Q&A – 11 January 2021
Limitation period for appealing
I filed a suit founded on defamation in the District Court and lost. I now intend to appeal to the High Court. I am getting different opinions on the limitation period of appeal in my case. Some lawyers are telling me that the limitation period of appeal in defamation cases is 90 days but some are telling me it is 45 days. I am confused. Please guide me?
KF, Dar
We hope you did not wait till we responded to appeal as you will certainly be time barred!
What determines the limitation period for appeals from the District Court to the High Court in civil matters is the procedural law under which a party derives the right to appeal. The procedural law governing the appeal from the District Court to the High Court in defamation suits is the Civil Procedure Code (CPC).
According to item 1 Part II of the Schedule to the Law of Limitation Act [Cap.89 R.E 2002], an appeal from a District Court to the High Court under the CPC in matters for which no written law prescribes the period of limitation is 90 days. Neither the CPC nor the Law of Limitation Act prescribes the limitation period for appeals in defamation cases, hence the 90 day limitation period would apply.
Legitimate expectation of renewal of a fixed term contract
I was employed on a one-year fixed contract since January, 2014. The contract has been renewed four times. My last contract expired on 31st December, 2019. On 23rd December, 2019 my employer served me with a letter that he is not going to renew this last contract. He has not given me the reasons for non-renewal. I believe this is unfair termination because I had a legitimate expectation of renewal; the notice of non-renewal given to me was too short and no reason for non-renewal has been by the employer. Please advise me.
BB, Tanga
According to rule 4(2) of the Employment and Labour Relations (Code of Good Practice) Rules, 2007 (Rules), a fixed term contract terminates automatically upon expiration of the agreed period unless the contract provides otherwise. The employer is not bound to give a notice of non-renewal of a fixed term contract unless the contract itself imposes such obligation on the employer. The law does not prescribe the duration of the notice of non-renewal of employment contract. However, parties to the employment contract may insert in their employment the duration of notice of non-renewal to either party. If a contract does not contain a clause on duration of notice of non-renewal, the employer may decide the length or may not even give the notice because a fixed term contract expires automatically.
An employee serving a fixed term contract cannot claim unfair termination on grounds of reasonable or legitimate expectation of renewal as provided section 36(a)(iii) of the Employment and Labour Relations Act (Act) and rule 4(4) of the Rules if, prior to the contract expiry date, the employer served him with a notice of non-renewal, if that was a requirement. In your contract there does not seem to be such a requirement.
Although section 39 of the Act generally imposes the burden of proof on the employer to prove fairness of the termination, where an employee challenges the fairness of termination on the basis of legitimate or reasonable expectation of renewal of a fixed term contract, it is the employee who is required by rule 4(5) of the Rules to prove her/his basis of reasonable expectation of renewal.
We suggest you contact a labour specialist who can guide you further.
Minimum government shares in mining companies
The Mining Act has a provision whereby the Government shall have a 16% shareholding in mining companies which shareholding can go up to 50%. Are there any further guidelines on this? What is the purpose of such unusual shareholding?
CG, Dar
This is not as unusual as you make it to be. A good number of African, South American and Asian countries have introduced free carried interest provisions in their mining laws in a bid for the state to benefit more from its own resources.
In a bid to ensure Tanzanians also enjoy a share of their minerals, section 10 of the Mining Act, R.E. 2019 (the Act) imposes a mandatory requirement to the mining companies in Tanzania to afford/grant the Government of Tanzania (GoT) a minimum of 16% non-dilutable free carried interest shares in the capital of a mining company. As you have stated, the Act stipulates that the GoT’s non-dilutable free carried interest shares can be increased up to 50%.
On 30 October 2020, the Minister for Minerals published the Mining (State Participation) Regulations, 2020 (the Regulations). The Regulations have been published to give more details on the acquisition and control of the GoT’s non-dilutable free carried interest shares in a mining company. The Regulations clarify that the acquisition of shares shall be determined by the total value of tax expenditures enjoyed by a mining company or a person holding a Mining Licence or Special Mining Licence through tax exemptions and reliefs. What the above implies is that the more tax incentives the mining company enjoys, the higher the percentage of non-dilutable free carried interest shares the GoT will be entitled to.
In assessing the level of investment made by a mining company for the purposes of GoT shareholding, the Regulations require the Mining Commission in consultation with the Treasury Registrar and TRA to consider the capital invested; mining technology involved; profit; and total tax value of tax expenditures enjoyed by the mining company.
Moreover, the GoT is empowered to review tax expenditures every two years that are enjoyed by the mining companies so as to determine the number of further shares to be acquired by the GoT. Hence, the initial minimum 16% shareholding by the GoT can be increased after every two years.
It is worth noting that after the GoT having acquired the free carried interest shares, the Regulations entitles the GoT, among others, the right to be issued with a share certificate; to be registered as a member of the company; to participate in the statutory meetings and the governance; to access companies reports; to appoint a director and to receive dividends. Further, the Regulations provide that the GoT shall enjoy the right to receive a proportionate share from any repayment of either equity, shareholding loan or third party loan.