Adolf Ndudzo v The State

The appellant, an employee of Zimbabwe Electricity Transmission and Distribution Company (ZETD), was charged with contravening s 60A(3) of the Electricity Act [Chapter 13:19] for allegedly interfering with electrical apparatus. The allegations were that in June 2013, at 165 Smuts Road, Prospect, Waterfalls, Harare, the appellant and two accomplices removed a conventional meter (serial number 573625) and replaced it with a pre-paid meter (serial number 07087936378). In the alternative, he was charged with corruption under s 173(1)(a)(i) and (ii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] for concealing from his employer a personal transaction whereby he received $500 from the homeowner, Aerkanos Mutema, for installing the pre-paid meter. The appellant pleaded not guilty to both charges, was convicted after trial, and sentenced to 10 years imprisonment. He was a middle-aged first offender who had been employed by ZETD. Evidence showed that the meter reading department was being closed down due to introduction of pre-paid meters and employees had been advised to seek employment elsewhere.

• Whether the trial court erred in failing to specify which charge (main or alternative) the appellant was convicted of
• Whether the evidence supported conviction under s 60A(3) of the Electricity Act for interfering with electrical apparatus
• Whether removing and replacing a meter without damaging it or interrupting electricity supply constitutes 'interfering' under the Electricity Act
• Whether the appellant's conduct constituted corruption under s 173(1) of the Criminal Law (Codification and Reform) Act
• Whether the sentence of 10 years imprisonment was appropriate
• What constitutes an appropriate sentence for corruption involving breach of employment trust

1. The conviction in respect of the main charge (contravening s 60A(3) of the Electricity Act) was quashed and the sentence of 10 years imprisonment set aside. 2. The appellant was convicted of contravening s 173(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (corruption). 3. The appellant was sentenced to 24 months imprisonment, with 6 months suspended for 5 years on condition he does not commit any offence involving dishonesty for which he is sentenced to imprisonment without the option of a fine. Effective sentence: 18 months imprisonment.

1. Where a court tries a person on alternative charges, it must assess the evidence as a whole and make a definite pronouncement stating which charge the accused is convicted of and which charge they are acquitted of; failure to do so constitutes a serious misdirection. 2. Section 60A(3) of the Electricity Act, which prohibits interfering with electrical apparatus, requires conduct that either: (a) results in interruption or cutting off of electricity supply, or (b) constitutes cutting, damaging, destroying or interfering with the apparatus in a manner akin to vandalism. Removing and replacing meters without damaging apparatus or interrupting supply does not fall within this prohibition. 3. An employee who conceals from their employer a personal transaction whereby they obtain consideration not due to them under their employment agreement commits corruption under s 173(1)(a)(i) and (ii) of the Criminal Law (Codification and Reform) Act. 4. When an incorrect conviction is set aside on appeal but the evidence supports conviction on an alternative charge, the appellate court may substitute the correct conviction and impose an appropriate sentence.

The court observed that "It does not require the knowledge and ingenuity of a rocket scientist" to determine that the appellant's conduct did not fall within s 60A(3) of the Electricity Act, expressing the view that the distinction should have been obvious. The court noted that the legislature, by providing penalties up to level fourteen fines or imprisonment up to 20 years for corruption offences, "did not want persons who act in a corrupt manner to be treated with kid gloves." The court also commented on the context of the offence, noting that the appellant was "led into the commission of the offence by a colleague" after the employer's Human Resources Department announced the meter reading department would close and advised employees to seek employment elsewhere, though this did not excuse the criminal conduct. The court observed that the respondent's position that the sentence should induce a "sense of shock" was well-founded regarding the original 10-year sentence for the wrong offence.

This case establishes important principles regarding the interpretation of s 60A(3) of the Electricity Act in Zimbabwe, clarifying that merely removing and replacing electrical meters without damaging apparatus or interrupting supply does not constitute 'interfering' with electrical apparatus under the section. The case emphasizes the importance of judicial officers making clear and definite pronouncements when convicting accused persons on alternative charges, and highlights that failure to specify which charge resulted in conviction constitutes a serious misdirection. The judgment also provides guidance on sentencing for corruption offences involving employees who breach their employer's trust, balancing factors of greed and breach of trust against mitigating circumstances. It demonstrates the court's approach to correcting misdirections on appeal while still ensuring appropriate accountability for criminal conduct established by the evidence.