The Copper Control Amendment Bill – Bill Watch 48/2021

Introduction

The Copper Control Amendment Bill was published in the Gazette last month and has not yet been presented in Parliament. The Bill proposes to amend the Copper Control Act [which we shall call “the Act” in this bulletin] by requiring copper dealers to keep better records and by providing mandatory minimum penalties for contraventions of the Act. The Bill can be accessed on the Veritas website as can the Act itself.

What the Existing Act Does

To understand the amendments the Bill is going to make to the Act, one needs to understand some of the Act’s current provisions;

  • The Act requires people who carry on business as scrap metal merchants to be licensed if they purchase or sell copper tubing, copper sections or copper wire. These people are called “dealers” in the Act, and copper tubing, sections and wire are referred to as “copper”.
  • Anyone who is not licensed and who carries on business as a dealer is guilty of an offence and currently liable to a fine of up to level 7 [currently Z$120 000] or imprisonment for up to a year or both [section 3 of the Act].
  • Licences are obtainable from the Ministry of Home Affairs on payment of a fee fixed by Parliament – though how Parliament can fix the fee is not stated [section 4 of the Act].
  • Dealers, whether licensed or not, must keep registers of all copper – i.e. copper tubing, sections and wire – that they buy or sell. These registers must identify the persons from whom the dealers buy copper and the persons to whom they sell it. Dealers must allow the police to inspect their registers. Failure to keep a register is a criminal offence carrying a maximum sentence of a fine of level 5 [Z$30 000] or imprisonment for six months or both [section 5 of the Act].
  • No one may buy copper – and remember that in the Act “copper” means copper tubing, sections and wire – unless the seller provides the buyer with documentary evidence in the prescribed form of his or her title to sell it or a certificate of clearance from a senior police officer [section 6 of the Act]. Contravention of this section is a criminal offence carrying a maximum sentence of a fine of level 7 [Z$120 000] or imprisonment for a year or both.
  • Dealers who are found in possession of stolen copper and who cannot account satisfactorily for their possession are guilty of an offence and liable to a fine of up to level 8 [Z$200 000] or imprisonment for two years or both [section 9 of the Act].
  • Similarly anyone, whether a dealer or not, who is found in possession of copper reasonably suspected of being stolen and who cannot give a reasonable explanation for possessing it is guilty of an offence and liable to a fine of up to level 8 [Z$200 000] or imprisonment for two years or both [section 10 of the Act].
  • Anyone who receives copper from another person without having reasonable cause to believe the other person is entitled to dispose of it is guilty of an offence and liable to a fine of up to level 8 [Z$200 000] or imprisonment for two years or both [section 11 of the Act].
  • A court that convicts a person of an offence involving copper can order the copper forfeited to the State [section 13 of the Act].

The Act therefore strictly controls transactions involving copper tubing, sections and wire, whether the transactions are conducted by dealers or by other people. Heavy penalties are provided for contraventions of the Act – and one must bear in mind that even six months in a Zimbabwean prison is a severe punishment.

Nonetheless the Bill sets out to make the Act even more stringent.

What the Bill Proposes to Do

The Bill will make the following changes to the Act:

Fee for dealer’s licence

The Bill will amend section 4 of the Act to remove the provision for Parliament to fix the fee payable for dealers licences and to confer that function on the Minister of Home Affairs in consultation with the Minister responsible for finance. This is a necessary amendment, but unfortunately it does not specify how the Minister is to fix the fee. He should not do so by administrative instruction because that might lead to corruption and other abuses. Ideally he should fix the fee in regulations under section 13 of the Act, and the amendment should state this.

Certificates of origin for possession of copper

As we have said above, section 6 of the Act prohibits anyone from buying copper tubing, sections or wire unless the seller has provided the buyer with proof that he or she is entitled to sell it, and the proof must consist either of such documents as the Minister may prescribed or a certificate of clearance from a senior police officer. The Bill is going to take this further by inserting a new section 4A which will prohibit dealers and “putative dealers” from possessing or dealing in copper unless they hold a prescribed certificate of origin endorsed by a police officer in charge of a police district. Contravention of the new section will render them liable to a mandatory 10 years’ imprisonment in the absence of “special circumstances peculiar to the case”. Apart from the mandatory sentence, which we shall deal with later, there are the following defects in the new section:

  • “Putative dealer” is defined in an unsatisfactory fashion as: “a person who is presumed (in the absence of evidence to the contrary) to be in possession of copper for the purpose of dealing in it”, which does not say who is to do the presuming – is it the police, or a court, or who?
  • The new certificates of origin will largely duplicate the clearance certificates which are already required under section 6 of the Act. Both certificates will have to be signed by senior police officers and both will be applicable to the same pieces of copper.
  • The new section will require dealers to get clearance from senior police officers – officers in charge of a police districts, no less – every time they obtain a piece of copper tubing, section or wire. Apart from the onerous duty this imposes on dealers, surely officers in charge of police districts have better things to do than inspect every piece of copper that a dealer brings to them?

Vandalism of utilities

The Bill will insert a new section 10A in the Act which will make it a criminal offence to vandalise utilities – telecommunication and broadcasting services, the National Railways and ZESA – through the theft of copper cables. Anyone who does so will be liable to a mandatory minimum prison sentence of 10 years in the absence of special circumstances.

Possession of stolen copper

The Bill proposes to insert a new section 10B which will make it an offence for anyone to possess or deal in stolen copper. Again the penalty will be a mandatory minimum ten years’ imprisonment in the absence of special circumstances.

Apart from the mandatory penalty, the problem with this section is that it will penalise possession or dealing in stolen copper even if the person who possesses or deals in it is unaware that it is stolen. There also seems to be an overlap between the new section and the existing section 10, mentioned above, which penalises possessing copper that is suspected of being stolen.

Forfeiture of vehicles used to transport illegal copper

The Bill will amend section 13 of the Act to provide that upon convicting a person for any offence under the Act, a court “shall” – which means must – order the forfeiture of any vehicle or other device used in transporting illegal copper.

As with all the other provisions of the Bill, there are problems with this one:

  • The court is given no discretion: it must order forfeiture whatever the circumstances may be, even if the forfeiture would result in a wholly disproportionate punishment, and even if the vehicle or other device belonged to someone who is completely innocent of the crime. What if the convicted person had stolen the vehicle – must the innocent owner suffer forfeiture?
  • Section 13 already contains a provision stating that a court may – not must – order forfeiture of copper that is involved in an offence. The new provision could lead to inconsistency where, for example, a person steals copper from ZESA and uses a stolen ZESA truck to transport it: the court would order the copper to be returned to ZESA but would have to order ZESA’s truck to be forfeited to the State.

Section 62 of the Criminal Procedure and Evidence Act makes adequate provision for forfeiture of articles following conviction in criminal cases. There is no need for this new provision.

Mandatory Minimum Sentences

Perhaps the greatest problem with the Bill lies in the mandatory minimum sentences which it prescribes for offences involving copper: 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.

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. There is also the point that the constitutional requirement for trials to be fair (section 69 of the Constitution) extends to all stages of criminal proceedings including the imposition of sentence. Sentences must therefore be fair.

Under the Bill, courts would have to impose ten-year prison sentences in the following cases:

  • on a person convicted of possessing a short length of copper wire without a certificate of origin, even if he or she had acquired the wire perfectly legally and the wire was not stolen. Those mitigating circumstances would not count as “special circumstances” justifying a lesser sentence, because they are not unusual.
  • on a person who fails to explain his or her possession of copper that is reasonably suspected of being stolen, even if that suspicion turned out on further investigation to be unfounded. Again, the mitigating circumstances would not count as “special”.

Mandatory 10-year sentences in those cases would not be fair – and those are only the most obvious instances where they will wreak injustice.

Conclusion

The best way to stop crime is by improving the capacity of the police and other law enforcement agencies to detect and investigate crimes. Without improved law enforcement, increased sentences will have little effect. The Copper Control Act already imposes strict controls on copper dealers and provides stiff penalties for contraventions of the Act. If those controls were stringently enforced, and offenders were prosecuted diligently and sentenced to the penalties currently specified in the Act, theft of copper would be materially reduced. There is really no need for this Bill.

Source: Veritas

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