Q&A – 2 March 2015
Gun in night club
We are youthful and go out to nightclubs. I do carry a gun with me and the girls really get impressed when I take it out and show it off. One police officer, who was perhaps after my money, said that I could not show off my weapon or allow the girls to hold it even if I have a licence for it. The gun allows me to defend all the girls who hang out with me. Please guide me.
UE, Dar
We take this opportunity to cite some provisions of the penal code that we call “nightclub provisions” that you should read as they might be relevant to you.
Section 89 states that (1) Any person who- (a) uses obscene, abusive or insulting language to any other person, in such a manner as is likely to cause a breach of the peace; or (b) brawls or in any other manner creates, a disturbance in such a manner as is likely to cause a breach of the peace, is guilty of a misdemeanour and on conviction therefore is liable imprisonment for six months. (2) Any person who- (a) with intent to intimidate or annoy any person, threatens to injure, assault, shoot at (b) with intent to alarm any person discharges a firearm or commits another breach of the peace, is guilty of a misdemeanour and is liable to imprisonment for one year. If the offence is committed at night the offender is liable to imprisonment for two years.
Your showing off your weapon, and allowing the girls to hold it, is an offence and can send you behind bars. It is a known fact that when you will be behind bars, apart from not being able to protect all your girlfriends, you might even lose a number of them and we advise you to make your moves with caution. If all girlfriends need armed protection in Tanzania, we would have more guns than girls. Unless there are facts that you have not disclosed to us, we do not see the need for your overprotection for the girls.
Car crash, airbags didn’t deploy
Our office has a policy of buying brand new vehicles from a dealer in Dar es Salaam. This is purely for safety reasons as our office is based upcountry and we are on the road most of the times. We also service our vehicles at the same dealers workshop to ensure that we get the best service. About three months ago when our car was returning from Dar, it met with an accident. The airbags for both the driver and passengers next to him did not come out. Luckily they were both wearing seatbelts and survived the crash but the passenger who is a fellow employee and a key part of our organisation has lost part of his memory and unable to work. Can we sue the dealer in Dar for failure of the airbags to come out?
JE, Arusha
You have a cause of action based on product liability. When the car was bought, the dealer and the manufacturer provided an assurance that the airbags would work when required to. In your colleagues case they did not which means that you have a cause of action both against the dealer and the manufacturer. There might be all kinds of disclaimers in your car manual but a lot of those will not protect the dealer and manufacturer if you can prove that the airbags were faulty and caused this harm to your colleague.
The burden of proof is associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, which translates to “the necessity of proof always lies with the person who lays charges.” Hence you will be required to ensure that you bring in enough evidence that convinces the judge that on a balance of probabilities (not beyond reasonable doubt as in murder cases) the dealer and manufacturer are liable.
Lastly, you might want to bring in an expert witness in this trial for her/him to connect the injury to the non-opening of the bag. You may also want to consider someone to testify that the airbag indeed malfunctioned. If you plan your approach well, you might have a very good case. Settlement in such cases is in the billions and it is something your lawyer can guide you on.
Primary mining licence acquisition
We are foreigners and have acquired Primary Mining Licences (PMLs). We intend to develop the area and then apply for a mining licence. Although we managed to get the transfers done, we have learnt that the PMLs cannot be owned by non Tanzanian entities. Is there a way we can cure this?
GH, Dar
Unfortunately you cannot cure this as the Mining Act 2010, which governs PMLs, is very strict. Section 8(2) states that a primary mining licence for any minerals shall not be granted to an individual, partnership or body corporate unless- (a) in the case of an individual, the individual is a citizen of Tanzania; (b) in the case of a partnership, it is composed exclusively of citizens of Tanzania; (c) in the case of a body corporate, it is a company and- (i) its membership is composed exclusively of citizens of Tanzania; (ii) its directors are all citizens of Tanzania; (iii) control over the company, both direct and indirect, is exercised, from within Tanzania by persons all of whom are citizens of Tanzania.
We believe that the Ministry has allowed this transfer in error meaning that you do not legally hold the PMLs. It is advisable that you get a Tanzanian entity to hold these PMLs for you whilst you apply for a ML. The Ministry is supposed to be pro mining and any conversion of a PML to a ML is always welcome.
We also caution you to approach this unwinding process with care as sometimes when you voluntarily provide information your problems escalate even further. Your lawyer should be able to guide you.