How to go about entrapment to ensure the evidence is admissible and legal when suspecting an employee of misconduct.

1. Entrapment:
A guide for employers suspecting
misconduct

2. Entrapment:
When the employer lures the employee into
committing misconduct that the employee would
not have committed, but has done so due to the
ensnaring methods of the employer.
The evidence obtained by the employer can be
of any kind such as video evidence, recorded
telephone conversations, witnesses, etc.

3. Findings from
case studies

4. Going beyond “providing an opportunity”:
In Cape Town City Council v SAMWU & others employees were
entrapped after several attempts of pursuasion from the entrappers.
The Labour Court determined that they obtained the evidence
improperly and it was thus inadmissable because they went beyond
merely providing an opportunity.

5. Fair and legal evidence:
In Mbuli v Spartan Wiremakers CC the employer caught an employee
selling wire at half the normal price to a colleague in a trap set up by
the employer. It was found that the trap was fair and legal due to the
serious shrinkage problem of the employer, reasonable suspicion
against the employee and that the employer did not go beyond
encouraging the employee to commit the offence.

6. Within the employer’s interest:
In Sugreen v Standard Bank of SA (2002) a supected employee used
company property to accept a bribe. The employer used a recorded
telephone conversation of the employee on the employer’s telephone
as evidence. This evidence was considered admissable due to the
fact that the employer’s areas of interest are his telephones and
email facilities.

7. 6 guidelines for
employee entrapment

8. 1
Monitor the suspicious employee.

9. 2
Act on suspicious behaviour.

10. 3
Evidence gained from the trap cannot be
the only evidence – it must be supported by
other corroborating evidence of the
misconduct.

11. 4
Do not go beyond giving the employee the
opportunity to commit the offence.

12. 5
Avoid trapping employees by offering them
rewards to commit misconduct which they
normally wouldn’t have committed.

13. 6
Do not ‘engineer’ a situation which
pressures or induces the employee to
commit the misconduct.