BILL WATCH 42/2022
[16th September 2022]
The Electricity Amendment Bill
The Electricity Amendment Bill was published in the Gazette on the 29th July and has not yet been presented in Parliament. It can be accessed on the Veritas website [link]. The Bill proposes to amend the Electricity Act [link] [which we shall call “the Act” in this bulletin] to introduce harsher penalties for criminal offences involving the abstraction of electric current and the theft, damage or destruction of electrical apparatus. To understand the effect of the Bill, we should first look at the relevant provisions of the Act as they are at present.
Provisions of the Electricity Act to be Amended
The Bill proposes to amend the following sections of the Act:
Section 60A (1) makes it an offence to abstract or divert electric current or knowingly to use current that has been illegally abstracted or diverted. Persons guilty of these offences are liable to a fine of up to level 14 (currently Z$500 000) or to imprisonment for up to five years or to both.
Section 60A(2) makes it an offence to extinguish, damage or destroy electric lamps or other apparatus provided for the convenience or safety of the public – street lamps, traffic lights and so on. Anyone found guilty of this offence is liable to be sentenced, in the absence of special circumstances, to a mandatory minimum sentence of imprisonment of not less than one year.
Section 60C(2) creates several offences for drivers or persons in charge of a vehicle carrying material used for generating, transmitting or supplying electricity, to fail to produce on demand a special police clearance certificate or customs clearance documentation relating to the material. Anyone guilty of these offences is liable to a fine of up to level 14 or to imprisonment for up to five years or both.
Section 60C(3) is a convoluted provision and not easy to understand, but it seems to permit persons to be convicted of two different offences arising out of the same conduct.
What the Bill Proposes to Do
The Bill will make the following changes to the Act:
Section 60A (offences relating to the abstraction or diversion of electricity or damage or destruction of electrical equipment): There will be a mandatory minimum sentence for these offences of 10 years’ imprisonment in the absence of special circumstances. If there are special circumstances, a court will be able to impose a lesser, but still swingeing, penalty of a fine of up to level 14 (Z$500 000) or imprisonment for up to 10 years, or both.
Section 60C (offences relating to transporting material used for generating, transmitting or supplying electricity): Again, there will be a mandatory minimum sentence for these offences of 10 years’ imprisonment in the absence of special circumstances. If there are special circumstances, a court will be able to impose a lesser penalty of a fine of “up to or exceeding” level 14 or imprisonment for up to 10 years, or both.
Comment: It is difficult to understand what this new lesser penalty means, because if a fine is allowed to go “up to” level 14 it can’t exceed that level].
Finally, the Bill will repeal section 60(3) of the Act.
Comment: To repeal this provision is undoubtedly a good thing, because to convict someone of two offences for the same conduct amounts to double jeopardy, prohibited by section 70(1)(m) of the Constitution].
Comments on the Bill
Mandatory Minimum Sentences
The mandatory minimum sentences to be introduced are objectionable as in all cases, courts will have to impose 10-year prison sentences without the option of a fine if there are no special – i.e. unusual – circumstances peculiar to the case. We explained in our Bill Watch 48/2021 of the 6th July 2021 [link] that mandatory minimum sentences are undesirable because they deny courts the power to exercise one of their most important functions, which is to impose sentences on convicted persons that are fair to the State and to the accused and, where appropriate, are blended with a measure of mercy.
Moreover, if mandatory minimum sentences are grossly disproportionate to the crimes for which they are imposed they are unconstitutional: our courts have held that grossly disproportionate sentences amount to cruel punishment prohibited by section 53 of the Constitution. The new mandatory sentence for contravening section 60C of the Act certainly is grossly disproportionate. It will mean that a person must be sentenced to 10 years’ imprisonment for failing to produce on demand a police clearance certificate for transporting electrical equipment, even if the person has been given verbal clearance by the police or has been issued with a certificate but has mislaid it.
The Bill has not been properly checked to remove mistakes:
We have already noted the strange way in which one of the new penalties is worded: “a fine of up to or exceeding level fourteen”.
More obviously, the heading to clause 2 of the Bill states (correctly) that the clause will amend section 60A of the Act, yet the clause itself says it will amend section 60C. The heading, though correct, does not form part of the Bill [see section 7 of the Interpretation Act] so the clause will have to be taken to amend section 60C – which will be nonsensical – unless it is amended during the Bill’s passage through Parliament.
The Electricity Act already provides stiff penalties for contraventions of the Act, and the Bill goes overboard in trying to make them even stiffer. Mandatory minimum penalties are not the best way to deter crime because they are only imposed on criminals who are caught. If the Police are unable to catch criminals then crime will increase no matter what penalties the law may lay down. Theft and vandalising of electrical apparatus undoubtedly constitute a serious problem but the way to tackle it is to improve the capacity of the Police rather than to legislate for draconian and possibly unconstitutional penalties for the crimes.