It has become a relatively common trend for shoppers to snack on food from the shelves in supermarkets before they have paid for it at the till.

These shoppers will then ring up the empty packet or bottle, paying for the product.

This practice is controversial, however, with some arguing that you shouldn’t eat something until you’ve paid for it.

To find out whether you can “eat before you pay”, MyBroadband asked various supermarkets for their stance on this trend.

Shoprite and Checkers

Shoprite Holdings told MyBroadband that they discourage consumers from consuming products before paying for them.

“They may place themselves in a difficult position by forgetting to pay for it, and thus run the risk of being accused of shoplifting,” said Shoprite.

“Shoplifting is an ongoing challenge in the retail industry,” said Shoprite, adding that vast amounts of money are lost annually due to this.

Pick n Pay

Pick n Pay spokesman Janine Caradonna told MyBroadband that they don’t have any specific policy on this topic.

However, Caradonna did say that Pick n Pay “would always recommend customers pay for their goods before consuming them in store.”

Woolworths

Woolworths didn’t comment on whether or not they approved of the practice.

Instead, they told MyBroadband that eating or drinking products while shopping doesn’t happen frequently.

“If a customer does drink a cool drink or eat a food item in-store while shopping, then they must pay for the item with their other shopping at the checkout.”

Spar

Spar said that since it is a voluntary group, each retailer makes their own rules within parameters set down by Spar’s overarching structures.

“As a general rule our retailers do not allow people to first eat and then pay in their stores,” Spar added.

Legal provisions

While the supermarkets generally discouraged customers from the practice, they were hesitant to outright condemn it as illegal.

To learn more about the legal ramifications, MyBroadband spoke to two legal firms to learn more about where the law stands on this practice.

Norton Rose Fulbright

According to Rosalind Lake of firm Norton Rose Fulbright South Africa, the Consumer Protection Act does not actually deal with this scenario.

“In a sale of goods, you will only acquire ownership of the goods when all the conditions to the agreement have been fulfilled,” explained Lake.

“When consumers buy goods on a trade account or instalment sale agreement for example – the credit provider or supplier will usually retain ownership of the goods until they have been paid for in full as security for payment. In the context of a grocery store, however, there is no written agreement or special conditions that apply.”

Lake argued that despite the practice being situated within a grey area legally, retailers are unlikely to charge anyone with theft unless they leave without paying.

“Depending on your perspective, shoppers who consume goods whilst they are shopping have either stolen the goods or the retailer has impliedly extended them credit until the end of the shop when they will pay in full.”

“However, consuming the goods before you pay for them has become fairly common practice in South Africa and as retailers accept payment after scanning the empty containers it seems unlikely that they would attempt to charge anyone with theft.”

Hogan Lovells

Ian Jacobsberg of Hogan Lovells South Africa agreed that the CPA does not contain any provisions that have bearing on this scenario.

According to Jacobsberg, common law applies in this scenario, which they believe says that eating products before paying for them constitutes theft.

“Theft is defined in law as the intentional taking of another person’s movable property, without the owner’s permission and with the intention of permanently depriving the owner of the property,” Jacobsberg told MyBroadband.

“Where a person takes and uses any goods that are consumed by use, the consumer knows that he will be permanently depriving the owner (i.e. the store) of the goods and, if the owner’s prior permission was not sought, the consumer will be guilty of theft.”

However, Jacobsberg added that if the store is believed to be accepting of the practice, it would cease to be unlawful.

“Where the consumer genuinely and in good faith believes that, if the owner was aware, he would have consented to the taking of the property, the taking would not be unlawful, even if the consumer’s belief was mistaken.”

“In this regard, it should be questioned whether the owner of a large supermarket, where it is impossible for the owner to observe every shopper, would ever expressly say that they have no objection to shoppers consuming products in the store, as long as they offer to pay on their way out of the store,” said Jacobsberg.

He added that it was doubtful the court would favour the shopper in this situation.