Is scratching your head and looking around when a police officer approaches enough to be cuffed and searched?
A low-key case of alleged possession of tik was heard in the Cape Town Magistrate’s Court on Tuesday and had the accused’s lawyer and the magistrate questioning how the police decide what warrants a stop-and-search.
In this case, was it because the accused, Joshua Aguza, was looking around while walking down a side road with another man in Sea Point on an August morning last year?
Was he cuffed before being searched because he reached behind his head with one hand when the police officer approached him?
Aguza was arrested for allegedly being in possession of five small packets of tik, a drug also known as methamphetamine.
Asked how he pleaded, he simply said “not guilty” and sat down.
‘Looked very suspicious’
Questioned by Legal Aid lawyer Kabelo Manyoga, Sergeant Heinrich Pretorius, said he was part of a team fanning out around Sea Point for policing duties.
He was wearing civilian clothes and was patrolling near Main and West Beach Street when he saw the man coming down a side street with a homeless man with whom police were familiar.
“They looked very suspicious, looking around and talking the whole time,” testified Pretorius.
He said one of them had also been “locked up” for drugs before.
When Pretorius approached them, Aguza put his hand behind his head and scratched it.
Pretorius’ reading of the situation was that an on-the-spot search was warranted.
He testified that to avoid risk to either the man he was about to search or himself, he cuffed him and then searched him.
Aguza was arrested and at the police station it was found he had a previous brush with the law.
At the police station, Pretorius took an item out of his pocket and put it in an evidence bag.
The item was found in Aguza’s hand, the court heard.
Manyoga submitted his client’s version was that he was not carrying the drugs the police officer presented at the police station.
‘Just doing my job’
A long debate ensued in court over the police officer’s reading of the situation.
“You arrested him because he was scratching his head, and then you handcuffed him. And only thereafter you searched him,” submitted Manyoga.
Magistrate Vusi Mahlangu also wanted to know whether it was normal to “pick up” people and go and check their fingerprints, or to search people who had been arrested for drugs before.
Pretorius said he did it sometimes, and added people who had nothing to hide would comply.
He explained that the cuffing was necessary before the search because sometimes people were armed with knives, which was risky.
“I’m just doing my job,” he testified. “Otherwise, if I find something else, I read them their rights.
“As I explained, body behaviour says a lot. I’ve been doing this job for 13 years.”
The State rested its case. Manyoga applied to court for an acquittal in terms of Section 174 of the Criminal Procedure Act on the grounds that the State’s evidence against Aguza was weak and improbable.
Aguza was acquitted.
*This story has been updated