Comment: Telephonic entrapment

• DOI: https://doi.org/10.47348/SACJ/v34/i1a6
• Published date: 06 July 2021
• Citation: (2021) 34 SACJ 118
• Pages: 118-127
• Date: 06 July 2021
• Author: Naude, B.C.

Telephonic entrapment

BC NAUDE

University of South Africa

1 Introduction

In South Africa, s 252A of the Cri minal Procedure Act 51 of 1977

regulates entrapment to safeguard fair trapping procedures. It sti-

pulates that entrapment evidence is admissible if the conduct during

the trap does not go beyond providing an opportunit y to commit an

offence (see generally, S v Thinta 2006 (1) SACR 4 (E); S v Hammond

2008 (1) SACR 476 (SCA); S v Kotzè 2010 (1) SACR 100 (SCA); S v

Singh 2016 (2) SACR 443 (SCA)). If the conduct goes further than that,

a court may exclude the evidence obtained if it was gained in a n

improper or unfair manner and if the admission of such evidence

would render the trial unfair or would other wise be detrimental to

the administr ation of justice. Section 252A stipulates factors that a

court can consider when determin ing whether the conduct during the

trap went beyond providing an opportunity to commit an offence and

factors that a court can consider when the exclusion of entrapment

evidence is contemplated. Section 252A is open to criticism on various

grounds, but a full disc ussion in this regard is beyond the scope of this

comment (see generally, DT Zeffertt & AP Paizes The South Afr ican

Law of Evidence 3ed (2017) 872 ff; E du Toit et al Commentary on the

Criminal Proce dure Act (1987) (RS 65 2020) ch 24).

It has been pointed out that it is difcult to determine what type of

conduct ‘goes beyond providing an opportunity to commit an offense’

(see Zeffertt & Paizes op cit 876 and the cases cited). As no denition

is provided, a court must look for guidance to the factors mentioned

in s 252A(2), and these factors do not, in itself, provide adequate

guidance ‘in giving meani ng and certainty to th is very important term’

(Zeffertt & Paizes op cit 877). In the end, these factors are all relevant

in determini ng whether the entrapment evidence should be excluded.

This comment will explore the possible meaning of subsec 252A(2)(l)

as a factor in determini ng whether certain conduct went beyond

providing an opportunit y to commit an offence, and more specically

in the context of entrapment operations conducted over the phone

(see, S v Lachman 2010 (2) SACR 52 (SCA) for an example where SMS

text messages from the accused led to the institution of entrapment

measures. See also, S v Nnasolu 2010 (1) SACR 561 (KZP) where the

police set up a trap after they received information that a person used

a particular cell phone number to sell d rugs. A call was placed to

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https://doi.org/10.47348/SACJ/v34/i1a6

(2021) 34 SACJ 118

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