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

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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

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Judge Sanborn says that the duty of officers is to prevent crime. It is not the first duty

of an officer to punish crime. Therefore it is not acceptable that officers create crimes for the

purpose of prosecuting and punishing.8

possibilities to prevent officers from persuading people to commit a crime. The defence of entrapment

prohibits a conviction when the accused had no intention to commit a crime, and only committed

the crime because law officers persuaded him. It is unlawful for police officers to manufacture

crimes. If entrapment is raised as criminal defence, the burden of proof lies with the government.

The government must prove beyond reasonable doubt that the accused was intending to commit the

crime before law enforcement agents were involved. The burden of proof, proving that there was no

entrapment, is quite tough. The protection of the accused goes far.

Rejection of an entrapment defence has been criticized by Choo. Recognition of a substantive defence

of entrapment on the basis that entrapment “causes in a broad sense, the commission of a crime ….

The actual commission of the crime can be regarded as having been a fruit of the impropriety … There

is no justification for conviction of an entrapped defendant.”9

2 Defence of Entrapment in the Netherlands

2.1 Regulation of entrapment

In the Netherlands there is no such thing as defence of entrapment, but they do have rules to

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