Q&A – 21 June 2021

Setting aside plea agreement

Four years back I was charged with an unbailable economic offence. Prosecution could not complete the investigation for 3 years. Every time I was taken to Court, the prosecutor was telling the Court that investigation was still underway and also telling the Court that if I was ready for plea agreement the case could be concluded. Not having a choice, I entered into a plea agreement with the prosecution to regain my liberty. I pleaded guilty to the offences charged and was ordered to pay a fine and compensation to the Government. How can I vacate the agreement and be able to recover the fine and compensation I paid on the plea agreement?
TK Dar

Section 194G(2) of the Criminal Procedure Act [Cap.20 R.E 2019] gives the accused who was a party to the plea agreement the right to lodge an application to the same Court that convicted him to set aside the conviction, sentence and any order founded on the plea agreement entered into by that accused. According to rule 23 of the Criminal Procedure (Plea Bargaining Agreement) Rules, 2021 an application to set aside conviction, sentence and any order founded on the plea agreement should be made by chamber summons supported with an affidavit. In such application, the accused seeking to set aside the conviction has to convince the Court by proving through an affidavit that the plea agreement was procured involuntarily or that the accused misapprehended the plea agreement.

However the law does not prescribe the time limit within which the application to set aside the conviction founded on the plea agreement should be made. However, the Court may not condone inordinate delay to move it to set aside the conviction, sentence and orders it previously made. The Court cannot leave its door open endlessly for a party to move it any time she/he wishes.

Terminating expatriate after expiry of permit

I am an expatriate working in Tanzania for 5 years now having signed a 10 year contract of employment with my employer which would expire in 2021. My work permit expired few months ago and last week I was given a termination letter by our HR Manager on the grounds that the application for renewal of my work permit was refused by the Commissioner for Labour. I have not been paid any terminal benefits. Is this fair under Tanzanian labour laws? Please guide me.
AS, Morogoro

Where an expatriate is found working without a valid work permit, both the expatriate and the employer are committing a crime under section 9 of the Non-Citizens (Employment Regulation) Act, 2015. Expiration of a work permit automatically makes the contract of employment with an expatriate unenforceable because an expatriate cannot work without a work permit. Since the refusal to renew the work permit automatically renders an employment contract with a local employer unenforceable, an expatriate whose work permit expires and is refused renewal by the Commissioner for Labour cannot fault a local employer for breach of contract and claim any compensation for unfair termination.

However, an expatriate whose contract of service is automatically terminated for expiration of a work permit is entitled to a repatriation allowance to the place of recruitment if he was recruited from overseas. He is also entitled to a payment for the work done up to the date of termination, severance pay and unused leave pay as well as notice pay. Only compensation for unfair termination he/she cannot claim.

Totalisation of pension contribution and benefits

I worked for different private companies for 10 years before I moved to the public service where I have been working for a public corporation for 2 years now. When I was working in the private sector I was contributing to the National Social Security Fund. Now I am contributing to the Public Service Social Security Fund. I am attaining compulsory retirement age in the next 2 months to come. How can I claim the contributions that I made to the National Social Security Fund before I changed my employment?
MM, Mwanza

Section 92A of the National Social Security Fund Act [Cap.58 R.E 2018] and the Social Security Scheme (Totalisation of Periods of Contributions) Guidelines, 2018 provide guidance on how to protect the interest of an employee who has contributed to more than one social security fund. When an employee changes employment from the private sector to public service, her/his membership also changes from NSSF to PSSF. However, the contributions made to NSSF do not move to PSSF. All what the employee is entitled to is the right to have the periods of contributions to both or all funds added up in calculating the pension benefit as if all contributions were made to the last scheme.

An employee who intends to exercise the right to totalisation should apply in writing to the scheme where the last contributions were made and serve a copy of the application to the scheme or other schemes to which he previously contributed. Computation and determination of lump sum benefits is made by each corresponding scheme but transferred to the last scheme to which the employee contributed for administering payment to the employee.

It is important to note that regulation 6 of the Social Security Scheme (Totalisation of the Periods of Contribution) Guidelines, 2018 limits the scope of the Guidelines to employees who changed their employment from private to public or public to private sector after the Guidelines came into force on 3^rd August, 2018. Hence only employees who changed the employment after 3^rd August, 2018 are entitled to lodge application for totalisation of the periods of contributions for the purpose of calculation of the pension benefits, and we believe you fall in this category.