Q&A – 3 October 2022

Boyfriends name in Will

I am a married and had a girlfriend who has named me in her Will as having been her boyfriend. Is there a way I can get an injunction from being mentioned like this? This girl is quite sick and there are chances she might not survive. How can I stop from being named? This former girlfriend had told her friend that she must name me as that is how her soul will get relieved. I am super stressed. Please guide.
TT, Dar

We are sorry to hear all this. It is certainly very stressful when you are married and have a girlfriend who decides to throw you in the deep end.

Unfortunately, we do not see how you can stop your ex-girlfriend from naming you in her Will or otherwise. She is entitled to name whoever she wants and whatever she wants in her Will. It is her document.

Further from the facts it seems that what she is intending to write or has written is not false, hence you can unlikely sue her successfully for defamation. If you file an application for an injunction there is a high chance that this application itself will come into the public domain as files in Court are accessible and hence make things even worse for you.

You need to speak to your lawyer or a counsellor for further guidance. This is a lesson for you, and other men.

Employee terminated and prosecuted for theft

My employer terminated me for allegations of theft of the Company’s money. Immediately after the conclusion of the disciplinary hearing and terminating me from employment, he reported me to the Police for arrest and investigation over the same offence for which I was terminated. I was charged with the offence and the hearing is still ongoing. Can I raise the defence that I have been punished by the employer for the offence by terminating my employment contract so it is unfair to be prosecuted for the same offence again?
JN, Mwanza

Section 21 of the Penal Code [Cap.16 R.E 2019] bars imposition of double punishment to a person for the same offence. However, in our view the termination of employment is a contractual sanction provided under the employment contract and the labour laws; it is not a penal sanction. Double punishment barred by section 21 of the Penal Code envisaged penal punishments and not contractual sanctions like termination of employment. For that reason we don’t think your intended defence can hold water because the termination of your employment by the employer was done in exercise of the employer’s power to terminate an employee for misconduct. The punishment is what the Court will impose in case you are found guilty of theft. These are two separate processes.

Business loss due to delay of a train

I got an offer to supply goods to a certain company and arranged a meeting in the buyers’ town in order to negotiate the purchase price. I booked a train to meet the buyer and the train was delayed to depart for ten hours. By the time I arrived in the buyer’s town, the deal had been cancelled due to my late arrival. I missed a deal of two hundred thousand US dollars due to the train’s delay to start the journey. Can I recover this from the train company?
KL, Kigoma

If the deal was so important you should have just flown, but that is, now, an afterthought!

Section 37 of the Railways Act, 2017 limits the liability of the Railways Corporation for passengers’ losses arising from the delay caused by failure to start or complete the journey within the set time. Where a train fails to start the journey within 24 hours from the time set, for whatever reason, the passenger is only entitled to a refund of the fare paid by him and no more compensation. In case of failure to complete the journey within 48 hours, the passenger is entitled to a refund of the fare paid by him or alternatively, the Corporation may provide the passenger with alternative means of transport available and affordable to the Corporation. The law protects the Railway Corporation against any claim for loss attributed to delay of a passengers’ train. Hence there is no way you can be compensated for the business loss you suffered due to the train’s delay to start the journey.

Retrial of employment disputes originating from repealed laws

I had an employment dispute with my employer which I referred to the Labour Conciliation Board in accordance with the repealed labour laws. The Board decided the dispute in my favour and ordered the employer to pay me compensation for unfairly terminating me. The employer appealed the decision of the Board to the Minister who overturned the decision of the Board. The matter finally went up to the Court of Appeal which quashed the decision of the Board, the Minister and the High Court and ordered the dispute to be re-heard. Labour Conciliation does no longer exist. Where do I take my dispute for it to be reheard?
DP, Dar

Paragraph 13(5) of the Third Schedule to the Employment and Labour Relations Act [Cap.366 R.E 2019], gives the Commission for Mediation and Arbitration power to mediate or arbitrate the disputes originating from the repealed labour laws. However, as per paragraph 13(1) of the Third Schedule to the Employment and Labour Relations Act, the rights of the parties in disputes arising from the repealed labour laws must be determined in accordance with the substantive provisions of the repealed labour laws. Only the procedure applicable at the Commission for Mediation and Arbitration is applied in mediating, hearing or re-hearing of the disputes arising from the repealed labour laws.

Therefore, the competent body to rehear your employment complaint that was formerly heard by the defunct Labour Conciliation Board is the Commission for Mediation and Arbitration and the rehearing shall be done according to the procedure applicable to the Commission though the reliefs shall be granted as per the repealed laws.