Q&A – 22 July 2013

Granting of mineral rights

I am a director in a company that owns many prospecting licences under the new Mining Act. There are certain licences which have gone into default because of non-payment of the yearly rent which has been increased by over 100% in the last few years. I have registered a new company and in the process of acquiring new mineral rights over an area where the previous PL owner relinquished his rights. Can I proceed with the application?
GB, Dar

The Mining Act is clear in that a mineral rights shall not be granted to an individual, or to any partnership or body corporate or to any one of the partners, shareholders or directors of the partnership or body corporate which is in default in another mineral rights or in an expired or cancelled mineral rights: Provided that- (a) an individual who or partnership or body corporate which is in default; or (b) a partner, shareholder or director of a partnership or body corporate which is in default, may be grated a mineral right upon rectifying the default.

From the above you can see that since you are in default, you cannot apply for these new mineral rights unless you rectify the default.

We also wish to remind you that the Mining Act states that a prospecting licence shall not be granted to an individual, partnership, body corporate, or any one of the partner, shareholders or directors of the partnership or body corporate who owns more than twenty other valid prospecting licences, unless the cumulative prospecting areas of such other prospecting licences do not exceed 2,000 square kilometres.

You stated that you own a number of other PLs. Hence if you own more than twenty PLs and the cumulative area of these licences is more than 2000 square kilometres, you are automatically barred from being granted any more PLs. Your lawyer can guide you further.

Change of company name

I am one of the owners of a company which is not doing very well. I contacted a spiritual leader who told me that we need to change the name of the business. The other 50% shareholder is not agreeing to this. What is the procedure for change of name? Can I change the name on my own as I am running the show? The new name I want to register is quote similar to another company’s name. What should I do?
LP, Dar

The above is covered under section 31 of the Companies Act which states (I) A company may by special resolution and, with the approval of the Registrar signified in writing change its name. If the Registrar refuses to give his approval, he shall give his reasons. (2) If, through inadvertence or otherwise, a company on its first registration or on its registration by a new name is registered by a name which, in the opinion of the Registrar, is too like the name by which a company in existence is registered, the first mentioned company may change its name with the sanction of the Registrar and, if he so directs within six months of its being registered by that name, shall change it within a period of six weeks from the date of the direction or such longer period as the Registrar may think fit to allow. (3) Where a company changes its name under this section, it shall within fourteen days give to the Registrar notice thereof and the Registrar shall, subject to the provisions of section 30(2), enter the new name on the register in place of the former name, and shall issue to the company a certificate of change of name, and shall notify such change of name in the Gazette. (4) A change of name by a company under this section shall not affect any rights or obligations of the company or render defective any legal proceedings by or against the company, and any legal proceedings that might have been continued or commenced against it by its former name may be continued or commenced against it by its new name.

From the above, you require a special resolution to change a name meaning that this is a shareholders matter and you alone cannot change the name. Your lawyers can guide you further.

Mediation at Commercial Court

I have filed a suit at the High Court Commercial Court at Dar es Salaam against a party that I do not want to see in my life again. I am surprised that the Court has ordered we try sort this by mediation. Is this compulsory as I don’t want to mediate with these rogues? Please guide.
ER, Dar

The Commercial Court rules state that a party to a mediation session shall have authority to settle any matter during the mediation session. (2) A party who requires the approval of another person before agreeing to a settlement shall, before the mediation session, arrange to have ready means of communication to that other person throughout the session, whether it takes place during or after regular business hours.

Where the suit is not settled or dismissed under the provisions of these Rules, the Court shall direct the parties to submit to mediation and upon making such order the Court shall appoint a mediator who shall, within seven (7) days of his appointment, set a date for the first session of mediation.

The Rules further state that the party or his advocate or both, where the parties are represented shall be notified in the form set out in Form No.3 in the Schedule, and shall attend the mediation session. (2) Where a third party may be liable to satisfy all or part of a judgment in the suit or to indemnify or reimburse a party for money paid in satisfaction of all or part of a judgment in the suit, the third party or his advocate may also attend the mediation session, unless the Court orders otherwise.

From the above, you can see that mediation is compulsory. However, this Court allows you to send a representative who can be in touch with you so that you can agree or disagree to a settlement. Also note that the mediation is without prejudice to your case so you need not worry as the mediation is treated confidentially.