Q&A – 2 November 2015

Unfair term in contract

I have been constructing a house and appointed a friend of mine as the contractor. He did a below average job and we have now realized that the foundation and roofing are not done properly. We have hardly moved into the house two months ago and we are told by another contractor that we need to do some more work on the house. I asked our contractor and he pointed me to a clause in the contract that states he is not liable for any such mishaps i.e he cannot be blamed. I did read the contract and admittedly I signed it without properly reading it. What can I do? My lawyer said I should have contacted him before signing the contract and not after, and that there is nothing much that can now be done since the contract is clear that the contractor doesn’t bear any liability? Please help.
NG, Dar

It is true that most signatories of contracts do not properly read contracts before signing them.

It is with that in mind that in other countries there is a specific law on unfair contract terms whereby such clauses are not allowed, or if inserted, cannot be enforced.

Unfortunately we don’t have such a specific act here. The general principle of law is that parties are bound by what they have agreed to. This is a principle that is also widely applied here.

Notwithstanding the above, it is quite clear from common sense and common law principles that having appointed a contractor, who we presume is registered with the Contractors Registration Board (CRB), the contractor cannot run away from his obligation to properly construct your house. In contract law it does not matter if he is your friend or not.

There is also a number of interesting foreign case laws that interpret such exclusion clauses of liability in your favour by holding that there is a common law implied term into the contract whereby a contractor or specialist is supposed to perform to a minimum certain expectation, which in your case the contractor hasn’t.

Your lawyer should not give up so easily and you should perhaps get a second opinion.

We believe you can make a good case to hold your contractor liable. Next time do not sign contracts without properly reading them. It is these one or two liners in contracts that cost you the billions.

Cyber Crimes Act threat to facebook

I have been informed that with the Cyber Crimes Act in place, what we write on facebook, as a joke or comment can be used against us in Court? Can I please understand more on this law as I am a facebook addict and cannot live without it?
FG, Mwanza

The Cyber Crimes Act of 2015 has provided some very strict provisions that could make you liable for a fine or imprisonment, or both.

We believe the section that affects you the most as a facebook fan is section 16 which we have reproduced below and recommend you read carefully.

Section 16 states that any person who publishes information or data presented in a picture, text, symbol or any other form in a computer system knowing that such information or data is false, deceptive, misleading or inaccurate, and with intent to defame, threaten, abuse, insult, or otherwise deceive or mislead the public or counselling commission of an offence, commits an offence, and shall on conviction be liable to a fine of not less than five million shillings or to imprisonment for a term of not less than three years or to both.

Therefore when you post on your facebook page information, it does not matter whether or not you are joking, you could still be committing an offence as long as it is false, or misleading or inaccurate, and your intention is to defame, threaten or mislead the public.

We believe this also applies to those who like or dislike the comment, and those who further add their comments to what was initially said. Hence your friends can
also get into trouble.

For example if you post that a certain police station had police officers sleeping at night and you were not attended to, if this information was false you would fall foul of section 16.

Another example is when you make comments about service levels at public organisations, or how you were treated somewhere, if the information is false, or even inaccurate and it was deemed to be insulting, you could end up facing criminal charges under this law.

This is a very strict section of the Cyber Crimes Act and all facebook fans who forward information should be careful. Infact this would apply to Tweeter as well as Whatsapp amongst others.

The constitutionality of this section, amongst other sections, we believe is being challenged in Court on grounds that they are curtailing the freedom of speech that is enshrined in the constitution.

Until the Courts make a decision, this is the law and you must be very careful of what you write in such public domains.

Surety for my boss

I am surety for my boss in which he has been criminally charged. I wish to remove myself from being his surety. Can I do so? Can I be fired for such withdrawal?
TE, Dar

The Criminal Procedure Act allows a surety to withdraw. You need to make an application to the magistrate, which you can do orally.

On such application being, made the magistrate shall issue a warrant of arrest directing that your boss be brought before the Court.

Your boss will have a chance to replace someone else as a surety otherwise he will be sent to remand prison pending satisfaction of a surety.

It might be wise to inform your boss beforehand that you intend to withdraw being his surety to allow him prepare another surety.

As for your employment, just because you removed your name as a surety is no ground for your boss to fire you. If he does, it would be an unfair termination.