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Q&A – 24 April 2017

Cyber Crimes Act threat to facebook

I have been informed that with the Cyber Crimes Act in place, what we write on facebook, as a joke or comment can be used against us in Court? Can I please understand more on this law as I am a facebook addict and cannot live without it?
FG, Mwanza

The Cyber Crimes Act of 2015 has provided some very strict provisions that could make you liable for a fine or imprisonment, or both. We believe the section that affects you the most as a facebook fan is section 16 which we have reproduced below and recommend you read carefully.

Section 16 states that any person who publishes information or data presented in a picture, text, symbol or any other form in a computer system knowing that such information or data is false, deceptive, misleading or inaccurate, and with intent to defame, threaten, abuse, insult, or otherwise deceive or mislead the public or counselling commission of an offence, commits an offence, and shall on conviction be liable to a fine of not less than five million shillings or to imprisonment for a term of not less than three years or to both.

Therefore when you post on your facebook page information, it does not matter whether or not you are joking, you could still be committing an offence as long as it is false, or misleading or inaccurate, and your intention is to defame, threaten or mislead the public. We believe this also applies to those who like or dislike the comment, and those who further add their comments to what was initially said. Hence your friends can also get into trouble.

For example if you post that a certain police station had police officers sleeping at night and you were not attended to, if this information was false you would fall foul of section 16. Another example is when you make comments about service levels at public organisations, or how you were treated somewhere, if the information is false, or even inaccurate and it was deemed to be insulting, you could end up facing criminal charges under this law.

This is a very strict section of the Cyber Crimes Act and all facebook fans who forward information should be careful. Infact this would apply to Tweeter as well as Whatsapp amongst others. The constitutionality of this section, amongst other sections, we believe is being challenged in Court on grounds that they are curtailing the freedom of speech that is enshrined in the constitution.

Until the Courts make a decision, this is the law and you must be very careful of what you write in such social media.

Impossibility of performance

I am a second year law student and find it hard to understand how impossibility of performance can render a contract terminable? Does it not make one party richer in case part of the contract has been performed?
GO, Dar

In contract law, impossibility is an excuse for the nonperformance of duties under a contract, based on a change in circumstances (or the discovery of preexisting circumstances), the nonoccurrence of which was an underlying assumption of the contract, that makes performance of the contract literally impossible.

For example, if a person ‘A’ contracts to pay person ‘B’ TZS 100,000 to renovate his house, and if the house burns down before such renovations begin, A may be excused from his duty to pay B the TZS 100,000, and he is excused from his duty to paint the house; however, B may still be able to sue under the theory of unjust enrichment for the value of any benefit he conferred on A before the house burned down.

The parties to a contract may choose to ignore impossibility by inserting a hell or high water clause, which mandates that payments continue even if completion of the contract becomes physically impossible. This however would depend upon the way the contract and this clause is drafted. This clause is not very commonly used in Tanzania.

In common law, for the defence of impossibility to be raised, performance must not merely be difficult or unexpectedly costly for one party, there must be no way for it to actually be accomplished; however, it is beginning to be recognized that impossibility under this doctrine can also exist when the contemplated performance can be done but only at an excessive and unreasonable cost, i.e., commercial impracticability.

We must however state that some cases see impossibility and impracticability as being related but separate defences. Taylor v. Caldwell is an old English case that established this principle. We recommend you read it to get a better feel of this defence.

Attachment of audited accounts to annual returns

Is it true that when we file annual returns the Company must also file annual audited accounts? Our company has been in existence since the late 1970’s and we have never done so. Why would I have to file my annual accounts that then become accesible publicly?
GK, Dar

Section 132 of the Companies Act states that a Company, other than one that is exempt from appointing auditors, which you likely are not, must annex to the annual return a copy, certified both by a Director and by the Secretary of the company to be a true copy, of the accounts laid before the company in a general meeting during the period to which the return relates (including every document required by law to be annexed to the accounts); and a copy, certified as above, of the report of the auditors on, and of the report of the directors accompanying, each such balance sheet.

The law that governs your company dictates what you should file in your annual return. Having said that, we are informed that most companies in Tanzania have not complied with this requirement of filing accounts. That, however, does not change the position of the law that requires all companies to file such annual accounts.

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