IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2025-127853



In the matter between –

EDMONDSON, TIM JOSEPH Applicant
and

LETHLAKE, CAPTAIN GEORGE First Respondent
MINISTER OF POLICE Second Respondent

Heard: 1 August 2025
Judgment: 2 August 2025

SNYCKERS AJ

(1) REPORTABLE: Yes.
(2) OF INTEREST TO OTHER JUDGES: NO.
(3) JUDGMENT : 2 AUGUST 2025


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REASONS FOR ORDER



1. This matter came before me in urgent court on Friday 1 Aug ust 2025 . The
application was brought as a matter of ur gency on Thursday 31 July 2025. I
gave an order on 1 August 2025. I advised that I would furnish reasons. These
are the reasons for the order given by me on 1 August 2025.

2. This matter concerns the seeking, and granting, of interdictory relief against a
threatened arrest to secure attendance at court in relation to a Schedule 1
offence.

3. The relief sought was styled as a rule nisi, but the first prayer sought was for a
declaration that a contemplated arrest would be unlawful. The notice of motion
spoke in the present tense – that the arrest “constitutes a violation of … section
12(1) of the Constitution…”. Such declaratory relief, if granted, would be final.1

4. In substance what was sought was a rule nisi against a captain in the South
African Police Services, the first respondent,2 and the Minister of Police, the
second respondent, to show cause why the declaratory relief ought not to be
granted and they not be re strained from arresting the applicant pursuant to a

1 See the discussion by Moultrie AJ in K v T L unreported Gauteng Division, Johannesburg Case Number
25-086657 (8 July 2025).
2 The first respondent is cited in the notice of motion as George Lethlake, which seems to correspond with
the name on the relevant WhatsApp profile, but the Caselines filing page reflects him as “LEHLAKE”.

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criminal charge of fraud, instead of employing “less harsh methods, other than
arrest” to secure his attendance at court, such relief to operate by way of interim
interdict pending the return day.

5. The application was not b rought on a true ex parte basis. Service on the
Minister was effected on the State Attorney’s Johannesburg office stamped on
31 July 2025, as also confirmed in an attorney’s service affidavit. As for service
on the first respondent, Captain Lethlake, a service affidavit was submitted
deposed to by an administrator in the offices of the applicant ’s attor neys of
record. It relates how the officers at SAPS Germiston declined to accept service
of the application, despite the deponent’s efforts to serve on various officers on
various floors of the building to which he kept being directed by off icers who
declined to accept serv ice. The papers were eventually affixed to the door of
what was said to be the office of the Germiston Commercial Crime Unit
Commander. Photographs were attached to show this. In addition, the papers
were transmitted to the WhatsApp address of the first respondent, with whom
the applicant’s attorney had been in telephonic and WhatsApp contact up to the
day of the transmission of the papers – namely Thursday 31 July 2025. The
WhatsApp shows two ticks reflecting delivery at 16:41 (it is not clear from the
photograph whether these ticks are blue, reflecting that the message has been
read, or grey, which would not necessarily mean unread, but which would not
indicate the transmission was read). The applicant also says in his affidavit, in
the context of service on the first respondent, that the first respondent “informed
me that he does not have an email address.”

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6. When the matter was called on Friday 1 August, there was no appearance for
the respondents. It seems tolerably clear that the application came to the
attention of the first respondent and was served on the state attor ney the day
before the application was to be heard. Nevertheless, in the special
circumstances, it appeared appropriate to grant a returnable rule nisi and
expressly to provide for anticipation by way of 24 hours’ notice, as the first
available return days in the urgent court were only from 1 September 2025
onwards. It was, I felt, necessary to provide expressly for anticipation on short
notice given the extent to which my order interfered with the exercise of the
powers of the first respondent under section 40 of the Criminal P rocedure Act
1977, as considered further below.

7. The relevant facts set out in the founding papers may be captured thus:

7.1. The applicant was contacted by the Hawks in November 2024. They
asked him to attend an interview in relation to “a SARS case against me”.
The interview concerned allegations relating to a company of which the
applicant had been a director, in relation to apparent concerns about VAT
fraud. The applicant attended, answered questions and gave a
statement at the time (not included in the papers). The gist of what he
told the Hawks in November 2024 is not material to these reasons as no
case was so ught to be made out that the first respondent could not
properly have formed a reasonable suspic ion that the applicant was
guilty of a Schedule 1 offence, as conte mplated in secti on 40 of the
Criminal Procedure Act. Suffice it to say that he indicated to the Hawks
that his erstwhile employer had asked him to sign various documents,

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including being appointed as a director to the company in question, but
that he had no involvement in relation to the submission of VAT forms for
the company in question.

7.2. In June 2025, the first respondent started telephoning the applicant and
threatening to arrest him. This caused the applicant’s attorneys of record
to contact the first respondent and to tender his full co-operation with the
police in relation to any further investigation relating to the alleged fraud.

7.3. A letter was also written by the attorneys , on 17 June 2025, addressed
to the regional contro l prosecutor and senior public prosecutor of the
Kempton Park Magistrates Court, delivered by hand, indicating that the
first respondent had advised that he was investigating a fraud complaint
against the applicant, that criminal charges had been laid against him in
terms of which his erstwhile employer accused him of fraud, and that the
first respondent had indicated that “the matter will be seized in the
Kempton Park Cou rt” without in dicating whether in the District or
Regional Court, and wi thout sup plying a case number. The letter
continued to state that the applicant “wishes to cooperate with your
goodselves and the police and has advised Ca ptain Lethake 3
accordingly” and that the first respondent had informed the applicant that
he (the first respondent) “is attending court to apply for a warrant of
arrest”.


3 This incorrect spelling of the surname did not occur in the first paragraph of the letter where Captain
Lethlake was referred to by name.

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7.4. The letter then continued as follows:

“Please take note that the warrant of arrest is completely
unnecessary. Mr Edmondson is willing to attend at court on
reasonable notice given to him. We will accompany Mr
Edmondson to court.
In vi ew of the aforegoing, please do not persist with the
application for a warrant of arrest. Instead, a simply summons or
notice given to our offices for our client to attend at court, will be
an e ffective means of securing Mr Edmondson ’s pres ence in
court.”

7.5. The letter was WhatsApped to the first respondent by the applicant’s
attorney, on 19 June 2025 with a n explanation “Hi Captain . The
Prosecutor Mr Erasmus asked us to send this copy to you. Tha nks.
Yasmin Omar.”

7.6. The first respondent responded about 40 minutes later “ I am doing what
the Adv told me to do”.


7.7. The affidavit (confirmed by the att orney who also appeared in court
before me, Ms Omar), continue s to indicate that Ms Omar had a
telephonic conversation with the first respondent on 31 July 2025 in
which Ms Omar soug ht to explain to the first respond ent that arr est to

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secure attendance at court was contrary to “the SAPS Standing Orders
as well as the Criminal Procedure Act, which provide for less harsh ways,
than arrest, to secure an accused ’s attendance at court. ” In this
conversation, the first respondent is said to have insisted he would arrest
the applicant, who could apply for bail in court.

7.8. Unfortunately, the affidavit is not repl ete with detail on exactly what the
first respondent said, save that he conveyed in his WhatsApp message
that he was simply doing what an advocate told him to do – he was not
offering reasons for why he felt an arrest was appropriate.

7.9. I deal below with the disconcerting peculiar circumstances set out in the
founding affidavit affecting the applicant in relation to his son.

7.10. The affidavit tells us that the average ‘turn-around time’ for an opposed
bail application in the Kempton Park court is two months. It is not clear
from the papers why it is thought that bail would be opposed if sought.
One is told that the Kempt on Park Magist rates Court is “overwhelmed
with bail applications”. I cannot take judicial noti ce of any conditions or
any practice of routinely detaining accused after first appearance without
considering bail, but understand from the founding affidavit that the
allegation is that the applicant wi ll not be able to apply for and have a
bail application heard immediately upon being presented to court and
would likely be detained for “a long period of time” – reference being to
the two month “turnaround” period for opposed bail applications and the
fact that the court in question is overwhelmed with bail applications.

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8. The “SAPS Standing Orders” referred to in the affidavit and in the conversation
with the first respondent refer to Standing Order (G) 341. This has been referred
to by courts as “internal regulations” issued by Consolidated Notice 15/1999 in
terms of the Regulations under the South African Police Services Act 68 of
1995, and treated as if binding law on arresting officers.4 In Calitz v Minister of
Police, 5 van der Schyff J held that the Standing Order created “statutory duties”
on the police.6

9. Standing Order (G) 341 in relevant part was attached to the papers. Paragraph
3 of the Standing Order is material. It is headed “Securing the attendance of an
accused at the trail by other means than arrest” and reads as follows:


(1) There are various methods by which an accused’s attendance at a trial may
be secured. Although arrest is one of these methods, it constitutes one of
the most drastic infringements of the rights of an individual and a member
should therefore regard it as a last resort.

(2) It is impossible to lay down hard and fast rules regarding the manner in
which the attendance of an accused at a trial should be secured. Each case
must be dealt with according to its own merits. A member must always
exercise his or her discretion in a proper manner when deciding whether a

4 See for example Le Roux v Minister of Safety and Security 2009 (4) SA 491 (N) Madondo J, Msimang J para
14; Domingo v Minister of Safety and Security 2013 JDR 1162 (ECG) Chetty J, Malusi J, para 6;
Bonginhlanhla v Minister of Police 2013 JDR 1995 (GSJ) Madima AJ.
5 [2021] ZAGPPHC 733 (29 October 2021).
6 Para 30.

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suspect should be arrested or rather be dealt with as provided for in
subparagraph (3) below.


(3) A member, even though authorised by law, should normally refrain from
making an arrest if —

(a) the attendance of an accused may be secured by means of a summons as
provided for in section 54 of the Criminal Procedure Act; or
…

10. On the facts set out in the founding papers, there would appear to be a prima
facie case made out for a violation of th e provisions quoted above on the part
of the first respondent, in his stated resolve to arrest the applicant to secure his
attendance at court in relation to the fraud charge.

11. The question is whether this , coupled with the other elements for an interim
interdict, should be suffici ent to warrant granting inter dictory relief such as
sought in the instant case . The rule nisi would at first operate as an interim
interdict pending any return day.

12. The courts creak with cases in which plaintiffs seek, and are awarded, damages
for wrongful arrest. Interdictory relief against arrest is another matter altogether.

13. Even in the sphere of damages after the fact, a watershed in the attitude of the
courts in respect of arrest for the purposes of securing attendance at court was

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the seminal decision of Harms DP7 in Minister of Safety and Security v Sekhoto
and Another.8 The case confirmed , in sobering but clear terms, that the “fifth
jurisdictional fact” for an arrest to secure attendance, that had been introduced
by courts before the decision in Sekhoto, was not in fact required by a
constitutional reading of the provisions of section 40 of the Criminal Procedure
Act. What Harms DP termed this “fifth jurisdictional fact ” was worded thus by
Bertelsmann J in Louw:9

“If there is no reasonable apprehension that the suspect will abscond, or
fail to appear in court if a warrant is first obtained for his/her arrest, or a
notice or summons to appear in court is obtained, then it is
constitutionally untenable to exercise the power to arrest.”

14. What is clear from Sekhoto is that, once a person with the authority to arrest,
like the first respondent, reasonably suspects that someone has committed any
Schedule 1 offence, of which fraud is one, that officer may arrest such person
to secure their attendance at court. It is not for a court to co nsider whether, in
the view of the court, such an arrest is a necessary means, instead of a lesser
means, such as a summons. There is accordingly no jurisdictional fact requiring
arrest to be (objectively) necessary before it can be lawful.

15. Harms DP confirmed in Sekhoto that section 40 conferred a discretion , that
was, both before and after the advent of the Constitution, reviewable by courts
on the basis of so-called Wednesbury reasonableness and rationality.10

7 In a unanimous judgment.
8 2011 (5) SA 367 (SCA)
9 Louw & Another v Minister of Safety and Security & Others 2006 (2) SACR 178 (T), at 187, as quoted in
Sekhoto para 10.
10 Sekhoto paras 28 to 37.

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16. Sekhoto says that the statute (the Cri minal Procedure Act) is silent on what
factors are to be taken into account in the exercise of the discretion:11

“In this case the legislature has not expressed itself on the manner in
which the discretion to arrest is to be exercised: that must be discovered
by inference.”

17. Sekhoto does not refer to the Standing Or der. The Standing Order does not
introduce the fifth jurisdictional fact as an objective jurisdictional fact. It does,
however, require police officers to consider whether lesser means are
appropriate, to use arrest as a last resort, and “normally to refrain from arrest”
if a summons would suffice. And it makes it a requirement for them to “exercise
a proper discretion” in considering this question. It is binding on them.


18. It may be noted that Harms DP doubted whether an arrest under section 4 0
was administrative action, reviewable under PAJA.12 There were anomalies that
would arise in the sphere of claims for damages for unlawful arrest if arrests
were treated as PAJA administrative action. Harms DP referred to the question
of co mpensation as opposed to damages as being one of these, and in
Nkwahla v Minister of Police13 Govindjee AJ expressed “serious misgivings ”
about the proposition that arrest constituted administrative action under PAJA,
holding the issue not to have been definitely decided.14 An anomaly that would

11 Para 40.
12 The Promotion of Administrative Action Act 3 of 2000. See Sekhoto para 38.
13 2021 JDR 1702 (ECP)
14 Para 10.

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attend such a proposition wa s the contention unsuccessfully advanced in
Nkwahla that, on the Oudekraal principle,15 a cause of action for wrongful arrest
might be said to arise only once the arrest were “set aside” by a court of law ,
something that strikes one as anomalous indeed. Although I believe an arrest
is not PAJA administrative action, but merely a coer cive act that may be
authorised by statute, as would be, say, a lawful shooting, it is unnecessary for
me to make a final decision on this point, as Harms DP in Sekhoto held that,
whether an arrest was administrative action or not , it remained a general
requirement that the discretion had to be exercised in good faith, rationally and
not arbitrarily,16 and was accordingly subject to judicial interference.


19. The following important observations were made by Harms DP in relation to
judicial interference in the exercise of this discretion:

“This would mean that peace officers are entitled to exercise their
discretion as they see fit, provided that they stay within the bounds of
rationality. The standard is not breached because an officer exercises
the discretion in a manner other than that deemed optimal by the court.
A number of choices may be open to him, all of which may fall within the
range of rationality. The standard is not perfection or even the optimum,
judged from the vantage of hindsight — so long as the discretion is
exercised within this range, the standard is not breached.”


15 From Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA).
16 Para 38.

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20. In addition, Harms DP stressed the importance deferring to the court of first
appearance with respect to the question whether the suspect should or should
not be detained – that was not something the arresting officer consider ed; it
was something the court con sidered when the suspect was brought before it
(assuming the suspect was entertained on a bail application).17

21. Furthermore, Harms DP said th e following about arrests for Schedule 1
offences:18

“it is clear that in cases of serious crime — and those listed in Schedule
1 are serious, not only because the legislature thought so — a peace
officer could seldom be criticised for arresting a suspect for that
purpose”.

22. Fraud is a Schedule 1 offence.

23. These are weighty considerations that militate strongly against interference in
the instant case.

24. But the judgment in Sekhoto does endorse the applicability of the common law
requirement that the relevant exercise of discretion must entail the application
of mind:19


17 At paras 42 to 44.
18 Para 44.
19 From Shidiack v Union Government 1912 AD 642 at 651-2.

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“if he had not applied his mind to the matter or exercised his discretion
at all, or if he had disregarded the express provisions of a statute — in
such cases the Court might grant relief.”

25. This is after all exactly what the Standing Order requires, as a matter of binding
law, from police officers contemplating arrest – a proper application of mind to
the question, including considering the question whether a summons might not
be effective, and normally refraining from arresting if a summons were thought
to be effective.

26. Domingo20 is a decision that held an arrest to have been un lawful precisely
because the arresti ng officer failed to apply his mind to the discretion he had
whether to arrest or not, believing a warrant required him to arrest, contrary to
the terms of the Standing Order. This was in circumstances where the plaintiff
in that case had asked the arresting offi cer whether he (the plaintiff) could not
“go to court on the Monday morning to s olve the problem ”. The arres ting
officer’s response was that it was his duty to arrest, given the warrant. This was
held to have been a fatal failure to apply his mind, as required by the Standing
Order.21

27. I do not regard Sekhoto as precluding the ability of a court to interfere with an
arresting decision on the basis that it entailed the failure to apply the mind to
the question posed in the Standing Order . It is , on the contrary, authority for

20 Domingo v Minister of Safety and Security 2013 JDR 1162 (ECG) Chetty J, Malusi J.
21 Paras 5 and 6.

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such an ability. And cases like Domingo and Calitz that invoke the Standing
Order as law with statutory imprimatur are strong support for such an ability.

28. But that leaves the question, posed above, whether ex ante interference by way
of interdict is appropriate.

29. I confronted Ms Omar with the judgment of Potteri ll J in Mapisa-Nqakula v
NDPP.22 That judgment contains dicta that suggest a court d oes not have the
power to interdict an arrest.23 These include the following observations:

“It is most certainly not within the power of this Court to instruct the
Minister and his officials to summons the applicant versus to arrest her.”
24

…
The respondents argued that it would not be competent for this Court to
interdict an arrest. I am in full agreement with this submission. Not on
the facts presented, but more importantly, a Court has to take
cognisance of the fact that if the Court grants such an order the
floodgates will be opened. Every suspect will be in a position to approach
a Court, on an urgent basis, setting out on speculation that there is a
weak case against it and interdict an arrest. Any suspect would merely
have to set out in a founding affidavit that the arrest in future will be

22 2024 JDR 1749 (GP).
23 Paragraphs 20, 22 and 24.
24 Paragraph 20.

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unlawful. The whole criminal justice system will fail and will be controlled
by suspects.” 25

30. Ms Omar pointed out that in that case, the authorities had made it clear that
they would not oppose bail and there was no danger of detention:26

“It is common cause that even before this application before me was
brought, it was indicated to the applicant that the respondents would not
oppose bail. An arrest, on its own, cannot create urgency; especially
when there is no apprehension of detention.”

31. In the instant case, there has been no such assurance, and the evidence in the
founding papers is that the likelihood is of detention by default as a pure incident
of the degree to which the system is overwhelmed – rendering the decision to
arrest in a sense a decision to subject the applicant to the strong likelihood of
prolonged detention before he has any opportunity to seek bail.27

32. Potterill J specifically emphasised the fact that the authorities had allowed the
applicant to present herself to the court without arrest , a situation the contrary
to the one faced by the applicant in this case:


25 Para 22.
26 Para 9.
27 It is interesting in this regard to consider the situation and majority finding in the Constitutional Court
case of De Klerk v Minister of Police 2021 (4) SA 585 (CC) in which it was held that a peace officer who had
effected an unlawful arrest foreseeing that there would be detention arising at court, due to routine
remand instead of hearing a bail application, was liable also for the foreseen detention damages, despite
the fact that the detention arose from the magistrate’s failure to afford the applicant an opportunity to
seek bail by way of a new decision.

17

“This applicant has been ensured that section 40 will only be utilised if
she does not present herself to the police station. The applicant has
failed to do for two weeks. The fact that section 40 will only be utilised if
she does not present her to the police station, is in complete compliance
with the standing orders, which sets out that arrest should be a last
resort.” 28

33. This does suggest that the decision in Mapisa-Nqakula might well have been
different had the court held there to have been a threatened violation of the
Standing Order.

34. I confess to being greatly troubled in the instant case by the admonitions in
Mapisa-Nqakula concerning interdictory relief against an arrest. Not only does
this dance on the boundaries of the separation of p owers, but it dangerously
risks stultifying the ability of the police officers to exercise their discretionary
powers under section 40 and the Standing Order – as an interdict is aimed at
future decisions to arrest and cannot anticipate all the circumstances that may
attend to any such decision. The OUTA principle would appear to be of strong
application in this case. A court should not interfere in advance with the exercise
of statutory powers save in the clearest of cases.29

35. But I do not read the decision in Mapisa-Nqakula as laying down a principle that
a court lacks the power in appropriate cases to interdict what would be an
unlawful arrest. If it does, then I respectfully differ from it in this respect. I am in

28 Para 23.
29 National Treasury and Others v Opposition to Urban Tolling Alliance and others 2012 (6) SA 223 (CC)

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full respectful agreement with the salutary proposition that a court should not
purport to legislate in adva nce whether someone ought or ought not to be
arrested. But there may be cas es where , on the facts as they present
themselves, a case is made out that there would prima facie be a violation of
the Standing Order if an arrest , which is immine ntly threatened, were to be
effected, and where interim interdictory relief could be appropriate – at least
putting the arresting officer to the task of justifying the arrest at the return day
or on anticipation of the return day if deemed nece ssary, as in this case. After
all, since long before our Constitution, the onus to prove the la wfulness of an
arrest rested upon the arrestor. Personal liberty is truly an ancient human right,
the unlawful interference with which has a claim to the attention of the law at
least as weighty as that asserted in the case of the interference by the courts
with statutory powers.

36. I was not amenable to declaring any potential arrest to be unlawful.

37. That brings me to the other elements of interim interdictory relief and an aspect
of this case that rendered it rather exceptional , and ended up tilting the scales
despite the weight put on them by Sekhoto and in particular Mapisa-Nqakula.

38. The applicant says his child is a special needs child with severe auti sm. Since
the beginning of July, the child has had a complete mental breakdown and is
currently on suicide watch. The applicant says he is the only person to whom
the child responds. The applicant needs to be at home for this. Should he
suddenly be arrested and the child not see him present, the child will “fall apart
mentally”. The applicant says he is petrified that he will lose his son. His son
might commit suicide.

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39. These are the allegatio ns in the fou nding papers. If they are true , this
threatened arrest, that appears prima facie to violate the Standing Order, might
precipitate the suicide of a child. The extent to which this is truly the situation
may be further revealed on the return day, whether as scheduled or anticipated.
As may be reasons the first respondent has to exercise an arresting decision.

40. The applicant is tendering his attendance at court whenever required – in his
affidavit too. He says he has lived at the same address for three years, has
always lived in South Africa and all his family and friends live here. He says he
has neither the means nor any wish to flee the country. It is not for this court to
decide whether this means he should or should not be arrested. That is for the
arresting authority to decide. And it will then be relevant to a court if and when
the applicant is heard on bail. But the arresting authority must make this
decision exercising a proper discretion applying the Standing Order. Prima facie
the first respondent is not doing this – he is saying the arrest will be effected as
others are telling him to do so.

41. In the circumstances, I issued the rule.
*
For the Applicant: Ms Y Omar
Omar Attorneys Boksburg

No appearance for Respondents