Q&A – 29 June 2020

Truck forfeiture due to drugs

I own trucks that transport goods within and outside the country. In 2017 my driver was driving a truck containing 30 tons of fruit from Tanga to Nairobi. On the way he was arrested by police because he was apparently found carrying 50 kilograms of cannabis sativa (bhang). He was however acquitted after a full trial because he claimed he did not pack the goods in the truck so could not know that the truck had the bhang. However, the Court still ordered the forfeiture of my truck on the ground that it was used to commit the crime, even though the prosecution failed to link the crime with the accused. Personally, I know nothing about the bhang that was found in my truck and it was not part of the goods my customer packed. I feel justice has not been done to me because I was not part of that crime, if any. Does the law allow forfeiture without a prior conviction? Can the Court order forfeiture of property that does not belong to the accused? What can I do to get my truck back?
PO, Morogoro

Section 49A of the Drug Control and Enforcement Act, 2015 as amended by Act No.15 of 2017 allows confiscation without necessarily convicting the accused. There are two circumstances where the law allows forfeiture of an instrument used to commit a crime without necessarily convicting the accused. One, where the accused absconds or dies in the course of investigation or trial. Two, where the accused is acquitted but there is evidence proving that the instrument was used to commit the offence. In other words, the accused might be innocent but the property is guilty because it has been proved that it was used to commit the offence charged.

The Court can order the confiscation of the property used to commit a crime even though that property does not belong to the accused. The guilt of the property and the guilt of the accused are treated differently. The guilt of the accused must be proved beyond reasonable doubt but the guilt of the property used to commit a crime is proved within the balance of probability, which is what has happened in your case.

Section 49A (5) of the Drug Control and Enforcement Act, 2015 as amended by the Drug Control (Amendment) Act, 2017 however gives the right to owners of properties confiscated to make an application to set aside the confiscation order made against the property. The law does not provide a time limit within which the owner should make an application to set aside the confiscation order. We recommend that the application be made at the earliest possible after one becomes aware of the confiscation order.

Insurance company filing inflated statements

I know for sure that a certain insurance company is hiding losses in its financial statements. How can the Tanzania Revenue Authority let go of such a company? Are insurance companies not regulated in Tanzania? Who can I report this to?
PR, Dar

If the company is hiding losses, that means it is inflating its statements and likely not evading but paying taxes, which the TRA would likely be happier with. What the company is likely trying to do is not show its dire financial position to its regulator, the Tanzania Insurance Regulatory Authority (TIRA), who can proceed sanction such a poorly performing insurer.

Section 157 of the Insurance Act makes false reporting a serious offence, and states that (1) a person who shall in any statement, return, report, certificate, balance sheet or other document required by or for the purposes of this Act, willfully makes a statement which is false in any material particular commits an offence. Subsection 4 of the same section makes this offence imprisonable for a minimum term of 2 years, or a fine of TZS 5,000,000 or both.

Should you wish to report the insurer, you must inform TIRA and provide the relevant details.

Forced to disclose age

I am a beautiful woman and was approached to become a director in a company, which I accepted and got paid for. When the appointment forms were brought, the secretary asked me for my age and I inserted adult. I told the secretary that women never disclose their age to people and this would be a violation of my rights as a woman. The secretary said he would try convince BRELA who have come back and refused. What should I do? Can I sue BRELA?
UU, Dar

Whether you are a beautiful woman or not, or a handsome man, the law requires you, upon being appointed as a director, to disclose your age. You cannot write adult in the appointment form. Further, we do not see a so called violation of your rights as a woman by disclosing your age. Section 195 of the Companies Act states that (1) Any person who is appointed or to his knowledge proposed to be appointed director of a company subject to section 194 at a time before he has attained the age of twenty-one or after he attained any retiring age applicable to him as director either under this Act or under the company’s articles shall give notice of his age to the company.

Subsection 2 states that any person who (a) fails to give notice of his age as required by this section; or (b) acts as director under any appointment which is invalid or has terminated by reason of his age shall be liable to a default fine You thus have two options. First option is for you to disclose your age. Second option is for you not to proceed as a director of the company since you are not able to fulfil one of the requirements under the Companies Act.

You will likely then have to refund the funds that were advanced to you to act as a director. As for suing BRELA, we see no cause of action against BRELA.

The Companies Act dictates what can and cannot be done.