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Entrapment - how far is too far?

Take care when trapping dishonest employees.

Are you considering setting a trap to catch out a dishonest employee? If so, you would do well to consider the law on the issue, says Jenny Reid, director of iFacts.

“The legal situation is slightly confused,” says Reid. Cameras are a good case in point: “According to the publication ‘Labour Law for Managers – Practical Handbook’ (Fleet Street Publications, Randburg), you can use surveillance equipment to monitor employees, provided they know that it is there,” she says. The employees do not however have to agree to it being there.

There is however a law which prevents the illegal recording of a person’s communication without their specific permission, unless the person making the recording is party to the discussion itself. “This means in theory at least, that in an investigation when there is direct contact with the suspect the investigator can operate without fear of prosecution.”

The point is that the statute forbids the taped recording of an employee’s activity under most circumstances, while it seems as if cameras recording visual activities do not require specific permission. This potential loophole will doubtless be tested in court one of these days, says Reid.

A CCMA ruling also added to the debate: it established the principle that under certain controlled conditions, other forms of entrapment are justifiable. What this means in plain English is that if the trap has been set up in such a way that the perpetrator had a choice as to whether to commit the act or not – i.e., he or she was not coerced, tricked, framed or left with no other choice but to commit the act, and it led to direct evidence, not hearsay, then the information gathered in this way can be used in court.

“It is however still out of bounds to for example, instruct a suspect employee to make a call or visit to a client who you also suspect of being part of the syndicate so as to push him or her into committing an act,” says Reid. This would mean the employee has no choice but to make the call or visit as per your instructions. Even if the conversation at such a meeting were recorded, and all sorts of incriminating evidence were obtained this way, it would still be ruled inadmissible.

To take this example a step further: if a suspect employee voluntarily calls on a suspected syndicate client member, and the conversation is recorded, during which the employee says that he stole the goods and would be delivering them to the client that evening, then this is direct evidence and would not be considered entrapment.

“In other words, undercover surveillance which is not predicated on the suspect having no choice but to act in the way that he or she does, even if the investigating party is aware prior to the event of it happening, is admissible.” Reid says.

Entrapment can thus be a valuable tool, Reid says. “The trick is knowing when to use it and when not: a successful prosecution can stand or fall on that decision alone.”

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