Entrapment

What is a police trap, and is entrapment a valid defence where a crime has been committed?

You’ve probably heard the term “entrapment,” especially in movies. It usually refers to situations where the police play a role in a supposed criminal committing an offence. In South African law, entrapment (more appropriately referred to as a police trap) involves a scenario in which law enforcement officials or their agents set up a situation to obtain evidence of a person’s commission of a crime. While controversial, the use of police traps is recognised as a necessary tool for uncovering “victimless” crimes, such as drug trafficking, illicit diamond trading, and corruption, which are typically committed in secret by sophisticated syndicates and involve no direct complainant.

Entrapment as a defence

A critical distinction in South African jurisprudence is that entrapment is not recognised as a ground of justification in substantive criminal law. This means that the fact that a person was caught via a trap does not make their conduct lawful or justified. They have still committed an act that meets the definitional elements of a crime.

Instead, the legal “defence” of entrapment operates primarily through the law of evidence. In certain circumstances, a court may rule that evidence obtained through entrapment is inadmissible, which would/could effectively lead to an acquittal not because the act was legal, but because the evidence of it cannot be used.

The primary legislative control over police traps is section 252A of the Criminal Procedure Act (“CPA”).¹ This section grants courts the discretion to exclude evidence if it was obtained in a manner that “goes beyond providing an opportunity” to commit a crime. The law distinguishes between two extremes where the police can either provide you with an opportunity to commit a crime, or they incite or persuade you to commit the crime.²

If the accused is already prone to committing a certain type of crime and the trap merely provides the opportunity to do so without active incitement, the evidence is generally admissible. However, if the accused is initially unwilling and the trap official overcomes this resistance through instigation, persuasion, or coercion, the court is far more likely to exclude the evidence.

Take, for instance, a police officer who goes undercover and poses as a buyer of stolen cellphones. If the officer approaches, say, Ahmed, who is known to regularly sell stolen phones, and asks, “Do you have any stolen phones for sale?”, Ahmed immediately agrees, produces the phones, and settles on a price. In these circumstances, Ahmed was already willing and inclined to commit the crime. The officer did not persuade or pressure him, but merely provided the opportunity to do so. The evidence would therefore likely be admissible.

However, if the officer approaches, say, Sharif, who has never sold stolen goods, and asks whether he can obtain a stolen cellphone, Sharif refuses and explains that he does not engage in such conduct. The officer nevertheless persists, and offers a substantially higher price, repeatedly pleading desperation, and suggesting that “no one will ever find out.” Eventually, as a result of this pressure, Sharif agrees. In these circumstances, Sharif was initially unwilling to commit the offence, and the officer overcame his resistance through persuasion and inducement. The court is therefore far more likely to exclude the evidence, as the crime was effectively created by the police trap.

Admissibility of evidence obtained through a police trap

To determine if a trap went too far, section 252A(2) of the CPA requires the court to consider various factors, including:

The nature of the crime and its prevalence;
The type of inducement used and its degree of persistence;
Whether the conduct exploited the accused’s emotions or economic circumstances; or
Whether the official had a prior reasonable suspicion that the accused had committed similar crimes.

Even if the conduct is found to exceed mere opportunity-providing, the court may still allow the evidence if it finds that its admission would not render the trial unfair or be detrimental to the administration of justice. This requires a balance between the public interest in detecting organised crime and the individual’s right to a fair trial.

Under section 252A(5)(a), a police official or agent who sets a trap is exempt from criminal liability for their involvement in the crime, provided they acted in good faith to uncover criminal activity. Earlier case law had suggested that such officials could be liable as accomplices, but these views were criticised for failing to recognise that the official is acting in an official capacity, which serves as a ground of justification for their own otherwise prohibited actions.

The use of traps interacts with several rights in the Bill of Rights, most notably the right to a fair trial (Section 35) and the right to privacy (Section 14). In S v Singh,³ the Supreme Court of Appeal (SCA) held that there is no automatic exclusion of evidence obtained via a trap that violates constitutional rights unless its admission would be detrimental to the administration of justice. Public opinion is considered a relevant factor here i.e., the public generally supports effective detection of endemic violent and organised crime over the technical exclusion of guilt-indicating evidence.

Judicial Interpretation and Standard of Proof

In S v Kotze,⁴ the SCA clarified that while section 252A(6) places a procedural duty on the accused to furnish grounds for challenging trap evidence, the burden of proof to show the evidence is admissible rests on the prosecution. Crucially, the SCA held that the state must discharge this burden beyond a reasonable doubt, rather than on a mere balance of probabilities, as the evidence is often decisive in determining guilt.

Another notable case, S v Zurich,⁵ addressed the court’s general common-law discretion to exclude improperly obtained evidence based on fairness and public policy. In this case, the police had staged a bogus arrest and bail proceeding to bolster an undercover agent’s credibility with a suspect. While the court acknowledged the impropriety of misleading the judicial process, it ultimately admitted the evidence because the deception was directed at the court officials rather than being an unlawful act against the accused’s rights.

Overall, the law seeks a middle ground between the “principle-based” approach (focusing on strict legal requirements) and the “policy-based” approach (focusing on effective crime control). While the legislature and courts have not moved toward recognising entrapment as a full substantive defence, the exclusionary power in section 252A serves as a “necessary brake” to prevent the state from manufacturing crimes rather than merely detecting them.