Q&A – 26 September 2016

Voluntary winding of a company

I want to voluntarily wind up my company as it has more liabilities than assets? Is there any law that stops me from doing so?
UD, Iringa

The Companies Act, Act No 12 of 2002 states that, where it is proposed to wind up a company voluntarily, the directors of the company or, in the case of a company having more than two directors, the majority of the directors, may, at a meeting of the directors make a declaration in the prescribed form to the effect that they have made a full inquiry into the affairs of the company, and that, having so done, they have formed the opinion that the company will be able to pay its debts in full within such period not exceeding twelve months from the commencement of the winding up as may be specified in the declaration.
Hence, and as one would expect, a company which has more liabilities than assets cannot be voluntarily wound up by the members of the company. Such company can only be wound up by order of the Court.

If you attempt to do so, you may be criminally liable. For further legal assistance, please consult your attorney.

Loss of sex appeal

I married a man who was as handsome as a man could be. Unfortunately the bank he works for makes him work till late night under the notion that the bank’s books have to be closed. Now my man is over 150kgs, double his initial weight, and is not appealing to me. I have lost my sex appeal towards my man. How fast can I divorce my husband as I don’t see hope in his weight recovery? He has tried but always fails. Thanks to the fat profits the bank makes, none of which my husband gets, everyone in the banks payroll is becoming fat. Can I also sue the bank?
JI, Dar

We start with the bank and believe that the cause of action for you to sue the bank is very remote and hence it is unlikely you can sue it. However your husband can consider suing but will need to find some solid grounds on which he can rely. For example is he being compensated overtime for working such late nights? Is he working in the right environment? Is the bank taking care of him under the employment contract? Are there any conditions in the bank that are causing this weight gain- for example unhealthy food that is being served? You need to read this to be able to better understand the cause of action your husband will have.

As for your divorce, the Law of Marriage Act does not allow divorce without a proper reason. Unfortunately the decline in your sex appeal towards your husband is not a ground that is provided for in the law. Getting fatter and older is not a reason that can be used. Had it been adultery, no sexual relations or cruelty, then the law allows you to get divorced. We recommend you contact a marriage counsellor to salvage your marriage. You should consider your stance as it might be at this juncture that your husband needs you more than ever. And without sounding like we are preaching, don’t forget your wedding vows, and also the fact that women also do, many a times, gain quite a bit of weight.

Foreign exchange non-disclosure

I know of exporters of goods who misdeclare amounts and cheat the government. Is there no penal statute that can take them to task. I want to disclose these individuals who are making a killing but understating amounts they earn. To what extent are the directors liable?
TT, Dar

Amongst the laws of Tanzania that are very strict in such matters is the Foreign Exchange Act which clearly states the following: Any person who makes a false declaration in respect of any transaction provided for under this Act or the regulations made the reunder with a view to (a) evading the disclosure of the actual specified foreign currency earned , or(b) delaying the remittance of the specified foreign currency earned; or (c) retaining any portion of the specified foreign currency payable outside the United Republic, shall be guilty of an offence and upon conviction be liable to imprisonment for a term not exceeding ten years or to a fine equivalent, to a sum not exceeding three times the monetary value of the amount disclosed as due or owing to the person, or to both such imprisonment and fine.

The Act also provides that the directors can be liable to the offence even if it is committed by their company. In section 14 the following is provided: (a) Where an offence under this Act is committed by a body corporate, then, as well as the body corporate, any person who at the time of the commission of the offence, was concerned, as a director or an officer, with the management of the affairs of such body corporate, shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly unless he proves to the satisfaction of the Court that he had no knowledge, and could not by the exercise of reasonable diligence have had knowledge, of the commission of the offence. (b)Where any offence under this Act is committed by a person as an agent or employee then, as well as the agent or employee, the principal or employer shall be liable to be proceeded against and punished accordingly unless he can prove to the satisfaction of the Court that he had no knowledge, and could not by the exercise of reasonable diligence, have had knowledge of the commission of the offence.

You can see that this law provides for both a custodial sentence and fine upto three times the amount involved. Directors may also be held liable unless they can prove that they were unaware of the offence being committed.

Based on the above, you can act as appropriate.