Q&A – 16 January 2017
Inappropriate behaviour in nightclub
After having had too many drinks in a nightclub, I must admit that I inappropriately held a woman and caused a huge disruption. Although she said that she would forgive me, in breach of this forgiveness agreement, she reported me to the police. I am now being threatened with prosecution. How can she turn around me like this? How serious is the matter?
JJ, Dar
Our Penal Code states in section 135 that any person who unlawfully and indecently assaults any woman or girl is guilty of a felony, and is liable to imprisonment for 14 years.
The same section provides even further protection to women and states that whoever intending to insult the modesty of any woman utters any word, makes any sound, or gesture, or exhibits any object, intending that such word or sound shall be heard, or, that such gesture or object shall be seen by such woman, or intrudes upon the privacy of such woman, is guilty of a misdemeanour and is liable to imprisonment for one year.
What you described to us in your e mailed question likely amounts to indecent assault and once you have committed this, the agreement by the woman to ‘forgive’ you and the breach thereof has no basis under our criminal statutes.
This is a very serious offence and you could see yourself spending 14 years in jail. You should consult a criminal defence counsel to guide you further.
Automatic right to foreign arbitration
We are a foreign investor having a dispute with the Government. We believed when we invested that we have an automatic recourse to international arbitration. Our lawyer thinks otherwise. Please guide.
YE, Mwanza
Your lawyer is right. Unless the agreements, if any, that you entered into have a specific arbitration clause, there is no automatic triggering of arbitration, unless of course the Government agrees.
The Tanzania Investment Act states that a dispute between a foreign investor and the Centre or the Government in respect of a business enterprise which is not settled through negotiations may be submitted to arbitration in accordance with any of the following methods as may be mutually agreed by the parties, that is to say- (a) in accordance with arbitration laws of Tanzania for investors; (b) in accordance with the rules of procedure for arbitration of the International Centre for the Settlement of Investment Disputes; (c) within the framework of any bilateral or multilateral agreement on investment protection agreed to by the Government of the United Republic and the Government of the Country the Investor originates.
Therefore in the absence of an arbitration clause in your agreements, you cannot automatically trigger foreign or local arbitration alone. The Government must agree.
Unfair term in contract
I have been constructing a house and appointed a friend of mine as the contractor. He did a below average job and we have now realized that the foundation and roofing are not done properly. We have hardly moved into the house two months ago and we are told by another contractor that we need to do some more work on the house. I asked our contractor and he pointed me to a clause in the contract that states he is not liable for any such mishaps i.e he cannot be blamed. I did read the contract and admittedly I signed it without properly reading it. What can I do? My lawyer said I should have contacted him before signing the contract and not after, and that there is nothing much that can now be done since the contract is clear that the contractor doesn’t bear any liability? Please help.
NG, Dar
It is true that most signatories of contracts do not properly read contracts before signing them. It is with that in mind that in other countries there is a specific law on unfair contract terms whereby such clauses are not allowed, or if inserted, cannot be enforced. Unfortunately we don’t have such a specific act here.
The general principle of law is that parties are bound by what they have agreed to. This is a principle that is also widely applied here. Notwithstanding the above, it is quite clear from common sense and common law principles that having appointed a contractor, who we presume is registered with the Contractors Registration Board (CRB), the contractor cannot run away from his obligation to properly construct your house. In contract law it does not matter if he is your friend or not.
There is also a number of interesting foreign case laws that interpret such exclusion clauses of liability in your favour by holding that there is a common law implied term into the contract whereby a contractor or specialist is supposed to perform to a minimum certain expectation, which in your case the contractor hasn’t.
Your lawyer should not give up so easily and you should perhaps get a second opinion. We believe you can make a good case to hold your contractor liable. Next time do not sign contracts without properly reading them. It is these one or two liners in contracts that cost you the billions.
Surety for my boss
I am surety for my boss in which he has been criminally charged. I wish to remove myself from being his surety. Can I do so? Can I be fired for such withdrawal?
TE, Dar
The Criminal Procedure Act allows a surety to withdraw. You need to make an application to the magistrate, which you can do orally. On such application being, made the magistrate shall issue a warrant of arrest directing that your boss be brought before the Court.
Your boss will have a chance to replace someone else as a surety otherwise he will be sent to remand prison pending satisfaction of a surety. It might be wise to inform your boss beforehand that you intend to withdraw being his surety to allow him prepare another surety.
As for your employment, just because you removed your name as a surety is no ground for your boss to fire you. If he does, it would be an unfair termination.