The
appellant was charged with contravening section 60A(3) of the
Electricity Act [Chapter
13:19].
He was, in the alternative, charged with contravening section
173(1)(a)(i) and (ii) of the Criminal Law (Codification and
Reform) Act [Chapter
9:23].
The
allegations which the State preferred against him in respect of the
main charge were that, on a date to the prosecutor unknown but ...
The
appellant was charged with contravening section 60A(3) of the
Electricity Act [Chapter
13:19].
He was, in the alternative, charged with contravening section
173(1)(a)(i) and (ii) of the Criminal Law (Codification and
Reform) Act [Chapter
9:23].
The
allegations which the State preferred against him in respect of the
main charge were that, on a date to the prosecutor unknown but in
June, 2013 and at 165 Smuts Road, Prospect, Waterfalls, Harare, the
appellant and two others removed a conventional meter with serial
number 573625 and replaced it with a pre-paid meter with serial
number 07087936378. It was the contention of the State that, when the
appellant and his accomplices acted as they did, they interfered
with an apparatus
which
is used for transmitting or supplying of electricity to House Number
165 Smuts Road, Prospect, Waterfalls, Harare.
The
State's allegations, in respect of the alternative charge, were
that, on a date to the prosecutor unknown but in June 2013, and at
Smuts Road, Prospect, Waterfalls, Harare the appellant and his two
accomplices unlawfully and intentionally corruptly concealed from
their principal, Zimbabwe Electricity Transmission and Distribution
Company, a personal transaction intending to obtain a consideration
in the sum of $500= after the installation by them of a pre-paid
meter. The consideration, the State claimed, was not due to them in
terms of the agreement which existed between their principal and
them.
The
appellant pleaded not guilty to both the main, and the alternative,
charges. He was, however, convicted after a fully-fledged trial…,.
The
appellant and the respondent were ad
idem
on the point that the evidence of the State did not support the
conviction of the appellant on the main charge. The court agrees with
the parties' position on the matter….,.
The
section which pertains to that charge prohibits persons from cutting,
damaging or interfering with an apparatus which generates, transmits,
distributes or supplies electricity. The only occasion where a person
is allowed to interfere with such an apparatus is where the law
allows him to do so for one reason or the other. The apparatus which
is contemplated in
casu
is the conventional meter. The appellant and another or others
removed, and replaced, it with a pre-paid meter.
The
question which begs the answer is whether or not, in acting as they
did, the appellant and his accomplice(s) interfered with the
apparatus.
The
interpretation section of the Electricity Act does not define the
word “interfere”. However, a correct interpretation of the word
can easily be gleaned from a reading of the section which creates the
offence. The section reads, in part, as follows:
“(3)
Any person who, without lawful excuse the proof whereof shall lie on
him or her –
(a)
Tempers with any apparatus for generating, transmitting, distributing
or supplying electricity with
the result that any supply of electricity is interrupted or cut off;
or
(b)
Cuts, damages, destroys or interferes with any apparatus for
generating, transmitting, distributing or supplying electricity;
shall be guilty of an offence.”…,.
It
does not require the knowledge and ingenuity of a rocket scientist to
ascertain that the
appellant and his accomplices did not contravene paragraphs (a) or
(b) of section 60A(3) of the Electricity Act [Chapter 13:19].
The
conduct of the appellant and his accomplice(s) did not result in the
supply of electricity being interrupted or cut off as is contemplated
in paragraph (a) of the section. Equally, their conduct did not
constitute an act of vandalism which paragraph (b) of the section
contemplates. The evidence which the State led did not support the
appellant's conviction on the main charge. The court a
quo,
accordingly, erred when it convicted the appellant, as it did, on the
main charge….,.
The
court has considered all the merits and demerits of this appeal. It
is satisfied that the appellant proved, on a balance of
probabilities, his innocence in respect of the main charge. He,
however, stands properly convicted of the alternative charge. The
appeal, therefore, succeeds in part.
It
is, in the result, ordered as follows:
1.
The conviction of the appellant, in respect of the main charge, be
and is hereby quashed and the sentence of 10 years imprisonment set
aside.
