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Nalane Manaka Attorneys
1. 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 legal status of evidence obtained from Entrapment, Interception and Monitoring.
2. 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 ostensibly takes part therein. In other words, he creates the occasion for someone else to commit the crime.
3. 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 of course all this information is then used as evidence to subject the employee to disciplinary proceedings.
4. A case in point is that of S V Dube (2000) (2) SA 583. In this case, the employer (Toyota SA) was experiencing a tremendous amount of theft. When the efforts of its internal security staff to find out who the culprits were failed. The employer enlisted the services of S " a loss control consultant. S then went undercover and contacted X an employee of Toyota SA and asked him to provide him with a motor vehicle to which X agreed. S took photographs and recorded all their conversations in this respect. X eventually sold stolen vehicles to S.
5. On the basis of S evidence the photographic and the transcripts of the recordings, criminal charges were laid against S in the Regional Court and S was found guilty.
6. In this case the Judge had to decide three fundamental questions:
6.1 Whether the interception and monitoring prohibition act is applicable. The Judge held that "the act aims to prohibit third party monitoring only in this case, S participated in whatever he intercepted and participant monitoring is not covered".
6.2 Whether recording the meetings and taking of photographs infringed X's right to privacy. The Judge held that "to say that this was an invasion of privacy would be to apply an inappropriate extravagant notion of privacy".
6.3 Whether the evidence of a trap should be excluded: The Judge held that "in the light of the previous thefts, the failure by internal security to solve the problem, and the willingness of S to act on the first meeting with S the entrapment was a fair one and it should thereafter be allowed".
7. The abovementioned case was in the criminal Court, in the Labour Court case of Cape Town City Council v SAMWU (2000) 11 BLLR 1239 (LC) where dismissed employees where tempted into selling copper wire to two operatives. The Court held that although criminal cases can act as a guide line, the Labour Courts decides issues not only on law but on both law and fairness, the Judge went further and stated that a trap will be considered unfair if:
7.1 The trappers have no reasons to suspect that the employer's concerned are involved in some form of skullduggery at the time the trap is set.
7.2 If the trappers go any further than merely providing the employees with the opportunity to commit the offence.
7.3 If the use of the trap was not justified by the employees operational requirements.
8. In the case of Sugreen v Standard Bank of SA (2002) 23 ILJ 1349 (CCMA) the Commissioner held the view that "the use of the employer' telephone and e-mail were legitimate areas of interest to the employer where the employee was suspected of misconduct and found that there was not cognizable breach of the Applicant's right to privacy. The Commissioner took the following facts into account:
8.1 The recording was not aimed at entrapping the employee into committing a crime.
8.2 Three were few other methods of securing evidence.
8.3 The recording was not part of an ongoing monitoring.
8.4 It was not undertaken by the employer itself.
8.5 It was made during office hours using the employer's telephone.
9. In the above mater an outside service provider had recorded a telephone conversation where the employee accepted a bribe.
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 the trap targeted specific individuals, whether the trappers persuaded the accused, whether the recording is part of an ongoing monitoring, whether it was participative or third party monitoring etc. When after considering the abovemetioned facts it is decided that the trap interception or the monitoring was fair, evidence of such will be admissible.
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