Rights If the Car You Bought Has Defects?

 

The Problem

You’ve bought a car from a dealer (not a private seller), and something goes wrong with it. Maybe:

• The paintwork is flawed
• The steering feels unsafe and the car swerves
• The brakes don’t work properly
• The car puts you, others, or property at risk

Even if no injury or damage has occurred, the vehicle may still fail to meet the required standards of quality and safety.

This is where the Consumer Protection Act (CPA) comes in.
 

·        Section 55(2): requires that goods must be suitable for their purpose; be of good quality, in working order, and free of defects; and be useable and durable.

·        Section 56(2): says that a consumer has six months from the date of delivery of the motor vehicle to return the goods to the supplier without cost or penalty, and the consumer can elect to have it repaired, replaced, or refunded.

·        Section 56(3): if a consumer requests a repair, or the six-month period has lapsed and the motor vehicle gets a repair, and the issue persists then a consumer (within three months from the date of repair) can request a refund or replacement of the motor vehicle.

·        These sections apply in addition to warranties on the motor vehicle.
 

Next Steps and Possible Sanctions – which we can assist you with

·        Contact the supplier and try to resolve it under the CPA.

·        Complain to MIOSA – the Motor Industry Ombudsman – at www.miosa.co.za

·        Contact the Provincial Consumer Affairs Offices, per province.

·        Approach the Gauteng Consumer Court.

·        Refer the matter to the National Consumer Commission – www.thencc.gov.za

·        If the claim is under R20,000, try the Small Claims Court

·        If all else fails, take legal action (you’ll need a lawyer for this) 

Need Help?

Let’s talk about your rights and what steps you can take.

📍 www.bregmans.co.za

☎️ 011 646 0335

✉️ info@bregmans.co.za

 

Naming and Shaming on Social Media: South African Defamation Law Explained

 

Learn how South African law treats defamation on social media, including key legal principles, real court cases, and practical advice for individuals and businesses.

Written by Roy Bregman, an admitted attorney with over 51 years’ experience in South African law, including defamation, social media law, and privacy.

Naming and Shaming on Social Media: What South African Law Says

Introduction: The Legal Principles of Defamation and Social Media

Social media has changed the way we communicate, giving everyone a platform to share opinions, experiences, and grievances instantly. But with this power comes responsibility. In South Africa, posting about someone or a business online, especially to “name and shame”, can have serious legal consequences. Defamation law applies to Facebook, X (formerly Twitter), Instagram, WhatsApp, and any other platform where you can publish information about others.

Defamation is when someone wrongfully and intentionally publishes content (written, spoken, or visual) that is seen by at least one person, other than the subject, that unfairly harms another’s reputation in the eyes of reasonable people or lowers a person’s standing in the community.

Yes, that includes status updates, comments, memes, and retweets. If you “like,” “share,” or “retweet” a defamatory post, or even tag someone in one, you could also be held liable. The law is clear: what you say online is treated the same as what you would publish in a newspaper or say in public.

The Role of Truth and Public Interest

Many people believe that telling the truth is always a defence. This is not correct. In South African law, the statement must be both true and in the public interest. If you post about someone’s private affairs, even if true, but it doesn’t serve the broader public good, you could still be found liable for defamation.

Hate Speech and Social Media

Hate speech is any expression that incites violence or discrimination against a protected group (race, gender, religion, etc.). Freedom of expression, protected by the Constitution, is not absolute. It does not cover defamation, hate speech, or incitement to violence, and such posts can lead to both civil and criminal liability.

Case Law: Real Examples from South African Courts

The Cawood Attorneys Case

A South African law firm, Cawood Attorneys, was falsely accused on Facebook of stealing COVID-19 funds and acting dishonestly. The businesswoman who posted these allegations was ordered by the Middelburg High Court to remove the posts and refrain from making further defamatory remarks. The court also held Facebook accountable, ordering it to uphold the law regarding defamatory remarks and hate speech. The businesswoman was ordered to pay the legal costs.

Isparta v Richter (2013)

In this case, the court awarded damages for defamatory comments made on Facebook. The defendant had tagged another person in the defamatory post. The court found that not only the author but also those tagged or associated with the post could be held liable. This case set a precedent that sharing, liking, or tagging defamatory content can make you legally responsible.

Heroldt v Wills (2013)

Heroldt sought an interdict against Wills for posting a defamatory Facebook message accusing him of being an unfit parent. The court found the post defamatory, as it would lower Heroldt’s reputation in the eyes of reasonable people. The court ordered Wills to remove the post and pay legal costs.

Dutch Reformed Church v Sooknunan

The creator of a Facebook page was held responsible for defamatory messages posted by others on that page.

Casilli v Facebook SA

The court addressed whether Facebook SA or Facebook Inc. was responsible for removing defamatory content. Eventually, Facebook Inc. agreed to remove the content after a valid court order was obtained.

Practical Guidance: How to Avoid Legal Trouble on Social Media

Think Before You Post

• Always check your facts before posting anything negative about someone or a business.
• Ask yourself: Is this true? Can I prove it? Is it in the public interest, or just interesting to the public?
• Avoid posting anything that could be seen as incitement, hate speech, or discrimination.

What To Do If You’re Defamed

• Request the person to remove the post.
• If they refuse, you can apply to court for an order to have the post removed and to prevent further defamatory posts.
• You can also claim damages for harm to your reputation.

Employer Policies and Dismissal

• Many employers have social media policies. Employees have been dismissed for derogatory posts about their company, colleagues, or management.
• Even private comments or sharing internal business matters can result in disciplinary action.

Conclusion: The Power and Peril of Social Media

Social media is a powerful way to share information and call out wrongdoing, but it can also be legally risky. Naming and shaming someone online might feel like justice, yet it can easily amount to defamation or hate speech, which the law treats as seriously as anything published in a newspaper. South African law protects every person’s dignity and reputation, and even if what you say is true, it must also serve the public interest to be a valid defence. You could be held legally responsible not just for posting, but also for sharing, commenting on, or even liking harmful content. While platforms can be ordered to remove defamatory posts, the main responsibility rests with you, so think carefully before you hit "post."

When in doubt, seek legal advice before posting.

Frequently Asked Questions (FAQ)

Q: Can I get sued for naming and shaming someone on Facebook?
A: Yes. If your post harms someone’s reputation and is not both true and in the public interest, you can be sued for defamation.

Q: Is it defamation if what I say is true?
A: Not always. The statement must also be in the public interest, not just interesting to the public.

Q: What should I do if I’m defamed online?
A: Ask the person to remove the post. If they refuse, seek legal advice and consider applying to court for an order to remove the content and prevent further posts.

Q: Can I be held liable for sharing or liking a defamatory post?
A: Yes. Sharing, liking, or tagging someone in a defamatory post can make you legally responsible.

Q: Are there defences to defamation?
A: Yes. Truth and public interest, fair comment, and privilege are possible defences, but they have strict requirements.

Need advice?
Let’s chat about your options.
👉 www.bregmans.co.za
☎️ 011 646 8411 | ✉️ info@bregmans.co.za