Entrapment: To trap or not to trap

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It is an all too familiar picture in a Hollywood movie where a honeytrap is laid for the unsuspecting victim in which he all too readily falls. But is the trap always snared by the villain or does the hero also have this trick up his sleeve…

What is entrapment? Entrapment can, in layman’s terms, be defined as the action of tricking someone into committing a crime in order to secure their prosecution.

In the social, political and societal spheres where normative values of honesty, integrity and goodwill are seemingly fading and dishonesty, corruption, bribery and fraud are glaringly becoming the norm, it is easy to understand why companies need to get rid of the rotten apples by any means possible. The associated cost of the rotten apple experienced by the likes of KPMG and McKinsey is unquantifiable yet very tangible on the respective companies’ bottom lines.

So as an employer, whether in the corporate, retail, logistics, or warehousing sector to name a few, the threat of dishonesty, theft and fraud is always lurking. Companies have employed plans such as company values, integrity tests, and risk units to combat such evils yet it can be difficult to devise a strategy that has a positive effect.

Many companies have no alternative but to employ highly specialised “risk” units, that provide undercover detective work to dismantle syndicates that is severely impacting the company financially. One of the tactics employed by these risk units is entrapment, but is it legal to do so?

The brief answer is yes, however there are always terms and conditions attached. The courts have accepted that an employer may set traps where there is a suspicion of misconduct. However the trap must be fair and used as a last resort. In the familiar case of Cape Town City Council v SAMWU [2000] 11 BLLR 1239 (LC), the Labour Court indicated that law enforcement would be impeded if evidence obtained from trapping was never allowed. The court stated that a trap will be unfair if:

  • The trappers have no reason to suspect that the employees concerned are involved in some form of misconduct/criminal activity at the time the trap is set (a trap can only be set for employees who are already under suspicion);

  • The trappers go further than merely providing the employees with the opportunity to commit the offence (in this case the trappers made several attempts to induce employees picked at random to steal copper cable under the pretext of wanting to use the cable to run electricity of a house for underprivileged children); and

  • The use of the trap was not justified by the employer’s operational requirements.

In SATAWU obo Radebe v Metrorail Wits [1998] 1 BALR 88 (IMSSA), an arbitrator found that an employer was allowed to embark on honesty exercises to rid itself of dishonest behaviour, provided they were legal, fair and proper. In this case, ticket collectors were warned in advance that honesty checks would be conducted. Here a trapper handed marked money to a collector who put the money in his pocket and issued a ticket. The court found that this exercise was proper because the employer had been experiencing perpetual financial losses and had informed employees beforehand that honesty tests would be conducted.

The Criminal Procedure Act 51 of 1977, section 252A, has provided a long and arduous criteria for the setting of traps, which is of importance for both criminal and employment cases. A number of important points that arise therefrom include:

  • the availability of other techniques for uncovering the offences;

  • whether the average person in the same position would have been induced into committing the act;

  • the type of inducement used, including the degree of deceit, trickery, misrepresentation or reward;

  • the degree of persistence and number of attempts made to trap the person; and

  • whether the conduct involved an exploitation of human characteristics such as emotions, sympathy or friendship or an exploitation of the accused’s personal, professional or economic circumstances in order to increase the probability of the commission of the offence etc.

The aforementioned list provides an insight into the workings of a trap and that evidence obtained shall be admissible if the conduct of the trappers does not go beyond providing an opportunity to commit an offence.

In a more recent ruling of General Industries Workers Union of South Africa obo Mazamela & others / Rentech South Africa [2012] 8 BALR 779 (CCMA), the arbitrator confirmed that entrapment can be used as a last resort to uncover misconduct in the workplace. In this case, the employer had suffered a stock loss of R4m and an undercover agent was used to trap the employees. The employees’ defense of an unfair entrapment failed as they were not persuaded by the agent to commit the crime. The dismissal of the five employees were therefore found to be procedurally and substantively fair.

From case law it is clear that employers are permitted to utilise the tactic of entrapment should it adhere to the criteria set out above. Employers are urged to exhaust all techniques to uncover participants of misconduct before turning to traps. One must remember that even though the bad apples are costing the company financially, they have a duty to always act in good faith when setting traps to ensure that innocent bystanders do not become the victims.

Therefore, the question ‘to trap or not to trap’ is less relevant than the question of ‘when and how to trap’.

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