Q&A – 4 December 2023

Canonical disability

My husband is suffering from a canonical disability. I am not sure what to do. Is this a ground for me to claim damages from him? What else can I do?
TE, Lindi

Canonical disability is the inability of either party to have sexual relations with the other. It is another word for impotence. You cannot claim damages if this is a medical condition and which occurred after the marriage. However if you were unaware of this before marriage and were made to believe that all is normal (we doubt it), then you may have a claim for damages. As lawyers we are not qualified to guide you on the medical remedies available but if canonical disability is permanent and incurable then it is a valid ground for divorce.

Unsolicited advertisements from suppliers

My inbox is flooded with mass emails being sent by suppliers who are promoting their services. I get emails from those offering massages, to those showcasing other services they can offer. I hear there is a new law that protects us as consumers from such messages. What about mass messages inviting persons to attend a debate or seminar? Please guide.
OI, Dar

The Electronic Transactions Act of 2015 provides for this and makes it illegal for such commercial suppliers to send you unsolicited messages. Section 32 of this Act states that (1) A person shall not send unsolicited commercial communication on goods or service unless- (a) the consumer consents to the communication; (b) at the beginning of the communication, the communication discloses the identity of sender and its purpose; and (c) that communication gives an opt-out option to reject further communication. (2) The consent requirement is deemed to have been met where- (a) the contact of the addressee and other personal information were collected by the originator of the message in the course of a sale or negotiations for a sale; (b) the originator only sends promotional messages relating to its similar products and services to the addressee; (c) the originator offered the addressee the opportunity to opt-out and the addressee declined to opt-out; and (d) an opportunity to opt-out is provided by the originator to the addressee with every subsequent message. (3) An originator who contravenes this section commits an offence and shall, upon conviction, be liable to a fine of not less than ten million shillings or to imprisonment for a term not less than one year or to both. You can see that if the commercial advert is unsolicited, it is illegal and the sender can be fined ten million shillings or be imprisoned for a minimum of one year, or both. However this does not apply to non commercial communication meaning that mass emails with free debates and seminars would not fall foul under this law.

Further, section 20 of the Cyber Crimes Act of 2015 states that (1) A person shall not, with intent to commit an offence under this Act – (a) initiate the transmission of unsolicited messages; (b) relay or retransmit unsolicited messages , or (c) falsify header information in unsolicited messages; (2) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine of not less than TZS 3M or three times the value of undue advantage received, whichever is greater or to imprisonment for a term of not less than one year or to both.

It is important for those sending out mass emails for commercial purposes or those emails that will end up being an offence under the Cyber Crimes Act to be careful as they can be fined and imprisoned.

Hot shower in Dar hotel

I came to Dar and stayed at a top notch hotel. When taking a hot shower, I burnt myself very badly as the shower water was very hot. I talked to the hotel boss that as part of compensation he allows me to stay free for one week but he is refusing. I have reported him to the Tanzania Tourist Board but they have not taken any action. What should I do?
PL, Dar

In the showers that we know of, there are two knobs- one for cold water and the other for hot water. We are sure the ‘top notch’ hotel you stayed in would have the same facility. Hence we are unsure how you burnt yourself in the shower? That is probably what the hotel owner is asking himself. Whilst we do sympathize with you, it is unlikely that you will recover if it was your own fault. If the shower on its own suddenly changed from hot to extremely hot, then you might not be responsible and a cause of action against the hotel does exist. You can then surely sue but we suggest you consult your attorney before making any moves.

Child testimony

I came home drunk and hit my wife in front of our six year old girl and she was admitted to hospital. I regret what I did and my wife has forgiven me. We told the police that she was beaten by thieves who attacked her on her way home but the medical report says that it is impossible that such a beating came from thieves and the police are now reinvestigating the matter. I know my wife won’t testify against me, but I am worried that our daughter will be called. Is it possible for a child as young as six years to give testimony? Will it carry any value? Please advice
KM, Mwanza

Yes, a testimony of a child is acceptable in any Court of law and it carries weight depending on the age of the child and how she testifies in Court. The child witness is normally submitted to some questioning by the judge/magistrate to establish if she understands the duty to speak the truth. If the Court is satisfied that she understands the duty to speak the truth, the Court will take her testimony and rely on it. Most children’s testimony carries high value because it is a general belief that children are unlikely to tell a lie.