Abstract

Section 252A of the Criminal Procedure Act allows law enforcement officers or their agents to use traps or to engage in undercover operations in order to prevent, detect or investigate the commission of an offence. Evidence obtained through such traps or undercover operations is admissible. Since the coming into force of s 252A, South African courts have developed a rich jurisprudence on the issue of traps and undercover operations. Most of this jurisprudence has developed within the context of criminal law. However, since 2000 there has been a consistent trend on the part of the Labour Court, the Commission for Conciliation, Mediation and Arbitration and bargaining councils, to assess the admissibility of evidence obtained through entrapment or undercover operations in employment matters on the basis of s 252A. This article argues that relying on s 252A to assess the admissibility in employment matters of such evidence is questionable. The author recommends that in employment disputes, the admissibility of evidence obtained through traps should be assessed on the basis of the principles that existed before s 252A was enacted and that consideration should be given to the drafting of employment-specific legislation to regulate the process.