Q&A – 6 July 2020

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Constitutionality of Saturday cleaning campaign

I am an active member and believer of the Seventh Day Adventist Church (the SDA church). And have always been observing the fundamental doctrines and teachings of our church which strictly dedicates the seventh day of every week (Saturday) by keeping it holy for resting, worshiping and praising the Almighty God. My concern is about the Guidelines that designate every Saturday of the last week of each month as the national cleanliness day. I believe that the Guidelines interfere with my right to observe Saturday as a worship day. Do the Guidelines still exist and under the laws is there any remedy?
LL, Mwanza

We are aware that the Minister of State, Office of the Vice President, Union Affairs and Environment issued the Environmental Management (Designation of National Cleanliness Day) Guidelines, 2016. The said Guidelines designated every Saturday of the last week of each month as a National Cleanliness Day.

Every person without exception is mandated by the Guidelines to participate in the cleanliness of the environment failing of which risks penalties under the provisions of the Environmental Management Act and the Regulations thereunder.

It is worth noting that each and every person in Tanzania has the right to enjoy the fundamental rights engraved under Part II, Basic Rights and Duties of our Constitution and expressly provided for under Article 12 to 28. The right to freedom of conscience and the religion which is provided for under Article 19 is enforceable under Article 26(2) of the Constitution read together with sections 4, 5 and 6 of the Basic Rights and Duties Enforcement Act. Therefore, the remedy is to lodge a petition before the High Court to challenge the constitutionality of the Guidelines.

However, this remedy has already been sought through a petition filed challenging the Guidelines. The Court held that, “the designation of the Saturday a Sabbath for members of SDA church during the last week of every month as a national cleanliness day is violative of the Constitution as it curtails the right to enjoyment of religion guaranteed under Article 19 (1) of the Constitution.” In short the Court declared the Guidelines unconstitutional and directed the respective authority to make good the offensive provisions.

Considering the ruling above, it is our opinion that the Guidelines are no longer in force.

Duties of company secretary

I was recently added as a company secretary in a company owned by my parents. Please highlight the roles and consequences and implications of acting as a company secretary.
PO, Mtwara

All companies in Tanzania are required to appoint a company secretary. According to section 187 of the Companies Act, No. 12 of 2002 (the Act), a company, whether private or public, must appoint a company secretary during the company’s incorporation.

The company secretary is responsible for regulating and efficiently managing the legal and statutory requirements of the company. The Act imposes a number of responsibilities on officers of the company and penalties for non-compliance. It is worth understanding that the term “officer” has been defined by the Act to include directors, managers or secretary.

As an officer of the company, the fundamental duties of the company secretary include filling annual returns, auditor’s report, information of the registered office and audited financial statements; ensuring safe custody of the company seal; processing share transfer documentations and recording and maintaining the register of members and minutes book.

Given the fact that a company secretary is an officer of the company, same as managers or directors, she/he is required to act honestly, with reasonable care and in good faith, failure of which might result to offences as stipulated under the Act. There are a number of sections in the Act which provide for offences that any company officer could commit. A good example can be seen from section 22 of the Act (failure to send copies of the MEMARTS to members); section 115(4) (failure to maintain register of members); section 55 (failure to file a return of the allotment of shares); section 205 (failure to maintain a register of directors); section 133 (default in holding annual general meeting of the company) to mention a few.

On top of that, a company secretary can also be held responsible for failure of an entity to pay tax if he has failed to exercise the degree of care, diligence and skill that would have been exercised in preventing the failure to pay tax. Section 65 of the Tax Administration Act makes it clear that, ‘where an entity fails to pay tax on time, a manager or a person who was the manager of that entity during the time of occurrence of the default shall be jointly and severally liable with the entity for payment of the tax.’

Furthermore, a company secretary may also be held personally liable if she/he acts beyond her/his authority, for any loss suffered by the company or a third party on account of her/his action.

Company having no capacity to trade

A company we dealt with apparently has no authority under its memorandum to engage in trading. We supplied the company with certain goods for trading purposes and the directors are now refusing to pay stating that the company was not allowed to trade. Not only has the company bought from us, but they have sold the goods and earned funds. What can we do?
KI, Dar

Merely because the memorandum does not state trading as one of its objects doesn’t mean that you cannot proceed against the company to recover your funds. Section 35 of the Companies Act states that (l) The validity of an act done by a company shall not be called into question on the ground of lack of capacity by reason of anything in the company’s memorandum. (2) A member of a company may bring proceedings to restrain the doing of an act which but for subsection (1) would be beyond the company’s capacity; but no such proceedings shall lie in respect of an act to be done in fulfilment of a legal obligation arising from a previous act of the company. Hence notwithstanding what the memorandum states, you have a cause of action against the company and can sue for recovery.