COURT&LEGAL: My wife's scalp was burned at a Sinza salon, can we sue?

What you need to know:

The trainee attendant should have known better!

Q. I’m producing a video for my book store business that showcases the latest Christian literature in stock. I will be uploading the video to my YouTube channel. Do I need permission to use the song “Ninanga’ra” by Christina Shusho in the video if I credit her?

A. As a general rule, you should obtain appropriate permission from the copyright holder; just crediting the singer in your video doesn’t exonerate you from copyright infringement. Using the song “Ninanga’ra” by Christina Shusho in your video will probably infringe exclusive rights granted to the copyright holder if you don’t have permission from the holder.

There is a “fair use” doctrine which allows you to use the song in your video without permission only for certain purposes e.g. comment, news or education. Even so, going for fair use should be a last resort because it is a risky option. If you want a licence to use a recorded song, get permission from the copyright holder of both the master recording and the composition by seeking out a licence. The easiest way to do that is to go through the Copyright Society of Tanzania (Cosota) which has the contact information for music publishers. These publishers typically have right to license songs.


Q. Can the trial judge, at the time of writing the judgement, frame an issue around a matter not contained in the pleadings?

A. If the issue framed is about a matter that the trial judge allowed the parties to argue before him/her, the trial judge cannot ignore it even though it is not contained in the pleadings.


Q. My wife, Laura, has been styling her hair at this saloon in Sinza, Dar es Salaam, for years and the hairdresser is aware of her sensitive scalp. Recently, Laura’s scalp was burned by a hair dryer operated by a trainee attendant. Is it possible to claim compensation for the injury suffered?

A. Yes, it is possible. The trainee attendant should have operated the hair dryer with a better duty of care as the hairdresser who is aware of the sensitivity of your wife Laura’s scalp ought to have informed the trainee of this fact. You should seek the help of your advocate, if possible, to advise you on some key steps for a successful claim for compensation for the injury sustained following the styling of Laura’s hair. The advocate will assess your case, taking into consideration matters like the effect of the injury on Laura’s quality of life.


Q. Our company’s CEO has in his office and watches monitors connected to surveillance cameras inside the office premises to monitor the productivity of the employees. However, the footage is being used by the HR manager in disciplinary hearings for late attendance. Is this permissible?

A. There must be a legitimate reason for your CEO to monitor employees; in other words, the monitoring should not prejudice the rights and freedoms of the employees. Using the surveillance cameras inside the office premises to record attendance by the employees, and later using the footage as evidence in disciplinary hearings for late attendance, the CEO/HR would have had to first communicate this to the employees and obtain their consent to that monitoring, or the CEO/HR would have to show that the employees were aware that the monitoring would be used to generate footage to support charges for late attendance during disciplinary hearings.

If not, there is a risk that in a labour dispute before the Commission for Mediation and Arbitration (CMA), the CMA could rule that the use of the footage as evidence in disciplinary hearings for late attendance was not a fair labour practice. This could cost your company a lot of money.


Q. What commitment do directors take on when they sign personal guarantees for a loan granted to the company?

A. When a company’s directors sign personal guarantees, they become subject to a secondary liability to fulfil the company’s guaranteed loan obligations, if the company fails to fulfil those obligations. The company is still principally liable for the guaranteed loan obligations in accordance with the term loan facility agreement and the commercial bank must first issue a demand to the company to satisfy the guaranteed loan obligations before pursuing the directors as the guarantors.

The liabilities of the guarantors, by virtue of being secondary, cannot go beyond the liabilities of the company (principal debtor); so, if there’s a defect in the term loan facility agreement which leads to the extinguishment or reduction in the obligations of the company, the directors’ obligations under the personal guarantees are also extinguished or reduced.