Does the South African Criminal Law Need a Defence of Entrapment?

Does the South African Criminal Law Need a Defence of Entrapment?

Criminal law is the branch of national law that defines certain forms of human conduct as crimes

and provides for punishment of those persons with criminal intent who unlawfully and with a guilty

mind commit a crime.1

accused cannot plea a successful defence, his conduct is unlawful. If he meets the other requirements

for criminal liability, he is liable for the crime that he committed. If he pleads a successful defence,

he should be acquitted. Whether entrapment is such a defence has not been determined by the South

African Courts.3

and planning of an offense by an officer, and his procurement of its commission by one who would not

have perpetrated it except for the trickery, persuasion or fraud of the officer’.4

Currently, there is a discussion on whether South Africa needs a defence of entrapment. In South

Africa, where the crime rate is relatively high5

fighting crime of the prevention of crime? The defence of entrapment is mainly created by the

American Courts but New Zealand, Canada, and Australia are also forming policies on this issue.

In this paper I will explain why South Africa does not need a defence of entrapment. I am going to

look at the defence of entrapment in the US in chapter 1, since they are the founding fathers. Before

we can determine if South Africa needs a defence of entrapment it is interesting to discuss different

approaches. I will discuss the American approach in chapter 1, the Dutch approach in chapter 2 and

the South African approach in chapter 3. After that I will debate in chapter 3, whether entrapment

violates human rights and in chapter 4, I will discuss the...

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...iolating human rights.

A good example is entrapment in the case of bicycle theft in the Netherlands. There has been a lot of

discussion about this method of entrapment. The Supreme court decided that this method is lawful and

statistics reveal that it prevents crimes.

I think a better solution to solve the entrapment issue is to exclude evidence, which is already

regulated by law, and in the ‘worst case scenario’ the inadmissibility of the prosecutor as seen in the

Netherlands. This is a better solution because the accused will not be found guilty, but he will be

discharged from any further prosecution because an error has been made. This does not imply that the

conduct committed by the accused was lawful, rather it implies that a fault has been made by the law

enforcement officers. This is an added value for the sense of justice.