NDAs and Non-Circumvention Agreements: What Cap. 345 Will Enforce

This page is the NDA and non-circumvention operating file: what such an agreement binds, which clauses the statute voids on their face, and what is settled before signing. It is not a drafting template, and not a substitute for an advocate.

• The first three months: 90-day launch plan
• Where a name is protected: your company name is not a trade mark
• Before introducing a site: investment land due diligence
• Records that prove the loss: accounting and bookkeeping

As at 14 September 2026. Section texts sit on parliament.go.tz and the stamping position at TRA; this file rests on Cap. 345.

Two private contracts, and the desk that never sees them

An NDA restrains the use and onward disclosure of material one side hands the other. An NDNCA, the introducer instrument of the commodity trade, adds a promise not to go round him and deal direct with the party he produced. Both stand or fall under section 10 of Cap. 345: free consent, competent parties, lawful consideration, lawful object.

Nothing is filed. BRELA keeps company and marks registers, not a register of confidences; TRA sees the paper only as a stampable instrument, and no authority finds a breach for you. Cap. 345 is Mainland law: Zanzibar has its own contract statute and its own High Court, so where the assets or the introduction sit on Unguja or Pemba, fix the governing law and the execution route before signing.

Section 27 voids the promise not to deal; section 23 voids the unlicensed fee

Section 27 makes every agreement void to the extent it restrains anyone from exercising a lawful profession, trade or business, excepting only a seller of goodwill who agrees not to compete with the buyer within specified local limits. Confidentiality survives that test: keeping a secret restrains nobody’s trade. A circumvention promise often does not. An undertaking never to deal with any party we introduce, anywhere, ever, is a restraint at large, and the court strikes the offending extent out rather than redrafting it.

What survives is narrow and dated: name the counterparty, name the transaction, fix a term in months from the introduction.

The licence question comes first. Mineral dealing and broking need a Mining Commission licence under the Mining Act, Cap. 123; gold moves through licensed mineral and gem houses. GN No. 487A of 2025 lists activities reserved for citizens, and a non-citizen introducer billing on one has contracted to do what he may not. Section 23 voids an object a statute forbids, so an unlicensed broker’s commission on a gold parcel is not weak drafting. It is nothing.

Section 74 makes the headline sum a ceiling

Introducer agreements name a penalty payable on bypass, usually a round foreign-currency figure. Section 73 gives compensation for loss naturally arising from the breach. Section 74 provides that where a sum is named, the injured party receives reasonable compensation and no more than that figure: a ceiling, not an entitlement. A claimant who cannot evidence his lost commission recovers a fraction of his own number.

A dollar penalty between two residents on a domestic supply meets a second obstacle. The Foreign Currency Usage Regulations, 2025 (GN No. 198 of 2025), under the Bank of Tanzania Act, Cap. 197 as amended by the Finance Act 2024, require domestic supplies to be quoted and settled in Tanzanian shillings.

Which document carries which promise

Employees and ex-employees sit at a different desk

During employment the duty not to disclose is implied into the contract of service and supported by the Employment and Labour Relations Act, Cap. 366; a signed annexure adds proof and a list. Once employment ends, section 27 applies at full strength, and a clause stopping a leaver from working in the same trade is void to that extent. What holds is narrow: a defined class of material, a named customer group, a paid notice period served away from the desk.

The forum splits. Labour disputes go to the Commission for Mediation and Arbitration under Cap. 366 and the Labour Institutions Act, Cap. 300, within 30 days of termination for unfair termination. A suit that a leaver took the client database belongs to the Commercial Division of the High Court, with a temporary injunction under Order XXXVII of the Civil Procedure Code, Cap. 33 on the Atilio v Mbowe conditions: a prima facie case, irreparable loss, the balance of convenience. Copying it out of a system is a Cybercrimes Act, 2015 matter too.

Forum, seat, and the gap between a judgment and an award

Section 28 voids a term absolutely restricting enforcement by the usual proceedings, or limiting the time for it. A clause allowing the discloser 60 days to sue is void; the Law of Limitation Act, Cap. 89 gives six years on a suit founded on contract, running from the breach. Arbitration agreements are the exception that section preserves.

Choose the forum by what can be collected. Tanzania has been party to the New York Convention since 1964, so a foreign arbitral award is recognised here on narrow grounds. A foreign judgment is not: it registers only from a country designated under the Reciprocal Enforcement of Foreign Judgments Act, Cap. 8, and otherwise the winner sues again on the debt. Against a defendant whose assets are all here, a London-court clause is worth less than arbitration seated in Tanzania.

The order the desks take it in

1. Settle the licence and the reserved list: a fee resting on work the payee may not lawfully do is beyond drafting.
2. Identify the counterparty on paper: BRELA extract, beneficial owners, the signature that binds the company.
3. Decide what is genuinely confidential: schedule it by title and date; material already public weakens the rest.
4. Draft the two promises apart: confidentiality open-ended if you wish, circumvention named and dated.
5. Fix forum, seat and governing law: tested against where the defendant’s assets sit.
6. Stamp the instrument at signing: not on the morning of the hearing.
7. Diarise the term and the limitation clock: six years from the breach, not from discovery.

Papers the file needs, and the stamp that makes them admissible

The signed agreement, with authority for whoever signed: a board resolution or power of attorney, and the BRELA extract naming directors. A schedule of confidential material initialled on both sides. A transmittal record for each disclosure: data-room logs, covering emails. Where a counterparty is introduced, a dated written introduction, acknowledged in writing: the defendant’s first answer is always that he knew the supplier already.

Then the stamp. Duty falls on instruments under the Stamp Duty Act, Cap. 189, and one not duly stamped stays out of evidence until duty and penalty are paid. Confirm the live Schedule entry and amount at the TRA stamp duty desk; this page publishes no rate. The Electronic Transactions Act, 2015 recognises electronic execution and data messages, so an emailed counterpart stands if you can prove sender and time.

Illustrative arithmetic, not a quotation: an introduction that was bypassed

A Dar es Salaam trading company signs an introducer agreement with a non-resident consultant: 2% of the invoiced value of any contract concluded with a supplier he introduces within twelve months, and TZS 500,000,000 named as payable on a bypass. The supplier and the company later contract for TZS 4,200,000,000 and tell him nothing.

The commission lost is 2% of TZS 4,200,000,000, or TZS 84,000,000. A court awards reasonable compensation not exceeding TZS 500,000,000, and the proved loss is TZS 84,000,000. That award is a service fee to a non-resident, so 15% is withheld under the First Schedule to the Income Tax Act, Cap. 332: TZS 12,600,000 to the revenue, TZS 71,400,000 to the consultant. Confirm the live schedule on tra.go.tz.

Two facts take it to zero: a licence the consultant did not hold, voiding the fee under section 23; or an unstamped agreement, which nobody reads until duty and penalty are settled.

Where these files stall

• A worldwide, perpetual circumvention clause struck out under section 27, leaving no pleadable restraint.
• A broker with no Mining Commission licence suing on a gold commission; section 23 kills the fee before bypass is argued.
• The agreement produced unstamped at trial, the hearing stood over while duty and penalty are paid.
• A foreign-court clause chosen for comfort, every asset of the defendant here, no reciprocal route under Cap. 8.

What has moved since 2020

The Arbitration Act, 2020 replaced the colonial-era ordinance, established the Tanzania Arbitration Centre and required arbitrators to be accredited, with procedure in regulations made in 2021. The Personal Data Protection Act, 2022 created a Commission and a duty on controllers and processors to register, so a client list passed under confidentiality raises a processing question as well as a disclosure one, and sending it abroad needs that clearance. Cap. 345 itself has not moved: sections 23, 27, 28, 73 and 74 read as they have for decades.

Mandate-holders this file does not replace

An advocate of record settles the clauses and appears on them; Zatra prepares, structures and coordinates, and does not practise law. TRA owns stamping and withholding. BRELA owns the company register and the marks register under Cap. 326, where a name is protected rather than mentioned. The Mining Commission owns dealer and broker licences; the data protection Commission owns controller registration and transfer approvals. CMA takes the labour referral, commercial judges grant the injunction, the arbitration centre administers the reference. None tells you your agreement is breached until you bring the file, evidenced and stamped.

What to confirm before you act

• Whether the work the fee rests on is licensed, and whether the payee holds that licence.
• Whether any party is a non-citizen and the activity sits on the reserved list in GN No. 487A of 2025.
• The live Schedule entry and duty amount, paid at signing rather than at trial.
• That the restraint names a counterparty, a transaction and a term instead of an industry.
• Where the defendant’s assets are, and whether your forum yields something collectable against them.