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Q&A – 17 July 2017

Registration of undesirable name

I am a Tanzanian living overseas intending to bring back my skillset and educate my fellow brothers and sisters. I wish to register some creative company names like Chuo Cha Washamba and Chuo Cha Wahuni. It will spark a lot of interest to join such institutes where I can reform and change many lives. My colleagues tell me it is not easy to register such a company in Tanzania. I fail to understand why. Please guide me as I want to really come back. 
PP, USA

We are proud of you when you say you want to come back and share your experience and help others in Tanzania. However we fail to understand why you want to register such derogatory names of institutes. Chuo cha Washamba means Institute for the stupid or Institute for the uncivilized. Chuo cha Wahuni means Institute for Hooligans. Imagine yourself showing your prospective employer a certificate from the Chuo cha Washamba, or a certificate from the Chuo cha Wahuni. Who would employ you?

Companies in Tanzania are expeditiously registered by the Registrar of Companies as provided for under the Companies Act. The process hardly takes few days and the process is very streamlined. However there is a specific provision in this Act that allows the registrar, based on his opinion, to refuse registration of a company name that is undesirable. We believe that both your names are not desirable and the Registrar of Companies will and should, correctly so, reject them and disallow registration. We suggest you think of other creative neutral names for your institute and proceed to register it accordingly.

Constitutionality of certain laws

We are fighting a very sensitive case at the Kisutu Resident Magistrate’s Court where the Magistrate seems to be unsure about the interpretation of a certain provision of the Constitution. Who can assist with such interpretation and how does the process work?
GW, Dar

The Appellate Jurisdiction Act has a specific provision to address this which states that where, in the course of any proceedings in a subordinate Court (other than a subordinate Court with extended powers), it appears to the magistrate that the determination of any issue or other matter in the proceedings involves a substantial question as to the interpretation of the Constitution, he may, at any time before judgment is pronounced, reserve that question for determination by the High Court; and where a magistrate so reserves that question, he may continue the hearing of the proceedings in respect of all or any other issues or matters in the proceedings or he may adjourn the hearing pending the determination of the question by the High Court.

The Magistrate therefore has the above option of reserving the matter to be determined by the High Court.

Donation to charitable institution

If I donate sums to a charitable institute can I deduct this as an expense in my profit and loss statement for income tax purposes? 
KF, Moshi

Section 16 of the Income Tax Act states that 1) for the purpose of calculating a person’s income for a year of income from any business, there shall be deducted (a) amounts contributed during the year of income to a charitable institution referred to in subsection (8) of section 64 or social development project; (b) any donation made under section 12 of the Education Fund Act; and (c) amount paid to local government authority, which are statutory obligations to support community development projects. (2) The deduction available under subsection (1)(a) for a year of income shall not exceed two percent of the person’s income from the business calculated without a deduction under that subsection. Therefore the maximum that is deductible is 2% of your business income.

Right to work

Our constitution guarantees the right to work and the right to be paid remuneration for the work done. I am a recent graduate and have been applying for work for almost two years now with no avail. I even applied for jobs in the government; however with the nepotism there, they never call me. I think this provision in the constitution is being breached especially for recent graduates. Can I file a suit in Court against the government and force them to get us jobs? What is the procedure? 
TK, Bukoba

We do understand that employment has been challenging as there are more graduates than the available employment. The right to work and right to remuneration for the work done are protected in the constitution to ensure that those two rights are protected. You however cannot sue the government because it has failed to employ you. Employment can either be through self employment or employment by the government or private sector. Hence if you are not employed by the government, the other employment options should be looked at.

The provision in the constitution on the right of employment does not mean that the government has to guarantee that every person has employment. We urge you to seek for creative ways to earn an income legally but such a suit against the government is not likely to succeed. You can consult your lawyer for further guidance.

Severance pay for misconduct

My company has been sued at the Commission for Mediation and Arbitration by one ex-employee who was terminated for stealing certain equipment. After termination we paid him his terminal benefits except severance pay. Although he admits to have been fairly terminated, this ex-employee now demands his severance pay as he worked for ten years. Is this employee legally entitled to this payment? Please advice.
TK, Mtwara

The Employment and Labour Relations Act, Act No 6 of 2004 as well as Rule 26 of the Employment and labour Relations (Code of Good Practice) Rules, 2007 recognize severance pay as one of the terminal benefits. However the same law does not place an obligation to an employer to pay severance to an employee who is terminated on grounds of misconduct. Your decision not to pay severance to the said ex-employee cannot be faulted and the claim by the said ex-employee will likely fail.

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