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Case Law: Be careful not to make this entrapment mistake

by , 02 March 2016
So you're stuck with an employee who you strongly feel is stealing from your business.

In order to prove this, you scan through your options, and entrapment appears to be the only real way of doing so.

Now, while entrapment can be used, it's worth noting that it can be a VERY tricky area, as will be seen in the following case...

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Case Law: Cape Town City Council v The SA Municipal Workers Union (2000) 21 ILJ 2409 (LC)

What were the facts of the case?

In this particular case, two employees from the from the Council's electricity department by private investigators who were hired by the employer.

The employees were caught selling electrical cable, worth R300, to the private investigators for their personal benefit.

Because of this, they were dismissed.

What happened next?

In looking into the dismissal, the Court referred to Section 252A of the Criminal Procedure Act which deals with the admissibility of evidence.

Under this section, it was agreed that evidence can be admissible if the conduct of the trappers DIDN'T go beyond merely providing an opportunity to commit an offence. 

What did the Court decide?

The Court found that the employees were, in fact, innocent.

This is because it noted that the private investigators were OVERLY-persistent in eliciting the sympathy and co-operation of them, which in turn led them to commit an offence.

In other words, they went way beyond merely providing a simple opportunity for the employees, but instead almost forced it.

So the Court decided that the dismissals were unfair and the employees were subsequently reinstated.

What can you learn from this case?

Be careful when eliciting an offence. Do not go beyond simply providing the opportunity to commit an offence;

Also, try not to rely solely on entrapment as evidence for a dismissal, but rather try to get as much other incriminating and circumstantial evidence as possible for if the entrapment is deemed inadmissible.
 
*To learn more on entrapment, such as all the factors required to ensure entrapment evidence is admissible, page over to chapter E 02 in your Practical Guide to human Resources Management handbook, otherwise click here if you don't already have it.  


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