In February 1846, French poet and writer Victor Hugo narrated that, on his way to work one day, he saw police officers leading away a young man who had a loaf of bread under his arm.
The young man, who was arrested by the police, was dressed in mud-spattered clothes; his bare feet thrust into clogs; his ankles wrapped in bloodied rags in lieu of stockings.
According to bystanders, the young man was arrested for stealing the loaf of bread.
In one of his novels, Hugo writes about a certain Mr Jean Valjean, who was a peasant worker who had lost his job and had stolen bread to feed not just himself, but his sister and her seven kids.
He was sentenced to five years of hard labour.
World hunger is on the rise.
Approximately 44 million people around the world are living in poverty.
In South Africa alone, Stats SA estimated that 20% of households had inadequate access to food in 2017.
The numbers will continue to rise if we do not fix the broken global food system and put a halt to conflicts.
The number of people with inadequate access to food is bound to rise as a result of the Covid-19 coronavirus pandemic and lockdown regulations, which resulted in the laying-off of staff and temporary freezing of salaries.
In a situation where hunger has become widespread, there are bound to be individuals who will steal, for example, a loaf of bread, some cheese or milk to feed themselves or their families.
A 36-year-old Ukrainian national who was living in Italy, Roman Ostriakov, had goods hidden under his jacket as he paid for bread sticks.
A customer at the shop saw him hide the food under his coat and reported him. Ostriakov was arrested and convicted of theft, and sentenced to six months jail and a fine.
He appealed his conviction, but it was dismissed. In 2017, it was Italy’s Supreme Court of Cassation that overturned his conviction entirely.
In its judgment, the court noted the following: “The condition of the defendant, and the circumstances in which the seizure of merchandise took place, prove that he took possession of that small amount of food in the face of an immediate and essential need for nourishment, acting therefore in a state of necessity.”
Italy’s Supreme Court of Cassation, which is the country’s court of last resort and highest appeal court, essentially ruled that Ostriakov’s act was not unlawful.
This has not been the case in South Africa, and there is a need for urgent reform in the criminal justice system.
Theft is a serious offence and is prohibited in South Africa in terms of the Criminal Procedure Act.
The Van Heerden case was a landmark case in defining theft: “A person commits theft by false presences if she/he unlawfully and intentionally obtains movable, corporal property belonging to another without the consent of the person from whom she/he obtains it, such consent being given as a result of a misrepresentation by the person committing the crime, and appropriates it.”
The whole purpose of the law should aim to strike a balance in the scales of justice. The personal circumstances of the accused need to be considered on a case-by-case basis.
In the case of Thomas v S, the court on appeal held that “... the offence committed by the accused was not out of pure greed or to enrich himself, but it was in an attempt to get money to feed his family. He was also not characterised as a dangerous criminal against whom society needed protection and who had to be removed from society.”
In terms of the public interest, objective criteria need to be considered, such as preventing the perpetrator from committing another crime, rehabilitating the perpetrator and protecting society from future acts of theft. A petty offence, in principle, does not pose a serious threat to societal safety, any individuals or property.
In Thorne v S, the high court had to overturn a magistrates’ court’s harsh conviction of a young man who had been give a 12-month direct sentence for stealing seven blocks of cheese from a Pick n Pay store.
The court found that the month and 26 days the young man had served was enough punishment and that the magistrate had overemphasised the seriousness of the offence.
Strikingly, in the same judgment, the learned judge refers to a previous case in which another court, in convicting a man who had stolen loaves of bread, did not do so out of greed or to enrich himself, but to feed his family.
The South African criminal justice system prohibits theft of any kind, but is it not time for the justice system to reform in terms of dealing with cases of petty crimes such as stealing a box of milk?
Convictions of petty crime are often discriminatory and criminalise socioeconomic challenges, thus targeting the poor and marginalised.
Prosecution, fines or even imprisonment for individuals who are forced to turn to petty crime to survive should be abolished because this is never the answer to such situations.
The answer to such situations lies in government policies. Governments around the world should commit to undertake bold reforms, such as supporting women in promoting gender equality in agriculture to unleash their huge potential to help end hunger.
Khitsane holds a BA degree from Wits University. He is a final-year LLB student at the same university. Khitsane is also an alumnus of the LawWithoutWalls programme.
Kadima holds a BA degree and an LLB degree from Stellenbosch University and Wits University, respectively. He is pursuing an interdisciplinary master’s degree at Wits University with the Public Affairs Research Institute. Kadima also served as a student leader at both institutions.