Q&A – 25 November 2019

Viagra information leaked by pharmacist

I might be a 70 year old but overall I am physically very fit. To boost my performance for a date, I decided to walk into a pharmacy and purchase a few 50mg tablets of Viagra. It worked wonders. However, I did not realise that the dispensing female pharmacist is from my community and has informed many people in Dar on Whatsapp about my purchase of Viagra. I am now being looked at very differently whenever I see anyone from the community. I wish to sue the pharmacist for this. Please guide me.
GK, Dar

We are sorry to hear about these defamatory remarks about your purchase, but glad to hear that the medication worked! This drug is indeed meant for people your age.

Under the Pharmacy Act, there is a disciplinary committee that has been established and you can officially lodge a complaint against the pharmacist for breach of confidentiality amongst others.

Depending on the facts, this could even lead to the suspension of the pharmacist.

You can also consider suing the pharmacist for defamation. The normal ingredients of defamation are that the defendant made a false and defamatory statement concerning you, she/he made that statement to a third party and the information was negligently published. In your case the information is true that you indeed purchased Viagra. That, however, doesn’t mean that you have not been defamed. In your case, the pharmacist knowingly published something defamatory on Whatsapp about you which has harmed your reputation as to lower you in the community, this itself is enough. The tough part is for you to prove damages. Your lawyer can guide you further.

Termination of employee during probation

I was on a 6-month probation when my employer brought another lady to start competing with me in the same position. I ultimately resigned because of the pressure and want to sue for unfair termination. I am told there are conflicting authorities to this effect. Please guide what my chances of success are.
FJ, Moshi

There are decisions of the Court of Appeal that work against you. In the case of Stella Temu vs Tanzania Revenue Authority (2005) TLR 178 the Court held that while under probation period, the Appellant was under a ‘practical interview.’ Moreover the Court also concluded that since the Appellant was a probationer, he is therefore not covered under the unfair termination provisions. Section 35 of the Employment and Labour Relations Act does not apply to an employee with less than 6 months employment with the same employer, whether under one or more contract and hence constructive termination does not apply to employees on probation.

Further in a recent 2019 decision, the Court was of the view that since the Appellant resigned prior to receiving the letter of confirmation, the Appellant was still under probation. On top of that, it was stated that being on probation after expiry of probation period does not amount to confirmation and that confirmation is not automatic upon expiry of the probation period. The Court also stated that confirmation of an employee on probation is subject to fulfilment of established conditions and expiration of set period of probation does not automatically lead to change of status from a probationer to a confirmed employee.

We recommend you see a labour law expert who can guide you further.

Further lending by bank

If a bank lends money to a company in instalments based on a facility letter for the full amount, is the bank not making loans each time it disburses and should the bank not be getting consent for each disbursement? What happens if my husband has declared to a bank that he is not married?
FG, Morogoro

It seems you want to avoid paying back a loan. It might not be that easy as we show below.

If the facility is for the entire loan amount, we do not see the need of the bank getting consent for each disbursement. For example, if the mortgage is registered for the full amount, the entire loan is covered. As for the marital status, the law provides that an applicant commits an offence who by an affidavit or a written and witnessed document, knowingly gives false information to the mortgagee in relation to existence of a spouse or any other third party and, upon conviction shall be liable to a fine of not less than one half of the value of the loan money or to imprisonment for a term of not less than twelve months.

The latest trend which is evolving in the market is for spouses, most of whom know that their husbands are borrowing, to claim that they did not know of the borrowing and try to invalidate the mortgage. Banks should protect themselves by taking affidavits from such borrowers to limit exposure.

One sided insurance policy

My motor vehicle insurance policy states that I cannot make a claim 30 days after an accident. I was overseas and just came back into the country to find someone having knocked my car when it was parked. My broker says that the 30 days have passed and I cannot now claim. What should I do?
HF, Morogoro

Your broker should be trying to protect your interests. At the moment he seems to be acting like an agent of the insurer. We have not read this type of policy but you can certainly challenge it. You might want to read the wording of the policy whether it is 30 days from the date you found out or the date of the accident. This unfair term can be reported to the Commissioner of Insurance who has the powers under the Insurance Act to delete or amend, obscure or ambiguous terms in a policy.

Unfortunately, we do not have your policy to guide you any further but we believe you can pursue this with your broker and insurer.