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    Non-citizens can continue owning land through inheritance

    Non-citizens can continue owning land through inheritance

    • Welcome move by Government
    • Shelves plan to restrict prohibition for non-citizens from owning land through inheritance
    • Probate and Administration Act remains unchanged
    • Diaspora can breathe a sigh of relief

    On 14 November 2019, the Written Laws (Miscellaneous Amendments) Bill 2019, Act No 8 of 2019 (the Bill) proposed to amend several laws including the Probate and Administration of Estates Act, Cap. 352 (the Act).

    The amendment to the Act initially proposed to impose a restriction on Administrators and Executors in distributing the estate of the deceased which is in the form of landed property to heirs who are non-citizens. In short, the Bill proposed that non-citizen heirs would only be allowed to benefit from the proceeds realised from the disposition of the said landed property after the Administrator or Executor disposes off the property.

    However, in a welcome move, after the Bill went through parliamentary debate, the Government has shelved amending the Act meaning that heirs who are non-citizens can continue to inherit property, not necessitating for administrators or executors to dispose of the property for distribution of the proceeds. The Written Laws (Miscellaneous Amendments) Act, 2020, which came into force on 21 February 2020, now contains no amendment disallowing non-citizens from owning landed property through inheritance.

    The laws of Tanzania through the provisions of section 20 of the Land Act prohibit foreigners to acquire land unless it is for investment purposes under the Tanzania Investment Act. The Tanzania Investment Act makes it clear that a non-citizen can only acquire land if it is for investment purposes and that investment must be under the Tanzania Investment Centre. Otherwise non-citizens are not allowed to hold land in Tanzania.

    However, through jurisprudential developments by way of case law, the High Court (Dr Fauz Twaib, J.), in the case of Emmanuel Marangakis as Attorney of Anastasios Anagnostou vs The Administrator General, Civil Case No. 1 of 2011 (Marangakis case), in a historic and welcome decision, ruled that non-citizen heirs could own land by way of inheritance. The Court in this case interpreted that what was prohibited by the Land Act was direct grant or allocation of land to non-citizens and not ownership by way of inheritance.

    The decision by the Government not to continue with the amendment of the Act is going to ensure that the diaspora, amongst others, continue to maintain their nexus to Tanzania, which will prove beneficial to the country.

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    Malawi Enact New Trademarks Law

    The new Act provides for, inter alia, the registration of:

    1. service marks;
    2. collective marks; and
    3. geographical indications.
    4. In addition, it includes an expanded definition of “trademark”, which makes it possible to register non-traditional marks, such as: non-visual signs or any sign or mark that is sufficiently described in a clear, precise, intelligible and objective manner.

    In terms of the new Act, it is compulsory to file a declaration of intention to use at the time of filing an application. We suggest that all new applications be accompanied by a declaration of intention to use, in order to avoid problems when filing an application.

    It is important note that, in terms of The New Act, a notice of opposition must be filed within 30 days of the advertisement of a trade mark application. The New Act also provides for additional grounds of opposition, including that the mark applied for may not be misleading as to geographical origin, may not consist of the common name of goods or services or be identical to, or contain, armorial bearings, flags or other emblems. It is now also possible to oppose the registration of a mark based on a registered or unregistered well-known trade mark.

    No new regulations setting out the procedure to deal with applications for service marks, collective marks, geographical indications and non-traditional marks have been promulgated yet. Therefore, how these applications will be dealt with, in practice, remains to be seen. In the interim, the current regulations to the previous Act (Trademarks Act 1957) will continue to apply.

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    Employment contracts in Tanzania

    Employment contracts in Tanzania are generally for an indefinite period and are terminated either by notice or payment in lieu of notice; however, others exist for an agreed fixed period. The latter are more common in non-governmental organisations where budgets are based on donor funding, which is typically given in tranches of one, three or five years. In those sectors, employers prefer fixed-term to open-ended contracts as they enable them to avoid being saddled with the cost of maintaining employees that are no longer required upon the expiry of the grant or specific project for which they were employed.

    The underlying understanding between the parties of fixed-term contracts is that that once the fixed period has ended, the contract is automatically terminated without any further liability on the employer’s part on account of unfair termination or redundancy.

    However, despite this apparently clear intention, Tanzanian jurisprudence is awash with claims lodged by employees on the grounds that the non-renewal of such contracts amounted to unfair termination.

    Fixed-term contracts

    Fortunately, both the High court Labour Division and the Court of Appeal have pronounced themselves robustly on the nature and legal effect of fixed-term contracts. The bottom line is that such contracts bind the parties to the fixed term specified therein and confer no rights of renewal unless agreed otherwise by the parties. Such contracts carry no rights beyond their expiry dates and employers are not obliged to issue a notice of termination or give any reasons for termination. Once the agreed term has ended, the contract expires with it and the employer has no obligation to justify the termination or provide reasons for non-renewal.

    Where the contract provides that it may be renewed upon its expiry, it is incumbent on the employer to notify the employee prior to the expiry date that the contract will not be renewed. However, failure to give this notification does not amount to an automatic renewal because the renewal is a new contract which requires the parties’ agreement on the terms. This may not apply only where the contract provides that it will automatically renew on the same terms unless either party expresses a contrary intention to the other in writing. In such case, the contract renews automatically unless either party has notified the other to the contrary.

    Therefore, the courts will not infer a renewal of contract where none was intended by the parties. It is to be assumed that when employees sign a contract, they are aware that it is for a fixed term and that they will therefore not be entitled to any compensation if it is not renewed. The expiry of a fixed contractual period does not constitute an unlawful termination of the contract.

    Legitimate expectation

    Every rule has an exception and the principle enunciated above is no exception. There are certain situations when an employee may be able to successfully claim unfair termination if a fixed-term contract is not renewed – for example, where employees can prove that they had a legitimate expectation that their contract would be renewed. The courts have held that legitimate expectation is not a mere anticipation, wish, desire or hope. The expectation must be based on a cogent, rational and objective reason induced by the employer either expressly or by conduct.

    A legitimate expectation can arise in various ways. For instance, where the contract provides that in the case of non-renewal, the employer will give the employee a certain length of notice prior to the expiry date. If such notice is not given, the employee may assume that the contract will be renewed. Similarly, where the contract period has expired but the employees continue to work and receive pay, the contract will be deemed to have been renewed on the same terms.

    Repeated past renewals also create a legitimate expectation. If a contract has been renewed several times in the past, unless the employee is notified otherwise, they are entitled to assume that it will be similarly renewed. An express promise by the employer that the contract will be renewed has a similar effect. However, where the promise is conditional on certain deliverables being met (eg, satisfactory performance, continuation of funding or the execution of a new contract), the expectation is valid only if such conditions have been fulfilled.

    Where a legitimate expectation has been proved, failure to renew the contract would amount to unfair termination. The burden lies on the employee to prove the existence of the legitimate expectation.

    The rationale for the above legal position is that courts do not make contracts for parties, but merely interpret those contracts which parties themselves have voluntarily entered into. Accordingly, inferring an automatic renewal in a fixed term contract would amount to creating an indefinite contract which was not intended by the parties.

    For further information on this topic please contact Mudrikat A. Kiobya  at AJM Solicitors and Advocate Chambers (+255 714 389438) or email info@ajmsolicitors.co.tz).

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    Tanzania Cancelled all Mining Licences

    The government of Tanzania has  cancelled  all licenses for mining and its owners have to re-apply for the Mineral Law and its regulations.

    Speaking to journalists today on May 11, 2018, the chairman of the Commission of Minerals Professor Idris Kikula said the Government Notice Number 2018 stated that all licensed areas were returned to the government without re-confirmation.

    He said the decision was made in accordance with the Mining Act of 2010 as ammended in 2017 read together with regulation 21 of the Mining (Mineral rights) regulations of 2017 . He said the licensed licenses by his owners should apply again to the 11 company, that those licenses include mid and large mines. These mines include Kabanga Nickel Company Limited, National Mineral Development Corporation Limited, Bafex Tanzania Limited which owns three-license licenses. Other are Mabangu Mining Limited, Resolute (Tanzania) Limited, Wigu Hill Mining Company Limited, Nachingwea Nickel Limited and Precious Metals Refinery Company Limited.

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    Tanzania Enacts New Mining Regulations

    Tanzania has enacted new mining regulations to complete a set of changes brought by the amendment of the mining Laws of 2017. The enacted regulations includes Local contents Regulations; Mineral Beneficiations Regulations; Mineral Rights Regulations; Minerals and Mineral concentrates Regulations; Audit and Inspection of Records Regulations; and Geological Survey of Tanzania Regulations.

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