Q&A – 21 May 2012

Penal interest exorbitant

I have defaulted on a loan and the Bank is charging me a ridiculous interest rate on the default. I have been trying my best to cooperate but my business is just not doing well enough. Is there a maximum limit on the interest that I can be charged? What should I do?
TO, Dar

In Tanzania, interest rates are market driven. In other jurisdictions, Usury laws specifically target the practice of charging excessively high rates on loans by setting caps on the maximum amount of interest that can be levied. These laws are designed to protect consumers.

Unfortunately there are no such laws in Tanzania.

The best way to get out of this is negotiate to restructure the loan- you will have to pay a 10% down payment but it will atleast give you relief from the penal interest.

Criminal liability in self defence

What does Tanzanian law say about self defence and to what extend can I defend myself? What happens if I kill during self defence? I am a martial arts expert and have recently moved to Dar es Salaam. My wife works for an embassy and has full immunity. Does that extend to me?
EL, Dar

The statute that deals with criminal matters in Tanzania is the Penal Code which says that a person is not criminally liable to an act done in the exercise of the right to self defence or the defence of another or the defence of property in accordance with the provisions of the penal code.

It adds that subject to the provisions of this Code even person has the right—
(a) to defend himself or any other person against any unlawful act of assault or violence to the body; or
(b) to defend his own property or any property in this lawful possession, custody or under his care or the property of any other person against any unlawful act of seizure or destruction or violence.

The Penal code says very clearly that in exercising the right of self defence or in defence of another or defence of property, a person shall be entitled only use such reasonable force as may be necessary for that defence. Every person shall be criminally liable for any offence resulting from excessive force used in self defence or in defence of another or in defence of property.

From the above you can see that you can only use reasonable force.

The next question that pops up is what is reasonable force. There is no generic answer to this as it depends on the circumstances. For example, If someone attacks you with a book, and you use a gun against them, this might not be considered very reasonable.

The Penal code also states that any person who causes the death of another as the result of excessive force used in defence, shall be guilty of manslaughter. However the right of self defence or the defence of another or defence of property shall extend to a person who, in exercising that right, causes death or grievous harm to another and the person so acting, acts in good faith and with an honest belief based on reasonable grounds that his act is necessary for the preservation of his own life or limb or the life or limb of another or of property, in the circumstances where-
(a) the lawful act is of such a nature as may reasonably cause the apprehension that his own death or the death of another person could be the, consequence of that act; or
(b) the lawful act is of such a nature as may reasonably cause the apprehension that grievous harm to his own body or the body of another could be the consequence of that unlawful act; or
(c) the unlawful act is with the intention of committing rape or defilement or an unnatural offence; or
(d) the unlawful act is with the intention of kidnapping or abducting; or
(e) the lawful act is burglary or robbery or arson or any offence which endangers life or property.

From the above, if you cause death of a person during self defence and you acted in good faith and an honest belief that your life was also threated, then the defence of self defence may apply to you.

And one more thing to add, being a martial arts specialist would mean that you might be judged at a higher standard because of the nature of your work. Hence all said and done, whilst the law is quite clear that you can kill in the event your life is threatened, please note that you must act in good faith and with an honest belief.

As for immunity, it very likely does not extend to you as you are not employee of the embassy.

Buying mining licence

Our company is a large mining company and is negotiating with a primary mining licence owner to purchase his mining licence. How long will it take to transfer the licence?
GP, Dar

Unfortunately the Mining Act 2010 does not allow you, as a foreign company, to purchase the Primary Mining Licence (PML). The law is clear in 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.

This may sound restrictive to some but is meant to promote the local population to benefit from mining and is not strange as other countries also have similar policies to promote local mining.

The best way to purchase the PML is to have it converted to a Mining Licence (ML), which can subsequently be transferred to your company. The conversion from a PML to a ML will require amongst others technical as well as financial capacity, a feasibility and environment impact assessment to be conducted