BILL WATCH 52/2022

[2nd November 2022]

The Electricity Amendment Bill : Further Thoughts

The Electricity Amendment Bill [link] is currently being considered by Parliament.  We analysed it in Bill Watch 42/2022 of the 16th September 2022 [link].  The Bill proposes to introduce mandatory minimum sentences of 10 years’ imprisonment for various offences under the Electricity Act, including offences laid down in section 60C(2) of the Act.

Section 60C : Transporting Electrical Material

Section 60C is concerned with the transport of “material used in connection with the generation, transmission, distribution or supply of electricity”, which is defined as meaning any component essential for maintaining an electricity generation, transmission, distribution or supply infrastructure.  For brevity we shall call it “electrical material”.

Under section 60C(2), if the Police stop a vehicle carrying electrical material and the driver or person in charge of the vehicle fails to produce a special police clearance certificate or customs clearance documentation for the material, the driver or person in charge is guilty of a criminal offence and liable to a fine of up to level 14 (currently Z$500 000) or imprisonment for up to five years or both.  The section imposes similar criminal liability and penalties on the owner of the vehicle, if he or she authorised the transport of the electrical material.

The Bill will make the penalty for this offence much more severe:  a ten-year mandatory minimum prison sentence in the absence of special circumstances peculiar to the case – there is no definition of what these special circumstances might be.

Excessive Breadth of Section 60C

In our earlier Bill Watch we said that the new penalty proposed by the Bill is grossly disproportionate.  It is, but we should have added that the offence laid down in section 60C of the Act is also grossly disproportionate.  It is excessively, almost ludicrously, wide:

• It is no defence for drivers to prove that they own the electrical material being carried in their vehicles.  If they cannot produce special police clearance certificates or customs clearance documents on demand, they are liable to severe penalties and, if the Bill becomes law, will go to gaol for 10 years.
• Similarly, ZESA employees driving a vehicle with electrical material to repair a fault are also liable to imprisonment if they cannot produce the requisite police clearance certificates or documents.
• Electricians, solar systems, pool pump or irrigation installers, etc, carrying cables to customers are also covered by the section and liable to imprisonment if they are not carrying police clearance certificates.
• Drivers who have been given verbal permission by the police to carry electrical material are also liable to punishment under the section if they cannot produce written clearance certificates, and so are drivers who have mislaid their certificates and cannot produce them on demand.

The fact that these persons have not been charged and punished under the section attests to the good sense of the police, but we should not have to rely on their good sense to keep the section within reasonable bounds.  The section itself should be amended to impose proper limits on its extent.

It is to be hoped that the Bill will be amended to do this during its passage through Parliament.

Overlap with Copper Control Act?

Another point that should be considered wwho possesses copper cables, sections or tubing “for consideration”, which (if it has any meaning at all) seems wide enough to cover ZESA employees and electricians.  Hence electricians,hen the Bill passes through Parliament is that its provisions may overlap with the Copper Control Act.  Under that Act, which has recently been amended by the Copper Control Amendment Act 2022 [link], it is an offence for “putative dealers” to possess copper cables, sections or tubing without a prescribed certificate of origin.  The term “putative dealer” is defined as anyone etc., bringing copper cables for their customers’ installations or repairs will have to carry not only a special police clearance certificate under the Electricity Amendment Bill but also a prescribed certificate of origin under the Copper Control Act.  If they fail to produce either document on demand by a police officer, they will be liable to 10 years’ in prison without the option of a fine.