Q&A – 23 April 2012
Cheat in school
I am a senior executive in a very successful company in Dar es Salaam. I am taking evening lectures where I go with my assistant to take my notes during class. It is just more convenient. My fellow students reported me to the teachers and my assistant has now been disallowed from entering class with me. Is this fair? What can I do?
RP, Dar
Your question is ‘what can I do’? The answer is ‘wake up to reality.’ We presume that you are the student and not your assistant. Why would you take your assistant to class to take your notes when you can take the notes yourself? Next thing you will ask permission for is your assistant to do your assignments or write your exam for you.
Your assistant also ceases to be your assistant after office hours. Attending class with you is surely not part of his job profile. He can even sue you at the labour Courts for taking him to class with you. Our piece of advice: go to class alone and use your own brain. And yes on a lighter side, if your assistant is as smart as you are, you might end up becoming his assistant one day.
Charged for traffic offence
I have been charged with dangerous driving. My accident happened late at night when I had left a club heading home. It was unavoidable as a Bajaj came right in front of me and caused the accident. What should I do?
SP, Dar
The Road Traffic Act under which you are charged is clear that “that any person who causes bodily injuries to, or the death of, any person by the driving of a motor vehicle or trailer recklessly or at a speed or in a manner which having regard to all the circumstances of the case, is dangerous to the public or to any other person shall be guilty of an offence.”
The same Act also states that “an offence under the above section shall be liable to a term of imprisonment of not less than three years and the Court may, in addition thereto, impose a fine not exceeding one hundred thousand shillings.”
From the above, please note that if you are charged with dangerous driving and if convicted, will be sentenced to jail. There is no option of only a fine. We advice you to prepare a good defence and consult an attorney.
International convention on sale of goods
I ordered goods from a Chinese supplier in mainland China that were seriously damaged enrouteto Tanzania. The contract is a free on board contract (FOB). The only problem is that we are unsure where to lodge our case- in China or in Tanzania. The matter has been reported to the Chinese consular who are supportive but say that this is a commercial matter and needs to be resolved between the parties. The contract is governed by the UN convention on the international sale of goods (CISG). Can we lodge a complaint with the UN? Please advise how we should proceed. Our lawyer says we should open a case here.
RL, Dar
The United Nations Convention on Contracts for the International Sale of Goods (CISG) sometimes referred to as the Vienna Convention is a treaty offering a uniform international sales law. As of August 2010, it had been ratified by 77 countries which account for a significant proportion of world trade, making it one of the most successful international uniform laws. Tanzania has not ratified the convention hence it is not directly or automatically applicable to Tanzania.
The CISG allows exporters to avoid choice of law issues, as the CISG offers “accepted substantive rules on which
contracting parties, courts, and arbitrators may rely”. The CISG was developed by the United Nations Commission on International Trade Law (UNCITRAL), and came into force in 1988.
The adoption of the CISG provides modern, uniform legislation for the international sale of goods that would apply whenever contracts for the sale of goods are concluded between parties with a place of business in Contracting States. In these cases, the CISG would apply directly, avoiding recourse to rules of private international law to determine the law applicable to the contract, adding significantly to the certainty and predictability of international sales contracts.
Back to your question. You first ask us if you can report this to the UN. The answer is unlikely that you will be successful because the UNICITRAL assisted develop the law. It does not directly execute it.
Your second question is how you should proceed. If there is any ways of amicably sorting the matter out, without resorting to Court or arbitration, then you should seriously consider that option. In any such Alternate Dispute Resolution (ADR), there is normally some give and take and you should be flexible during negotiations.
Assuming the contract does not have an arbitration clause and ADR fails, then you have no choice but to proceed to Court.The next question is where you should sue the supplier. We have not seen the sale contract but it is our considered opinion that you institute a suit in China for the simple reason that should you be successful in China, you will be in a position to directly execute the Judgment against the supplier in China. If you sue in a Tanzanian Court, the Judgment from our Tanzanian Court will have no legal effect in China as there is no reciprocal of enforcement of judgments agreement or act between Tanzania and China. You are in a precarious position and should consult both a Tanzanian and Chinese law firm.