Q&A – 24 June 2013

Marriage papers torn

Without my knowledge, my 20 year old son was dating an elderly lady who was atleast 15 years senior to him. She somehow convinced him to get married to her and they went for a civil signing ceremony in Dar es Salaam. Luckily my driver who has been with me for the last 30 years, drove my son to the place where they were to sign and upon reaching there, he smelt something wrong and phoned me. I quickly went there and entered the office where the signing was taking place and to my disbelief they had already signed. I took the papers and tore them into pieces explaining to the registrar what the issue was. I have two questions: first can such an elderly woman take advantage of this 20 year old. Second, with the papers torn and no evidence as to marriage, is this marriage valid?
OI, Dar

To begin with, your son is above the legal age to get married, and with or without your knowledge, he can still get married. However, we understand your concern that he might still be young at this age, and perhaps naïve in getting married to a lady who is so much older than him.

The marriage was entered into when the parties appearing before the registrar signed the papers placed before them and we assume such papers were appropriately witnessed. It seems this was done and hence when you entered the room, your son was a married man. By merely tearing the marriage papers does not mean that the marriage gets annulled or was never entered into. The marriage still subsists and the only way for your son to get out of this marriage is to file for a divorce.

However, whether your son should or needs to divorce is your son’s decision and not yours. Your attorneys can guide you further.

Foreign bankers in Tanzania

For the last few years foreign bankers call upon me to meet them in Dar. I find that quite surprising as
these bankers from some of the leading banks around the world do not have offices in Tanzania. Nonetheless I met one of them who was giving me different options of products that they offer in Europe, from fixed deposit to foreign currency products. Is this legal?
LD, Dar

There are a couple of interesting comments and questions you have raised. We start with the easiest. These foreign bankers, under the laws in which they are registered, are not disallowed to open accounts and offer products to foreign nationals.

This means that in their jurisdiction what they are offering you is legal.

However, for you, assuming you are a Tanzanian national, there are restrictions under our foreign exchange legislation, on what you can and cannot do with your foreign exchange. For example, there is a limit on the amount of foreign exchange you can carry with you when leaving the country. These are protective legislation to ensure that our currency, due to the smaller size of our economy when compared with industrialised powers, is not exposed. On whether you can open an account overseas, the answer is yes but only if the Bank of Tanzania (BoT) allows you to. This is clear from the Foreign Exchange Circular of 1998 whereby opening of accounts or any outward movement of funds is a restricted activity and requires the approval of BoT. Hence for you to open an account offshore, you will require the approval of the BoT, and such approval is not easily given unless you adduce proper reasons.

We also wish to mention that under our anti money laundering legislation, money laundering is very widely defined and means the engagement of a person or persons, direct or indirectly in conversion, transfer, concealment, disguising, use or acquisition of money or property known to be of illicit origin and which engagement intends to avoid the legal consequence of such action and includes offences referred to in section 12. The bank official and you can both be charged under this legislation if the funds are known to be those that are not properly taxed and generally put “not clean.” If found guilty both of you can be imprisoned, so beware. Your attorneys can guide you further.

No consent mentioned in PSA

We have a Production Sharing Agreement (PSA) with TPDC and the Ministry but it does not have a specific provision on whether when we part with some control over the PSA we need to get consent from the Ministry. Aren’t our terms of operations governed by the PSA which is what we have signed?
HU, Dar

The PSA is governed by the Petroleum (Exploration and Production) Act, 1980 (“PEPA”). Section 54 of PEPA contains a broad requirement to seek Ministerial consent with respect to any instrument by which a legal or equitable interest in, or affecting, a licence is created, assigned, effected or dealt with and states that “unless the Minister approves a. the transfer of a licence; or b. an instrument by which a legal or equitable interest in, or affecting a licence is created, assigned, effected or dealt with, whether directly or indirectly, the transfer, or the instrument (in so far as it operates as provided in paragraph (b), shall be of no effect. Section 54.2 further states an application for the approval by the Minister under subsection (1) of transfer of an instrument shall be made to the Commissioner in accordance with the regulations.

From the above, depending on how much control is being parted with, and whether it will affect the PSA, you will be required to apply for consent. Most PSAs do have provisions related to control change; however if your PSA does not, the law has stated that consent must be sought as above. The PSA cannot override the law and hence the consent provision above must be read into the PSA. Same applies with all other provisions of the PEPA that must be automatically read into the PSA, whether or not they are explicitly stated in the PSA or not. Your attorneys can guide you further.