Q&A – 14 November 2011

Labour suit despite paying termination benefits

In 2008, I was employed as a driver in a company. After two years of good service I was unlawfully terminated. I complained to my workers union and to my surprise they advised me to accept my terminal benefits. My employer told me that I cannot challenge the termination since I have accepted my terminal benefits. Was the Union’s advice correct? Don’t you see that the Union was acting in the interest of my employer at my expense?
KD, Dar

Case law states that accepting terminal benefits is not a bar for challenging unlawful termination and that there can be no reasonable inference that the worker in question had consented to termination of his employment. Your employer was wrong in equating payment of terminal benefits to you as consent to the termination of the employment. In other words, accepting your terminal benefits can not prejudice your complaint to the Labour authorities.

It is our considered view that the advice by your Union was proper and it was intended to serve your interest except that the union ought to advice you further on your liberty to challenge unlawful termination. You can still challenge the termination of employment now but you need to have sufficient reasons for your delay to the satisfaction of the labour authorities. We recommend you to engage a labour consultant.

Company without an office

We visited Tanzania a year ago and wish to work in the market here. Can we register a company and not have a physical office in Tanzania? Is a lease copy required for registration?
LK, Dar

The Companies Act of Tanzania states that upon the submission of the documents for registration of a company, the person shall include the name and address of the office for the intended company. If the said information is missing, the registrar of the company shall not register the said company until the stated requirements are fulfilled. Hence a physical address of the company is necessary.

Also note that the presence of office in Tanzania is necessary for taxation purposes and the companies Act requires the company to keep records of all of its transactions. The Registrar of Companies also has the power to come to the said office and look at some stated company records. Much as you would like to, unfortunately the law here does not allow you to register without a physical office.

Also when you are registering, you do not require a lease copy of your premises to be attached to the applicationl.

Where to file Islamic probate

My late husband was a Muslim and lived in accordance to Islamic rights. He left a Will and I want to file for probate as I am named the executor. Where do I file for probate? What are the documents needed for probate in case of Islamic Will?
HJ, Arusha

The Primary Court has jurisdiction in all matters related to Customary Law, Islamic Law and limited criminal jurisdiction in specified offences. The Primary Court is the Court which the the basic jurisdiction in all Islamic matters including inheritance matters. This is subject to the exceptions as stated below.

If the Probate involves any land which is registered land, then the Primary Court has no jurisdiction hence you must file the Probate at the High Court of Tanzania. There are numerous Court decisions which declare that the Primary Court has no jurisdiction to entertain Probate matters in relation to registered land.

The necessary requirements for probate include the petition for probate which is in a prescribed form as per the law. Other documents which must be attached to the petition are: the Will, verification by the witness that the Will is genuine, declaration of domicile of the deceased by the executor and a declaration by the executor that he/she will administer the estate in good faith and in accordance with the wishes of the deceased. You might also be required to provide a bond.

The process is relatively straight forward and after the matter comes before a Judge, you will have to advertise it so that the public knows about the application. Thereafter if the Will is proved to be authentic and there are no objections, you will be granted with the probate.

Complications normally arise when the Will is challenged, especially where family members come to know about the Will and realize they are not beneficiaries under it, or if they are beneficiaries they believe they have not been adequately taken care of.

Bank guarantee issued, claim made

I got a bank guarantee in favour of a oil importing and marketing company. We have been doing business with the oil company for many years and because there is a dispute as to a certain delivery that I believe they never made to my warehouse, they called in my bank guarantee at a local bank. I truly believe that the amount is not payable; the bank does not want to listen to my plea and intends to pay. I am advised to collect a Court injunction. Can you help me out?
BJ, Dar

You have been properly advised except one does not collect a Court Injunction. A Court injunction is not a commodity which is up for sale but rather is given on the merits of the application that is made in Court. It is a preventive relief to preserve status quo in respect of the subject matter and is usually provisional in nature. A court injunction is a judicial remedy whereby a person is directed to restrain from doing or to do a particular act or thing.

The general principles governing injunctions, which are discretionary powers of the Court, are that the person seeking the injunction must satisfy the Court with regards to the existence of a prima facie case; that irreparable injury is likely to be suffered and that the balance of convenience is in favour of the applicant.

You have been guided properly but injunctions to enforce bank guarantees are normally not granted unless there is fraud or coercion and duress involved. You also need to properly look at the wording of the bank guarantee before you venture into this application for injunctive relief.