Q&A – 8 October 2012
Double jeopardy in employment
I am a senior human resource officer in one of the leading mining companies in Tanzania. Recently a theft occurred in our company which was reported to the Police and several suspects, some of whom are our employees (guards), were arrested and taken to Court. They still stand charged for stealing from their employer. My boss wants them terminated for the reason that they orally asked him for forgiveness and admitted contributing to such theft. In actual fact they have pleaded not guilty to theft charges in Court. Can I proceed to take disciplinary action against them. Please advice.
TH, Dar
The law governing employment matters specifically the Employment and Labour Relations Act No 26 of 2004 has in unambiguous words stated under Section 37 (5) that no disciplinary action in form of penalty, termination or dismissal shall lie upon an employee who has been charged with a criminal offence which is substantially the same until final determination by the Court and any appeal thereto.
Hence any action you intend to take against the employees, if at all it relates to the issue of theft, shall then be against the provision of the law we have quoted. The said provision was meant to protect employees from double jeopardy but there are still some grey areas of law that have yet to be fully clarified. A labour consultant can guide you further as you likely do not want to continue employing persons who have admitted to your boss that they were involved in this incident.
Interpreting the law
There is a case I am involved in where the law is unclear in that there are certain words that are quite ambiguous but are critical to the success or failure of my case.Obviously both sides are trying to construct the law in their favour. How should the law be constructed? Why can’t the draftsperson draft a watertight law that will not lead to such confusion?
UK, Dar
The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning, if they have a technical meaning. Otherwise such words be used in their ordinary meaning. The words and phrases also must be construed according to the rules of grammar. These are some of the limbs of literal interpretation of the law. Various case law has stated that if there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences.
The other way a statute can be interpreted is through the mischief rule which is a rule of construction that judges can apply in order to discover Parliament’s intention. In applying the rule, the court is essentially asking the question what was the “mischief” that the previous law did not cover, which Parliament was seeking to remedy when it passed the law now being reviewed by the court?
The other commonly used rule is the golden rule which allows a judge to depart from a word’s normal meaning in order to avoid an absurd result.
It is unfortunate that you have not told us what law and what words are contentious but when interpreting the law in question, the above rules of construction will likely apply.
Answering your second question on why the draftsperson cannot tighten the law so that there are no loopholes, you must realize that at the time of drafting the draftsperson may not be able to contemplate all the scenarios. What is important that the law change as and when case law develops, ensuring that the law remains practical for changing times. Drafting a law is no easy task.
Faulty organ, no refund
I am a professional organ player and teacher. When I bought an organ for myself in one of the electronic shops, little did I know that the keys were all mixed up. Only two of the keys sound proper the rest sound totally different. I went back to the shop and they showed me a sign that once goods are sold they are non-returnable. I tried explaining to the shop owner but he is not cooperating. How do I handle this?
PO, Mwanza
A mere sign that the goods are non returnable is no bar for you to return the goods if they are not of the required quality. The sign is meant to reduce and mitigate potential claims on the shopkeeper- such signs cannot eliminate his liability or remedy a breach of contract.
When you bought the organ, you entered into a contract, albeit an oral one, whereby you paid for the organ and he supplied it to you. One of the reasons you bought the organ is to use it and not merely keep it as a show piece. With the keys in a mess, you are not able to use it.
An organ with such issues with its keys has no use to you and the shopkeeper is in breach of his contract.
If the shopkeeper does not understand this reasoning, you can proceed to send a demand note to him through your lawyers and if that does not work, you have all the right to proceed sue the shopkeeper in Court.
Our opinion is based on the fact that you have not spoiled the keys yourself. That is likely what the shopkeeper will claim and you should be prepared to bring evidence to counter such a claim by the shopkeeper. The issue of electronic gadgets malfunctioning is not uncommon in the market in Tanzania and elsewhere.