Q&A – 7 October 2013

Disciplining a nurse

A nurse who was attending to my relative literally dumped the patient and left the hospital whilst still on duty. The nurse did not administer critical drugs that the Doctor had prescribed resulting in a prolonged stay in the hospital. The same nurse is known to misbehave in the hospital and is a ticking bomb for people who will be attended by her. Is there a central register that I can complain and get this nurse deregistered?
YU, Dar

Many people are not aware of this but there is a specific law that governs the conduct of nurses. The Nursing and Midwifery Act has a register maintained by the Council established under the Act. What you have stated above amounts to serious professional misconduct, and if true, may result in the nurse being stuck out of the registrar.
The procedure is for you to lodge a written complaint to the Council who shall call for more evidence if required, and investigate the matter. The nurse will have a right to reply to your allegations and the council will make a decision that may include deregistration the nurse.

The Act states that any person who is aggrieved by the decision of the Council may within three months from the date of notification of the decision appeal to the Minister. The Minister may dismiss or allow any appeal or alter or vary the decision of the council or make any order, as he deems fit. Further the Minister shall within one month after determination of the appeal serve a notice of such determination to the concerned person and any person aggrieved by the decision of the Minister may within three months refer the matter to the High Court. Your lawyers can guide you more.

Peculiar insurance law I own 15% of an insurance company in Tanzania

My questions are three fold. Is there a specific requirement that the shareholders cannot solely appoint directors in an insurance company? If I decide to sell my shares do I need consent of the Commissioner of insurance? I find all this quite peculiar and against the free market principles. If required how long do such approvals take?ays?
IO, Dar

The answer to the two of your first questions is yes. The Insurance Act clearly states that an insurer shall satisfy the Commissioner that one third of its directors are unaffiliated directors. The Act further defines “an affiliated director” as individual who- (a) owns twenty five percent or more of shares in the insurance company; (b) is employed by the company or an affiliated company; or (c) is a director or owner of twenty five percent of an affiliated company. Hence in the case of your company, one third of the directors appointed should not in any way be affiliated. The reason to have independent directors is to ensure that the governance of the business is not affected by conflicts of interest.

The Insurance Act also states that any transfer of ownership in an insurer involving ten percent of the voting shares, amalgamation, merger, or other similar arrangement shall be subject to the prior written approval of the Commissioner. The Commissioner may, as a condition for the granting of his consent, require that the amendments which he may recommend be made to the transfer, sale, amalgamation, merger or other similar arrangements. The Commissioner may, in writing, require the information as may be necessary for the applicant to file when making an application for consent.

We are unsure what you find peculiar about the Insurance Act. You are aware that insurance is a regulated business in almost all parts of the world and such provisions in insurance laws are standard. Hiding behind the notion of free market principles does not mean that a sector should remain unregulated.

The Tanzania Insurance Regulatory Authority, the statutory body overseeing insurance business, is known to be an efficient and well organized authority and decisions are made expeditiously. Your lawyers can guide you further.

Further evidence at Court of Appeal

I lost a case at the High Court and have appealed to the Court of Appeal. There is some crucial piece of evidence that will swing the case in my favour which I want to adduce at the Court of Appeal. My lawyer says that is not allowed as the Appellate Court only looks at the proceedings at the High Court including discussing issues of law. Is my lawyer right in what he says?
AT, Dar

The Court of Appeal Rules clearly states as follows: (1) On any appeal from a decision of the High Court or Tribunal acting in the exercise of its original jurisdiction, the Court may (a) re-appraise the evidence and draw inferences of fact; and (b) in its discretion, for sufficient reason, take additional evidence or direct that additional evidence be taken by the trial court or by a commissioner. (2) When additional evidence is taken by the Court, it may be oral or by affidavit and the Court may allow the cross- examination of any deponent. (3) When additional evidence is taken by the trial court, it shall certify such evidence to the Court, with a statement of its own opinion on the credibility of the witness or witnesses giving the additional evidence, when evidence is taken by a commissioner, he shall certify the evidence to the Court without any statement of his own opinion on the credibility of the witness or witnesses. (4) The parties to the appeal shall be entitled to be present when any additional evidence is being taken but that evidence shall not be taken on the presence of any assessor.

From the above, whilst the Court of Appeal has a discretion to take additional evidence, it sparingly does so. Your lawyers can guide further.