Hilary Muza 
Did you know that Egypt, Algeria, Morocco, and Tunisia are the only African countries with a 100 percent constant power supply? I highlight this to show that constant supply of power is and always has been one of the Zimbabwean economy’s, and indeed the entire African continent’s, Achilles heel.
As far as alternative sources of power are concerned, a comparison of Zimbabwe and South Africa reveals startling statistics. It is reported that approximately 96 percent of South Africans rely on the nation’s power grid for electricity.
By contrast, only approximately 45 percent of Zimbabweans solely rely on the national grid for power.
The explanation for this huge disparity is the use of solar energy. This development is recent, however.
Rolling blackouts are nothing new to Zimbabweans. No doubt most Zimbabweans living in urban areas have had to live with the steady hum of a generator in their ears as they go about their business in the home. Use of generators for backup power is simply a reality. There is no escaping it.
It is said that the law can be used to shape a people’s reality, or it can be used to reflect it.
Imagine if every user of a generator had to pay a licence fee to use it. Imagine if there were dire consequences associated with not complying with such a directive, such as hefty penalties or jail time?
Well, this almost became a reality when the Environmental Management Agency (EMA) reportedly issued a Msasa resident with a fine of ZWL100 000 for using a generator without a licence.
This is done in terms of section 64 of the Environmental Management Act (the Act).
What does the provision say?
Section 64 of the Act provides that “no owner or operator of a trade or any establishment shall emit a substance or energy, which causes or is likely to cause air pollution without an emission licence issued by the board.”
This gives EMA broad discretion in determining what a cause of air pollution is and what the threshold for acceptable emissions is. Fortunately, there is no need to do a deep dive on the meaning of this provision as EMA themselves have explained what it means by saying that the requirement to apply for licences to use backup generators does not extend to households. The fine issued by EMA naturally caused panic because of the wide use that generators enjoy both in homes and in industry.
Balancing the equities
While the imposition of fines by EMA might seem unfair, they are backed up by legislation. They are legal. EMA also has a duty to ensure that alternative sources of power are used safely and responsibly. The imposition of fines and custodial penalties has always been the best way to ensure compliance.
It makes sense that these fines exist. However, the reality is that the use of backup generators is so widespread that it would seem almost everyone is liable to be fined. This certainly is not the objective of the law. It is a salient principle that law should not exist to shackle and burn people. Instead, it must serve as a means of liberation. Hence, the clarification by EMA that only generators above 5Kva should be subject to licensing.
How to know if you must apply for a licence
The interpretation of section 64 proffered by EMA is that it clearly relates to industrial and commercial grade generators. They further reportedly explained that the threshold for requiring a licence is if the generator consumes 5kg per hour of fuel.
According to EMA’s own test, therefore, a generator must be used for commercial and/or industrial purposes and consume more than 5kg per hour of fuel.
According to a notice issued by EMA, owners of generators with an installed capacity of 100kW and above should be licensed. It reads in part:
“… it is necessary that all standby generators in Zimbabwe be registered with the authority and all operators of generators with an installed capacity of 100kW and above be licensed, so that safety compliance can be monitored. This is, therefore, to notify and advise the public that in terms of the law under the said Act:
a) All owners of electricity generator equipment are required to register their generators with the authority.
b) All operators of generating equipment of installed capacity of 100 kW and above are required in terms of Section 40 of the Act, to apply to the authority for a licence.
c) Companies operating private distribution networks should, in terms of Section 40 of the Act, apply to the authority for a licence to operate such networks.”
The requirements for applying for a licence for a generator with an installed capacity of 100kW is in terms of the Electricity (Licensing) (Amendment) Regulations, 2021 (No. 2) published in SI 101 of 2021.
Did EMA shift goalposts and should households pay?
Reports indicate that the fine that caused all of this ruckus was issued to an individual and not a company. Assuming that the generator in question was not a high-capacity one, then the fine would mean that all households would technically be subject to the fine.
Thankfully, due to EMA’s clarification, it does not seem so. That is not the end of the problem for households, however.
There must be subsidiary legislation that speaks directly to this issue, interpreting section 64 of the Act, so that the obligation to pay is clear without the need for EMA to interpret it for the people.
Muza is a duly admitted lawyer with expertise in business advisory, labour law and commercial litigation. He writes in his personal capacity. For feedback, email him at hilarykmuza@gmail.com or call on +263719042628.
