The Constitutional Implications of Abuse of Entrapment in the Workplace:
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Date
2025-05-26
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National University of Lesotho
Abstract
This research is aimed at scrutinizing the legal ramifications of civil entrapment in the context
of Lesotho’s legal landscape, utilising South Africa and United States jurisprudence as
reference points. By undertaking an in-depth investigation of entrapment practices, the study
pinpoints the lacuna in Lesotho's legal landscape: both the Labour Act 2024 and its predecessor
the Labour Code Order 2000 as well as the Criminal Procedure and Evidence Act 1981 are
silent on the issue of civil entrapment. Shifting gazes to South Africa as the first reference
point, it has the legal framework which pronounces itself more clearly in terms of section 252A
of its Criminal Procedure Act and relevant case law, and the U.S.A on the other hand, opts a
subjective predisposition test rooted in constitutional protections, Lesotho lacks any formal
structure to regulate such practices. This legal vacuum places both stakeholders at risk of falling
prey to vulnerable to coercive investigative methods and employers uncertain about evidentiary
standards and due process requirements. The study closes the research by recommending
appropriate legislative reforms, including amendments to the Labour Act 2024 and the
Criminal Procedure and Evidence Act 1981. These reforms are meant to act as the bridge that
fills the legislative void by providing procedural safeguards, clarifying the boundaries of lawful
surveillance, and seeing to it that any evidence emanating from entrapment is gathered andutilized in a constitutional manner.
The research commences by laying out the conceptual foundations of workplace entrapment,
shining light on its double pronged nature as both a potential weapon for exposing misconduct
and a risk for violating individual rights. Entrapment, when utilized in a mala fide way, it can
result in manipulation, emotional bullying, and self-created crime. The inherent danger that
attaches to employees in a jurisdiction where relevant legislation is silent on this issue, there is
potential for it to be abused by employers. Considering this, this research views entrapment not
just as a procedural issue but as a constitutional issue that could give rise to a number of issues
which have a bearing on privacy, dignity, and unfair labour practices.
By embarking on the comparative analysis, the research shines light on the manner that South
African courts have attempted to strike a balance intersee the interests of employers with the
rights of employees. Landmark cases such as Cape Town City Council v SAMWU and Caji v
Africa Personnel Services paint a clear picture on the canvas on the manner South African
courts treat entrapment and they err on the side of caution, in instances where there is existencef proof of inducement or manipulation. In both cases, courts reiterated the necessity of
procedural fairness and tossed aside evidence gathered via emotionally coercive methods.
Unlike in South Africa, the United Stated jurisprudence on entrapment reveals that the main
enquiry in any case where entrapment is involved is whether the entrapped person had
predisposition. Analysis of cases of Jacobson v United States and Sorrells v United States is to
the effect that the courts’ focus is the latitude to which government agents may instigate
criminal behaviour. It is true that this benchmark, places focus on the defendant’s mindset than
the investigator’s conduct, however it acts as an indispensable constitutional safeguard against
abuse of power.
The research further pinpoints the fact that Lesotho’s Constitution provides a strong foundation
for regulating workplace entrapment, despite the absence of a specific legislative instrument to
that effect. Rights to privacy, and freedom from arbitrary action are already contained in
Lesotho’s legal system. Nonetheless, without enabling legislation to operationalize these rights
in workplace investigations, constitutional protections remain theoretical. For that reason, this
research presents a hybrid legal model for Lesotho: one that blends South Africa’s procedural
safeguards with the U.S. emphasis on individual predisposition to come up with a strong legal
framework that is the best of both worlds and best regulate workplace entrapment.
To round off, the research puts forth the recommendation that is aimed at amending both theLabour Act 2024 and the Criminal Procedure and Evidence Act 1981 to incorporate sections
that unambiguously deal with entrapment. Proposed amendments include but are not limited to
the following: defining workplace entrapment, barring the use of emotionally manipulative
tactics, and requiring prior authorization for covert operations. The creation of a tribunal
mechanism, such as a role for the Directorate of Dispute Prevention and Resolution (DDPR),
is also suggested to provide an avenue for employees to challenge the legality of entrapment-
based evidence in disciplinary proceedings. These recommendations are meant to nurture the
principles of fairness and legality while ensuring that employers retain the ability to investigate
genuine misconduct in an ethical and legally compliant manner.
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Keywords
Lesotho Constitution, abuse of entrapment, workplace, Lesotho Law, American Law, South African Law