Misconduct such as theft is by its very nature not easy for employers to identify, simply because it is not intended for them to find out. It is, therefore, common practice for employers to resort to trapping the employees by for instance bugging their phones, installing hidden cameras or utilizing any other method. This is an aspect that affects us all and maybe we should discuss the legal status of evidence obtained from Entrapment.
Often employers get confused between the method of trapping the employee (which is legal) and illegal entrapment. Entrapment occurs where the employer lures the employee into carrying out misconduct that the employee would not have carried out but for the ensnaring methods of the employer.
The most common form of entrapment is where an employer uses a person who with a view to securing the conviction of another, proposes certain criminal conduct to the employee, and himself seemingly takes part therein. In other words, he creates the occasion for someone else to commit the crime.
In executing the trap the “trapper” will normally record certain
occurrences in the process of the crime being committed, this may be telephone
conversations, meetings or certain conduct by the employee in question and of course
all this information is then used as evidence to subject the employee to
disciplinary proceedings.
For example, in the case of Mbuli v Spartan Wiremakers cc (2004, 5 BALR 598) the employer set the suspected employee up by getting a colleague to ask the suspect to supply him with wire for private purposes. The suspect then sold to the colleague, at half the normal price, some were taken from the employer’s stock. The employee was caught, disciplined and dismissed. He complained to the bargaining council that he had been entrapped illegally because the employer had set him up.
The arbitrator found that the trap was a fair and legal one because:
- The employer had suffered a serious shrinkage problem;
- The trap was set due to reasonable suspicion against the employee;
- The employer did not go beyond giving the employee the opportunity to commit the offence.
That is, the trapper did not pressure the suspect into supplying the wire, did not use persuasive measures such as comradeship or sympathy and did not exploit any weakness of the suspect employee. This case reveals the subtle factors that can distinguish between legal trapping and illegal entrapment.
The Labour Court also provides guidelines in Cape Town City Council v SAMWU (2000) 11 BLLR 1239 (LC) where dismissed employees were tempted into selling copper wire to two operatives. The Court held that although criminal cases can act as a guideline, the Labour Courts decides issues not only on the law but on both law and fairness, the Judge went further and stated that a trap will be considered unfair if:
- The trappers have no reasons to suspect that the employers concerned are involved in some form of trickery at the time the trap is set;
- If the trappers go any further than merely providing the employees with the opportunity to commit the offence;
- If the use of the trap was not justified by the employee’s operational requirements.
Conclusion
The common denominator in the abovementioned cases is that in order for trapping and interception methods to be admissible they need to have been conducted in a fair manner.
The consensus is that fairness would be pronounced by facts like:
Whether an average person in the same position would have been induced to the commission of the offence;
- The degree of persistence and the number of attempts to induce the commission of the offence;
- The type of inducement, including the degree of any deceit, trickery or misrepresentation used;
- Whether the conduct involved exploitation of human characteristics such as emotions, sympathy and friendship, or exploitation of the accused’s personal, professional or economic circumstances, to increase the probability of the commission of the offence;
- Whether a particular vulnerability (like a mental handicap or substance addiction) was exploited;
- Any threats (express or implied) towards the accused;
- Whether before the trap was set, there was reasonable suspicion that the accused had committed a similar offence;
- Whether the initiator of the trap acted in good or bad faith;
- Any other relevant factor.
Due to the technical nature of these distinctions, employers are strongly advised not to use traps until they have consulted with their respective SEESA office.
ABOUT THE AUTHOR
Hendrik van Niekerk obtained his LLB degree from the University of Pretoria in 2008 and was admitted as an attorney in 2010. Mr. van Niekerk joined SEESA Pretoria on 1 April 2010 as a legal advisor and was promoted to a senior legal advisor in 2012.