Q&A – 26 April 2021

Wife disallows me to use her assets

I have a very rich wife who earns nearly 8 times as me and takes care of the entire household. We are blessed with two children and I am overall happy with our marriage except for the fact that she doesn’t allow me to use some of her personal assets. For example, I am not allowed to drive her car or use her camping equipment. I feel I am left out of this marriage and as a man, want to take appropriate action. Marriage is about union between a man and woman and such restrictions are unwarranted. What should I be doing to manage this situation?
TU, Dar

You seem to be quite a lucky man whose wife provides for almost everything. Getting married doesn’t mean that everything must be mandatorily shared between the man and wife. Atleast there is no financial infidelity between the two of you and she is honest about the dos and don’ts.

Cruelty is a ground of divorce but we don’t really see cruelty here. You also stated that you are overall happy with your marriage except for being disallowed usage of your wife’s car and camping equipment. Perhaps, and to move on with life, you can consider buying your own car and equipment.

Very sincerely, you likely need marriage counselling and not legal advice.

Execution of fine and compensation orders

If a person is convicted by Court to serve jail term, pay a fine and pay compensation to the victim of the crime but the offender fails to pay the fine and/or compensation, how can the fine and/or compensation be enforced against the offender?
PL, Dar

It is important to note that fine and compensation are listed under section 25(d)(f) of the Penal Code [Cap. 16 R.E 2019] as one of the forms of penalties which a Court may impose upon an offender. Fine and custodial sentence may be imposed to run concurrently where the provisions creating the offence charged prescribes both offences by using the word ‘and’ conjunctively.

Procedure for execution of fine and compensation orders is addressed by sections 327 to 336 and 348(3) of the Criminal Procedure Act [Cap. 20 R.E 2019]. Where an offender fails or refuses to pay a fine imposed on him or her by the Court or compensate the victim the full amount ordered by the Court, the prosecutor may apply to the Court for a distress warrant to recover the fine or compensation from the movable or immovable property of the offender. In case the offender has no property or has insufficient property not capable of fully satisfying the amount of fine or compensation ordered, the Court may convert the fine or compensation to prison term. If the original commitment warrant does not address the conversion of fine and compensation to imprisonment, the Court will be required to issues a new warrant to specifically convert the fine and/or compensation to prison term in default to pay fine or compensation.

The Criminal Procedure Act does not provide a formula for conversion of fines imposed in addition to jail term or compensation awarded to the victim to imprisonment where the offender defaults to make such payment as ordered. However, section 336 of the Criminal Procedure Act limits the prison term for failure to pay compensation or fine to a maximum of 6 months jail term unless the provisions under which the offender was convicted allows imposing a longer term than 6 months for failure to pay the fine or compensation.

Section 348(3) of the Criminal Procedure Act bars enforcement of compensation orders if the convict is pursuing a right of appeal. It is only after the offender has exhausted his/her right to appeal that the compensation order can be enforced.

Payment for work during leave

My employer assigned me work during my annual leave. I now want him to pay me double gross salary for the month I worked during my leave but HR is refusing to pay me on grounds that leave pay does not include allowances. Can you guide me on how leave pay is computed? Is it computed based on the basic salary or gross salary? Does the leave pay cover wage for weekends and public holidays not worked?
IP, Morogoro

Calculation of the leave pay depends on the reason for which leave is paid. In view of section 30(1)(c) and (7) read together with section 4 of the Employment and Labour Relations Act [Cap. 336 R.E 2019], leave pay in lieu of annual leave is calculated based on the basic wage of the employee. Section 4 of this Act defines basic wage in the exclusion of the allowances payable to the employee whether or not the allowances are calculated on the basis of the basic wage. The reason why leave pay in lieu of annual leave does not include allowance is that the allowances are covered for in the salary for the month worked while the employee is on annual leave. Paying gross wage in lieu of annual leave will amount to double payment of allowances like rent allowance, fuel allowance and other allowances payable to the employee monthly based on the employment contract.

However, if leave is paid as a terminal due, section 44(1)(b)(c) of the Act provides for untaken leave or accrued leave during any incomplete leave cycle and the calculation of leave pay shall be based on the remuneration of the employee. Section 4 of the Act defines remuneration to include allowances payable to the employee whether in kind or in cash. Remuneration is therefore an equivalent of gross wage.

By virtue of section 31(1) of the Act annual leave days are inclusive of weekends and public holidays that may fall under the leave period.