Implementing and conducting Covert or Undercover
Operations and Investigations is a specialised undertaking un to it’s own. This
is largely due to the unique difficulties and the myriad of complexities and difficulties
involved in setting up, running with.. and successfully concluding a covert
The covert or undercover operative is a special type of
person. He or She needs to be a superlative actor and have the self confidence
and fortitude to perform under extreme stress and permanent threat of exposure.
One small slip up can cause untold damage to the operation.
Conducting a Risk Assessment and
identifying the possible source of the leak or theft.source of the ment and identifying the leak
Planning a Covert Operation..ie-
Frames and Setting Targets.
of Operatives required.
of Operative/s required.
Equipment needed and sourcing same. eg..Covert Video and Audio Recorders, Cameras,
Cellular Phones, Tracking devices etc..
Background Criminal and Financial checks.
Locating and Training a suitable ‘Mole’ for
the particular position.
Putting the Covert Operative into play
effectively and with minimal disturbance to the Organisation.
Creating an easy and reliable reporting
structure for the operative.
Setting up Contingency or Back-up plans.
Collating, evaluating and documenting all
Initiating Criminal Procedures/Opening Case
Giving Evidence in Criminal Court.
Compiling and presenting the Final Report.
On the conclusion of the Covert Operation and on
request of the Client, We will be available for ongoing Security Consulting and
ensuring that all possible loopholes are closed.
Intrepid Security Consulting will then perform a thorough
Threat Assessment and Risk Analysis on the Organisation and format an effective
and flexible Risk Control Plan and where needed, assist with the seamless implementation
A matter of entrapment
I often get asked this
question of whether or not an employer can install hidden surveillance
equipment, such as video recording cameras, or hidden audio recording
equipment, in order to monitor the behaviour of employees.
There are several
different schools of thought on this matter.
From one aspect, there is nothing illegal about a trap in
itself. The question is whether or not the evidence of the trap would be
This might all sound a little complicated, but what it
means basically is that if you are conducting an investigation into a known
crime - such as the employer is experiencing heavy stock losses, which leads
the employer to quite fairly conclude that somebody is stealing his stock - he
just does not know who, when or how - then he would be entitled to install
hidden surveillance cameras, for example, in order to "catch a
However, if no known crime is taking place - let's say
the employer is not experiencing any stock losses or disappearance of other
assets - but he installs hidden surveillance cameras merely "in the hope
of catching somebody if they should attempt theft" - then that would be
considered to be entrapment, and the evidence, in all probability, would not be
In Mbuli / Spartan Wiremakers CC, the respondent
was experiencing any stock losses - he set a trap in the form of asking
one employee to approach the suspect the employee to conclude a deal for the
supply of netting wire "via the back door."
A deal was concluded, the deal went through, and the
suspect employee subsequently charged and dismissed.
In this instance, the applicant employer had taken
several other measures to try and control the disappearance of stock, such as
introducing regular morning security patrols outside of the perimeter fence to
look for company product that had been thrown over the fence during the night
shift for later collection, and offered rewards to staff for information.
After the deal in the trap had been concluded, it was reported by the assisting
employee that there were two employees involved in this type of theft, and a
"sting" operation was set up, whereby the suspect employee agreed to
sell three rolls of netting wire to the "trapper", and they arranged
to meet at a place the next day, at a location outside of company premises,
where the stolen wire would be handed over and payment made.
This transaction was observed by the respondent's
dispatch manager, who witnessed the entire transaction taking place.
All of this, remember, was done covertly, without the
knowledge of the suspect employees, and with the express intention of
"trapping" then in their illegal shenanigans.
A disciplinary hearing was held, followed by a verdict of
guilty and a subsequent dismissal.
The applicant (amazingly)
alleged at the arbitration that his dismissal was substantively unfair because
he did not breach any rules of the workplace. He denied reaching
agreement with the other employee to provide him with three rolls of netting
wire, he denied removing three roles of such wire from the company premises,
and denied meeting the employee at the previously agreed rendezvous, where the
transaction was witnessed by the respondent's dispatch manager.
The applicant stated that
he was working day shift on that day, and would not have had permission to
leave the premises to go and meet at the agreed rendezvous point. However, the
respondent produced proof that the applicant was in fact working night shift on
that day, and not day shift, and the applicant then conceded that this was
The applicant stated
further that his dismissal was procedurally unfair because he did not
understand the notification of the disciplinary inquiry, and he did not have
enough time to prepare for the inquiry. He stated that he was illiterate
and could neither read nor write English.
A little later during the
arbitration, the applicant was requested to read into the record the written
notes that he had taken in English during his disciplinary inquiry, and he did
so quite competently.
After various other lies,
which were promptly uncovered, the arbitrator failed to agree with the
applicant on any of these allegations of procedural unfairness, the arbitrator
considered (and this is the crux of this article) whether the way in which the
evidence of theft (entrapment) was obtained should make any difference to the
fairness of the dismissal.
The Arbitrator asked the question of whether the entrapment of the
applicant was fair.
The Arbitrator noted that there is a distinction between
the realm of criminal law and a very different jurisdiction afforded to
Bargaining Councils, the CCMA and the Labour Court in terms of the LRA, namely
that obviously criminal proceedings are governed by criminal law and civil
proceedings by civil law.
Nonetheless, the arbitrator noted that the approach to
entrapment in criminal law is instructive as a guideline in these matters.
The Criminal Procedure Act provides guidance for the
courts to decide on the admissibility of entrapment as evidence - rather than
reference to entrapment as a defence.
Some of the factors to be considered are the following :
The nature of the offense
- taking into account the prevalence of the offense and the seriousness of the
offense (in other words, a "known crime" - an "existing
unlawful activity”, rather than trying to induce somebody into committing a
The availability of other
techniques for the detection, investigation or uncovering of the commission of
the offense, or the prevention thereof;
The degree of persistence
and number of attempts made before the accused succumbed and committed the
The type of inducement
used, including the degree of deceit, trickery, misrepresentation or reward;
The timing of the conduct
- whether the trapper instigated the offense or became involved in an existing
Whether the conduct
involved the exploitation of human characteristics such as the motions,
sympathy or friendship, or an exploitation of the accused is personal,
professional or economic circumstances;
Whether the trapper or
agent has exploited a particular vulnerability of the accused such as a mental
handicap or a substance addiction;
Any threat implied or
expressed against the accused;
Whether, before the
trap was set, there existed any suspicion based upon reasonable grounds that
the accused had committed a similar offense.
Thus it can be seen that all of the above involve the basic principle of “
investigation of a known crime", or "investigation of an existing
In a further case involving Cape Town City Council v SAMWU &
others, the Judge stated that "law enforcement and the pursuit of
justice would be impeded if evidence obtained in a trapping situation were
excluded, provided the use of entrapment is properly scrutinised and
This view was agreed with
by Arbitrator G. Loveday, who stated "in the current environment of
massive losses incurred by business due to staff theft of company product, an
employer should be entitled to use whatever lawful mechanisms are available to
curb such theft. In exceptional cases, these mechanisms may indeed
include entrapment, provided proper constraints are applied.
The Arbitrator went on to state that, in this particular case, the
applicant was specifically targeted because of an existing suspicion raised by
an anonymous informant that the applicant and his co-accused were involved in
stealing company property and selling it. There was no evidence that the
applicant was unduly induced, coerced or tricked into committing the theft.
Rather, the applicant was a willing participant and did not need to be cajoled
into the commission of the offense. The applicant was not an innocent
person who has been led astray by unfair in inducement. The person
conducting the trap did no more than provide the opportunity for the applicant
and his accomplice to commit the offense, and no unfair in inducement, besides
financial reward, was used or was, indeed necessary.
It was therefore found that the evidence acquired in the
entrapment is admissible and did not detract from the fairness of the
“Excerpt taken from ‘The
South African Labour Guide Website”