Q&A – 23 November 2020

/in /by
Creating artificial shortage of commodities

Is it a crime if local manufacturers or producers of commodities reduce the production in order to create artificial shortage in order to raise the price for his unfair profit gain?
JK, Mwanza

Creating artificial shortage of commodities in the course of production is not a crime but creating shortage of commodities in the course of supply is a crime namely hoarding commodities.

It is interesting to note that paragraph 3(1) of the First Schedule to the Economic and Organised Crime Control Act [Cap.200 R.E 2019], which creates the offence of hoarding commodities, expressly excludes manufacturers and producers from the offence of hoarding commodities. Manufacturers and producers are exempted from the offence of hoarding by the use of phrase “..a person not being a manufacturer or producers” meaning that manufacturers and producers cannot be charged under this section. Only sellers or suppliers can be prosecuted for hoarding commodities by creating artificial shortage or inflating the price in the course of supply. The law deals only with the shortage of commodities caused in the course of supply or sell.

The offence of hoarding commodities is too broad in scope. It includes a broad range of unfair trade conducts. Apart from creating artificial shortage of commodities which are in demand by the public, other conducts that constitute the offence of hoarding are: (i) possession of commodities which are in demand by the public whose value exceeds TZS 1M in circumstances which it can be inferred that the commodities were not intended to for sale to the public; (ii) selling or offering for sell commodities at unlawful or unreasonable price; (iii) aggravating the actual shortage of commodities and adversely affecting the fair distribution of commodities.

For the purpose of paragraph 3 of the First Schedule to the Economic and Organised Crime Control Act, seller or supplier of commodities includes his agent or employee. It does not matter that the employee or agent who was found hoarding commodities for his principal or employer has no written contract of service with the employer or principal.

A person accused of hoarding commodities may put up a defence that; (i) there is no shortage alleged in the supply of the commodity concerned; (ii) he stocked the commodity for his personal use and not with intent to create shortage in the supply or cause adverse effect in the distribution; (iii) at the time he was found in possession of the stocked commodities, he had already sold them to a another person; (iv) he had kept the commodities as a reasonable precaution against imminent future shortage  or famine in order to meet his personal future needs.

The standard of proving the defence against charge of hoarding commodities is balance of probabilities. The accused’s version need not be true. It suffices if his story creates a possibility.

The offence of hoarding commodities being an economic offence attracts a penalty of a minimum of 20 years imprisonment. The penalty for hoarding commodity is provided under section 60(2) of the Economic and Organised Crime Control Act.

Division of assets acquired during subsistence of cohabitation

I have been cohabiting with a man for 10 years and have 3 children with him. I knew he had a wife and children before I began the relationship with him. During our relationship we had joint investments and businesses and we acquired a good number of properties although they are all registered in his name. Recently our relationship has turned sour and I want to quit and move on. Can I petition the Court for divorce and division of properties acquired during our cohabitation period?
DS, Dar

Cohabitation for 10 years or having children with a man does not necessarily create a lawful marriage. However in the absence of a marriage certificate, a man and a woman can still be presumed to have been dully married if it is proved that they lived together in such circumstances that it can reasonably be concluded by neighbours, friends, relatives and other members of the community around them that the two have acquired the status of wife and husband. That is what section 160 of the Law of Marriage Act terms as the presumption of marriage.

In order for the Court to order division of matrimonial assets it must first be satisfied that there is proof of marriage or that there is an irrebuttable presumption of marriage. If the presumption of marriage is rebutted, that despite long cohabitation the two are not married, that will mark the end of it and the Court will not grant a decree for divorce or separation in the absence of proof of marriage between the parties. Division of matrimonial assets is the aftermath and it follows the grant of decree for divorce or separation. Therefore, if there is no marriage there is no divorce and if there is no divorce there is no division of matrimonial assets.

A concubine is not entitled to a share of matrimonial assets and illicit relationship cannot create a right. That is how the Court of Appeal of Tanzania and High of Tanzania have interpreted section 114(1) of the Law of Marriage Act in a number of cases. To mention a few of those case laws there is a case of Richard Majenga v. Specioza Sylvester, Civil Appeal No.208 of 2018, CAT at Shinyanga; Antony Felician v. Shani Kakuru, PC Civil Appeal No.16 of 2020 HC at Mwanza.

In your case if your cohabitation for a long time is not such that people can say there is a lawful marriage between the two of you, then you can only claim your share to the properties acquired during cohabitation by way of an ordinary civil suit; not as a matrimonial cause. Your lawyers can guide you further.