Legal Digest – February 2016
Appeal against TPA dismissed
The Public Procurement Appeals Authority (PPAA) has dismissed an appeal that was lodged to it by a locally registered company and 11 others against Tanzania Ports Authority (TPA) regarding tender for Disposal by Sale of Sludge at Dar es Salaam Port.
According to the facts of the case, the local company and 11 others were dissatisfied with the decision of TPA to cancel the tender and to award it to another company through single source method of procurement. In their appeal, it was alleged that TPA did not observe the requirements of Regulation 69 (1) of GN. No.97 of 2005 which prescribes the procedures and justification for single source procurement.
TPA’s preliminary objections on locus and the appeal being time barred were overruled by the PPAA.
Having gone through the documents and submission by the parties, PPAA considered two issues; whether the award of the tender to the winning local company was made in observance of the law; and, to what reliefs if any, were the parties entitled to.
PPAA observed that the award of the tender was made in observance of the law since the provisions of Regulation 69(1)(b)(3)(4) and (5) of GN. No. 97 of 2005 was observed. However, PPAA observed that once a procuring entity has satisfied the requirements of Regulation 69 (1) (b) of GN. No. 97 of 2005 which was employed by TPA, neither the applicable law nor its regulations provides any guidance as to the manner or criteria of selecting a service provider on single source basis. Therefore in absence of any legal guidance, TPA was at liberty to choose a service provider as they deemed fit. The appeal was accordingly dismissed.
NEMC reminds citizens of law against noise pollution
NEMC said the council had been receiving several complaints from members of the public concerning noise pollution and has issued a warning against anyone planning to conduct a public event likely to cause noise pollution to first seek relevant permits to avoid legal measures including fines.
Noise pollution complained of included factories, bars, churches, entertainment halls and even vehicles. Noise pollution is said to cause hypertension, stress, hearing loss or even sleep disturbance to human beings. Other negative effects include interfering with organ production, navigation systems and can also lead to extinction of endangered species.
NEMC reminded individuals and companies that the environment law specifies penalties for the offence including fines ranging from Sh50,000 to Sh50 million, in addition to custodial sentences.
Government pushes tough new law to tame rogue herbalists
A new law will be fast-tracked to prohibit herbalists from advertising their services and products in the media.
We have been informed that the government would push for the amendment of the Traditional and Alternative Medicines Act of 2002 under a certificate of urgency.
Recently the government issued a directive barring herbalists from publicly advertising their herbs as the herbalists were misleading people.
The new law would impose tough penalties on any herbalist who would violate the principles set by the Alternative Health Practitioners Council of Tanzania (AHPCT).
Bunge committees given a new face
Parliament has announced changes in the structure of its Standing Committees.
AThe Speaker of the National Assembly, Mr Job Ndugai, made the changes to align the law-making organ with the structural changes adopted by the Fifth Phase Government.
“The changes have been made in accordance with powers conferred to the Speaker through section 155 (3) of the Standing Orders,” says part of the statement.
The Speaker is also empowered to introduce any changes in consultation with the Standing Orders Committee.
Under the changes, two new committee have been established. They are Committees for Legal Affairs and Public Investments.
Some committee names have been changed and Community Development and Social Services have merged into Community Services Development Committee. The Foreign, Security and Peace Committee has been formed after merging Peace and Security as well as Foreign Affairs Committees.
Committees whose names have been altered include Industry, Trade and Environment (former Industry and Trade); Land, Natural Resources and Tourism (changed from Land, Natural Resources and Environment); Administration and Local Government (changed from Regional Administration and Local Government).
Committees, which have retained their names and status include: Steering Committee; Standing Orders, Rights, Ethics and Privileges, Constitution and Justice; Agriculture, Livestock and Water, Infrastructure and Energy and Minerals.
Electricity (Electrical Installation Services) Rules come into force
Section 5(a) of the Electricity Act, Cap.131 gives the Energy and Water Utilities Regulatory Authority (EWURA) the mandate to issue licences to service providers in the electricity subsector. Electrical installation, being a licensed activity, empowers EWURA to issue licences for persons qualified to undertake electrical installation works.
Pursuant to section 8(1) (h) of the Electricity Act, Cap.131 EWURA has prepared the Electricity (Electrical Installation Services) Rules, 2015 which were gazetted on 11 September, 2015 through Government Notice Number 404 of 2015. The Rules can be accessed on the website (www.ewura.go.tz). The Rules provide for, among other things, the procedure for issuance of electrical installation licence and certificate to successful applicants.
The Electrical installation licences are to be renewed every two years.
Government bans Mawio newspaper
Under Government Notice no 55 of January 2016, the government under section 25(1) of the Newspapers Act (cap 229 R.E. 2002) banned the Mawio newspaper.
The notice stated that “The newspaper Mawio shall cease publication permanently including any electronic communication as per the Electronic and Postal Communication Act, with effect from 15th January 2016”.
Bulk sugar importation entity to be formed
A process to pave the way for the formation of an entity to oversee bulk sugar importation is expected to be completed within the next few months.
The new system is intended to ensure proper, efficient and effective management of gap sugar importation when and as required. The Sugar Industry Regulations of 2010 have been amended to recognise Bulk Sugar Importation through a Bulk Procurement Entity and structural issues of the entity were being finalized.
Formation of the entity comes amidst reports that local sugar producers are struggling to sell their products because of an influx of cheaper, smuggled sugar.
Around the World
New taxation rules for franchisors and franchise
SARS (South African Revenue Services) published draft guidelines for public comment on 12 February 2016, heralding what many may regard as controversial departure from franchising principles as we know them.
The terms and conditions contained in one’s franchise agreement, as well as the way in which intellectual property is described and the manner in which payments expended and received for the use thereof are construed, are just some of the important departures that SARS is proposing in determining the tax implications of franchised business models.
France parliament approves bill allowing sedation for terminally ill patients
French lawmakers approved a bill that will allow physicians to keep terminally ill patients sedated until death, opting not to extend the bill to cover physician-assisted suicide.
Under the new law, patients will be able to request “deep, continuous sedation altering consciousness until death,” though the request may only be granted when the patient’s condition is life-threatening in the short term. The bill will also allow for a consultation process with family members of a patient to reach the same relief of pain when a patient is unable to express his or her own will.
UK PM announces EU referendum date
UK Prime Minister David Cameron announced Saturday that the UK will hold a referendum on June 23 to vote on whether the nation will remain a part of the European Union (EU). EU and UK leaders met over the previous two days in Brussels to negotiate terms that would keep the UK in the union with a special status.
Bar Council chair Chantal-Aimée Doerries QC estimates that aspiring barristers may have to spend as much as £127,000 in order to qualify, severely hampering efforts to improve diversity and social mobility at the bar.
Doerries QC based the figure on a student living in London and opting to complete a
non-law undergraduate degree first. With the Graduate Diploma in Law (GDL) and Bar Professional Training Course (BPTC) still to go, an aspiring barrister in this category could be saddled with as much as £27,000 of tuition fee debt before they’ve even begun their legal training.
Facebook under fire for tax avoidance
Facebook paid under £5,000 in UK corporation tax last year, using a complex structure to book profits offshore.
Facebook is under fire in the UK for its tax arrangements.
An investigation based on filings to Companies House, found that the social media giant paid just £4,327 in corporation tax in 2014, less than the average employee in the UK pays in tax.
Tesco could be fined £500m over accounting scandal, say analysts
Tesco could face a £500m fine for the accounting scandal at the retailer, analysts have warned. The Serious Fraud Office may announce the findings of its investigation into the £326m black hole in the company’s accounts.
Tesco suspended four executives after the chief executive, Dave Lewis, revealed in September 2014 that a shortfall had been found in the retailer’s accounts relating to payments from suppliers. Tesco was accused of bringing forward payments to flatter its financial results as sales fell.