Q&A – 13 May 2019
Suing hotel with beds having no side rails
I came specially to Dar from upcountry to watch a premier league game and stayed in a big hotel. After watching the game, I fell asleep on the bed only to fall down late at night seriously injuring my left hand and leg. I want to sue the hotel for not proving side rails on the bed for safety. What are my chances of succeeding in the suit and what should I be doing?
We find it hard to understand why you would come from upcountry to Dar and stay in a hotel to watch a premier league football game on tv. You could have easily watched this from upcountry! We find this quite awkward and in case you decide to sue, this could be raised so be prepared.
Just as rolling and falling out of bed is quite uncommon in adults, it is equally uncommon for hotels to have side rails. As such, unless you have special needs, had informed the hotel about this and they failed to act, we believe you have a weak case. Your lawyer can further investigate and guide you appropriately.
Statutory maintenance of records under anti money laundering legislation
I am an accountant and had assisted a client in the transfer of a property and company shares in 2011. I kept the records for 5 years before I put the them in storage where I am unable to trace them. Recently there arose an inquiry on the transaction and I have been asked to present some of the documents. What is the statutory period for me to have retained the documents? I cannot understand why they are calling upon me to present documents that they have in their possession? Please guide me.
As an accountant the Anti Money Laundering Act defines you as a reporting person. Regulation 30 states that (1) A reporting person shall retain records required by section 16 of the Act for a minimum period of ten years from the date- (a) when all activities relating to a transaction or a series of linked transactions were completed; (b) when the business relationship was formally ended; or(c) where the business relationship was not formally ended but when the last transaction was carried out. (2) where a reporting person is required by any enactment to release a record referred to in sub regulation (1) before the period of ten years lapses, the reporting person shall retain a copy of the record. (3) Where a report has been made to the FIU pursuant to the provisions of the Act or the reporting person knows or believes that a matter is under investigation, that person shall without prejudice to sub-regulation (1), retain all relevant records for as long as may be required by the FIU. (4) For the purpose of this regulation, the question as to what records may be relevant in the analysis process may be determined in accordance with the Guidelines.
Based on the above, you are required to have retained the records for 10 years. Your lawyer can guide you further.
Husband married twice
I got married to a person I thought was single until when I found out that he has another wife. Under our religion he cannot have more than one wife at the same time. Can I divorce him?
From the limited facts we have, it seems that you entered into a void marriage contract meaning that you were never married and hence may not even need a divorce. However your lawyer can guide you further on steps to take. In the event that you are married, then what you have stated is a ground you can use to petition for divorce.
More seriously, our Penal Code makes this a criminal offence. Section 165 states that any person who dishonestly or with a fraudulent intention goes through the ceremony of marriage, knowing that he is not thereby lawfully married, is guilty of a felony, and is liable to imprisonment for five years. You may also want to consider pursuing him under the criminal route.
Kleptomania as a legal defence for stealing
My friend suffers from an irresistible impulse to steal. It is a condition that he seems to have inherited. Can he use this as a defence if he is caught stealing?
Kleptomania is the inability to refrain from the urge to steal items and is done for reasons other than personal use or financial gain. One gets a release of pressure following the theft. Our research reveals that in states or countries following the M’Naghten rule, proving kleptomania would normally be no defence. To prove the insanity defense under M’Naghten, you have to show that you had a mental defect that either prevented you from understanding the nature and quality of your act, or that prevented you from understanding that it was wrong.
Kleptomaniacs generally understand perfectly well what they’re doing, and that it’s criminal and indeed, many suffer overwhelming guilt, or at least fear of arrest. Hence it is unlikely that this defence will work. Having stated the above, we must state that a number of American states follow the A.L.I. (American Law Institute) definition of insanity, which also allows for a not guilty verdict if the defendant “lacks substantial capacity . . . to conform his conduct to the requirements of the law.” This is also like the “irresistible impulse” test for insanity.
However we don’t think a court would take judicial notice that all kleptomaniacs are inherently unable to resist stealing at all times and places, so simply proving that you were a kleptomaniac would probably not be enough to get one off. We strongly suggest that instead of looking for defences for this condition you should look at trying to treat it. You need to consult a psychiatrist.