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Mauritius

Legal Environment of Business

[REPORT]

M. Noir
ID: 1420875

Submission: 8th November 2014

Table of Contents
Introduction

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The Hybrid Legal System

The Structure of the Courts

The Substantive Law of Mauritius

The Constitution

The various persons in the Legal System

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Difference between Civil action, Criminal


action and Constitutional action

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Applications to Business Environment

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General Comment on the Module

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Introduction
This five-week workshop on the legal environment of business has been really enriching. The
overall topics discussed in this module was about the rule of law, the applications of law in different
situations, the structure of the courts, the law system, and about the constitution. This module has
been very interesting, with nice illustrations and examples when targeting a particular topic.
First of all, what is law? Why should one abide by the law? It is possible to describe law as the
body of official rules and regulations, generally found in constitutions, legislations, judicial opinions,
and similar tools, which are used to govern a society and to control the behavior of its members. Law
is thus a formal mechanism of social control. Legal systems are particular ways of establishing and
maintaining social order. Professor Hart (1961) defined law as a system of rules, a union of primary
and secondary rules.
Law is a civilization process. It is a mechanism to get people more civilized and to make people
more human being, such that democracy is made more democratic.
Let us consider the case of the Agency below and the proposed solution to the problem.
Jerry has an OK ticket which he bought from Miaw Agency. At the time of boarding, he is informed by
the airline that the flight is full. He is unable to board the plane. What action can Jerry envisage
against the guilty party and who is the guilty party? When Jerry contacted the travel agent, the
manager tells him that it is not the agency that off-loaded him. When he contacts the airline, the
latter replies that the ticket was not issued by the airline but by the travel agent.
The acts and doings of an agent bind the principal. In this case, the travel agent is an agent of
the airline and the airline is bound by the acts and doings of the agent. Accordingly, the airline cannot
plead pas moi sa, li sa. This is the rule that applies for instrument agents, commercial agents or any
company agent, in accordance with Article 1986 of the Civil Code: Mandat. The agent acts on behalf
on the airline (the principal).
Jerry should go to the airline and refute that the ticket bore the airlines name; thus, it is the
airline that should compensate.
A distinction should however be made where agents are fake agents. In such a situation, the
relationship between the principal and the agent is examined properly to see whether there was
complicity or negligence on the part of the principal for the acts and doings of the agent. If there was
complicity and negligence, then the principal is bound. If there no complicity or negligence, the
principal is not bound.

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The Hybrid Legal System


Mauritius had been colonized by the French and the British. The French and the British have left
their imprint on the legal system of Mauritius. Mauritius has therefore inherited both the:

French Law (Code Civil Mauricien/Code Napoleon)


British Law (Procedural Law, For example: Law of evidence)

The substantive content of part of Mauritian law is derived from the French Civil Code (as
amended over the years to suit the Mauritian context), the penal code and to a lesser extent, the
Code de Commerce. On the other hand, the procedural law is derived mainly from English law,
especially the law of procedure and evidence. We therefore say that our substantive law is French law
while our procedural law is English law.
However, our law is neither purely civilian nor purely common law. By taking the characteristics of
both French and British law, we have got a hybrid legal system which has been adapted to the
Mauritian context (Mauritian law).

Structure of Courts
The structure and hierarchy of courts in Mauritius are set out in the Courts Act. The judiciary is
one the three pillars of our sovereign democratic state. By virtue of the constitution, it is vested with
the power to administer justice in the Republic of Mauritius.
Mauritius has a single-structured judicial system consisting of two parts: the Supreme Court and
the subordinate courts. The Supreme Court has various divisions exercising jurisdiction as the
Masters Court, the Court of first instance in civil and criminal proceedings, the appellate jurisdiction
(to hear and determine civil and criminal appeals from decisions of the subordinate courts), the Court
of Civil Appeal and the Court of Criminal Appeal (to hear and determine appeals from decisions of the
Supreme Court sitting as Court of first instance). The subordinate courts, on the other hand, consist of
the Court of Rodrigues, the District Courts, the Intermediate Court and the Industrial Court.

District Courts
A District Court is a subordinate court in the hierarchy of courts in Mauritius.
According to Section 93 of the Courts Act, there shall be a court in every district in Mauritius,
which shall be known as a District Court. Every District Court is presided by a District
Magistrate. Any barrister who has at least 2 years standing at the bar can be a Magistrate. The
Magistrate is appointed by the Judicial and Legal Service Commission (JLSC).
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District Courts have 3 types of jurisdictions:

Civil Jurisdiction
A District Court has jurisdiction in all civil cases where the sum of
dispute or the damages does not exceed Rs 50,000. For example, there is a
contract of sale between Axel and Yana, where Axel has to pay Yana Rs
30,000. If Axel fails to pay the sum, Yana can sue before a District Court.
Civil Jurisdiction is also characterized by domestic violence cases and landlord
and tenant cases.

Criminal Jurisdiction
Criminal Jurisdiction is where any offender can be sent for
imprisonment for a maximum of 2 years. A District Court has jurisdiction to
hear all criminal cases except those offences mentioned in Section 116 of the
Courts Act and offences which, under any other enactment, are punishable by
death or penal servitude for life, or are excluded from the jurisdiction of the
Magistrate.

Juvenile Courts
Juvenile Courts forms part of the District Court for children under the
age of 16 for any offence. They have to appear in Court with their parents. The
difference between district and juvenile hearings is that when the court is
hearing the cases, the door is opened for adults while the doors are closed
when undergoing hearings of children.

The Intermediate Court


Just above the District Courts, we have the Intermediate Court. It is an all-island
jurisdiction a central court. The Intermediate Court is set out under Section 80 of the Courts
Act. There is only 1 Intermediate Court in Mauritius. The Intermediate Court consists of a
President and a number of Magistrates. It sits in many divisions Criminal and Civil divisions.
The Intermediate Court has jurisdiction in all civil cases when the sum in dispute
exceeds Rs 50,000 but does not exceed Rs 500,000. For example, there is a contract of sale
between Fudge and Duke, where Fudge has to pay Duke Rs 80,000. If Fudge fails to pay the
sum, Duke can sue Fudge before the Intermediate Court.
Under the criminal jurisdiction, one can be sent up to 30 years imprisonment for cases
like trafficking, rape, cases where there are death occurring as a result of negligence either by
driving or when people are falling and dying at work (Occupational Safety and Health Act).
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Industrial Court
Apart from these main courts, we also have one 1 Industrial Court in Mauritius to hear
matters arising between employers and employees. The Industrial Court is set up under
Section 3 of the Industrial Court Act. The Industrial Court has civil and criminal jurisdiction to
hear industrial disputes. The Industrial Court is composed of 2 Magistrates who are appointed
by the Judicial and Legal Service Commission (JLSC).
If one has been dismissed unfairly, thus, challenging the employer, the person goes to
the Industrial Court. The method of adjudication is different. It tries to see if there can be
reconciliation between the employer and the employee.
Supreme Court
The Supreme Court has unlimited jurisdiction to hear and determine any civil and
criminal case under any law. It is a superior court of record. Being a superior court, the
Supreme Court has exercises general powers of supervision over any civil or criminal
proceedings before a subordinate court (District Court, Industrial Court, and Intermediate
Court).
The Supreme Court also has jurisdiction to ensure that there is good administration of
justice by courts.
Other divisions of the Supreme Court include the Masters Court, the Commercial
Court and the Family Court.
Masters Court
The Masters Court is presided by the Master & Registrar and the Deputy Master &
Registrar. It exercises the jurisdiction conferred upon it by the Code Civil Mauricien in relation
to the division of immovable property and by the Sale of Immovable Property Act.
The Masters Court is concerned with succession matters as well (Partage des biens).
Scenario
A Couple, Mr and Mrs Noir, have got 100 arpents of land. They have 2 daughters and 2 sons.
They want to do a division in kind (partage) during their lifetime among their children. How
will they be able to do so under the law.
The property is divided into 5 portions whereby each one gets 20% (20 arpents). The
20% that remains is known as quotit disponible. This 20% depends on the parents (how
they will give this 20 arpents) for the sake of achieving equity.
For example, assuming the youngest son is looking after the parents, so, it would depend on
the parents about whether they would give it to the son.
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There could be a situation where one son is a doctor, the other son is an engineer and a
daughter is an architect and the other daughter has not been able to study. The remaining
20% can be allocated to that daughter, depending on the parents decision to make them all
feel equal.
At most, the 20% can also be divided in 4 again among the children, or it can be given
to someone outside the family or to charity. Mr and Mrs Noir can also keep the usufruct to
prevent future mishaps.
Commercial Court
The Commercial division of the Supreme Court was set up administratively in 2009.
Two Puisne Judges designated by the Chief Justice preside over that division. It entertains,
hears and determines matters arising under the Companies Act and the Insolvency Act 2009,
disputes relating to banking, bills of exchange, offshore business, patents, and trademarks or
passing off, disputes between traders and related matters and generally anything which is of a
commercial nature.
Family Court
The Family Division of the Supreme Court was set up administratively in January 2008.
It exercises jurisdiction in any matter under the Divorce and Judicial Separation Act or any
other enactment which relates to alimony, maintenance or the custody or guardianship of
minors, other than a matter which is, under an enactment, within the exclusive jurisdiction of
a Magistrate. Two Puisne Judges designated by the Chief Justice, preside over that division.
The Judicial Committee of the Privy Council (JCPC)
The Judicial Committee is the final court of appeal of Mauritius. An appeal shall lie
from the decisions of the Court of Appeal or the Supreme Court to the Judicial Committee as
of right. The hearings are usually held in the UK. In 2008 and 2010, however, appeal cases
from the decisions of the Supreme Court have been heard before the Judicial Committee of
the Privy Council in Mauritius itself.

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The Substantive Law of Mauritius


There are two major systems of law:

Common Law System


Continental Law System

With respect to the common law system, it is a system developed by the Courts and the decisions
of the Court becomes the law of the country English System. With respect to the Continental
System, the laws are found in codes such as the Civil Code, the Criminal Code, the Commercial Code
and the Courts here, in Mauritius, only apply those Codes. In Mauritius, we have a combination of
codes the Civil Code, Criminal Code and also law developed by the Courts in the English fashion.
This is due to our historical background (Ruled by the French till 1810). In the act of capitalization
in 1810, the French and the British had agreed that the laws of Mauritius would not change with the
arrival of the British. The main reason was that there was a lot of land given by the French Parliament
to the French colons in Mauritius. All those French colonies were related to Royalty.
Our main source of the law is the Constitution. After the Constitution we have the Civil Code. Law
comprises of civil law, criminal law, administrative law and constitutional law. Our Civil Law is found
in the Civil Code.

The Constitution
The Constitution is the source of the law and every authority as well as the exercise of
authority is subject to the constitution. The constitution provides for freedom of association and
freedom from slavery and forced labour. In a democratic society, nobody can force you to do anything
against your consent.
It is subject to rights and freedom in society as to what you want to work as. The source or
exercise of authority is found in the constitution as the supreme law. Anything that you do and you do
not do is found in the constitution. In this sense, the constitution is very different from the rest of the
laws. The constitution is the charter of the people, whereas the other laws are imposed either by
parliament or contractual obligations imposed by citizens.
If there is a law that goes against the constitution, that law is null and void.
Scenario
At the end of the first year of Naals employment, his employer calls him, congratulates him and
offers him employment on a permanent basis, and expects him to sign and submit it to him within 24
hours. This is a cause of celebration for Naal. However, one of the clauses of the new contract
imposes on him a prohibition to engage in a similar work on the termination of the contract, for five
years following the termination. Is this correct?
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The employer cannot impose a five year ban on Naals work in similar activity because it is
against the freedom of association, the freedom of slavery and forced labour. Hence, it is against the
constitution.
Abel de Smith wrote the constitution. He was neither a politician nor an attorney general. He
was the highest colossal authority at the time. Prior to the constitution, the English government gave
a model constitution- Westminster Model. The colonial office in England gave a model constitution to
Mauritius. Unlike the other countries, Mauritius resisted the constitution that was given. The people
rejected that constitution; it was amended and brought back to the colonial. It was rejected a second
time and finally the colonial office got desperate and went to somebody really authoritative Abel de
Smith.
When Abel came to Mauritius, he found himself struck in two emotions:

The sheer scene of beauty of Mauritius


A sense of pity because he foresaw that if this country was not saved, it would have the
same destiny as its national bird (the Dodo).

Abel had his reasons when he said that the country would meet the same destiny as the Dodo.
Economically Mauritius could not have survived because it depended on Sugar Cane only and the
island was a cyclonic one. The sugar sector was very erratic in sustaining the economy of the country.
It had survived because of the common wealth sugar agreement which ensured that whatever be the
price of sugar in the World Market, Mauritius would get a stable price. To be able to run the country,
the government had to rely on foreign aid.
Population-wise, the situation was equally alarming, politically- still more alarming. It was a
country without natural resource (for example, like African countries which had gold, minerals, oil),
Mauritius had none of that. Moreover, it was a multi-racial, multi-ethnic, and multi-lingual country.
It is thus that Abel de Smith made a pledge. So committed was he, that he wrote the best
constitution.
Section 1 of the constitution states as follows: Mauritius shall be a sovereign democratic state.
If there is any change that needs to be brought, it can only be made with the consent,
approval, approbations of the People because the constitution is not a document that can be changed
by just anybody, nor does it belong any party of the country it belongs to the People.
Section 1 is the core and cannot be changed at all if changes are to be made, will have to
through the People thus reverting back to the same situation as it was prior to independence.
Section 2 of the constitution says: This constitution shall be the supreme source of law of
Mauritius and any law inconsistent will it shall be void to the extent of unconstitutionality. In other
words, if there is any law which has been passed and which is against the constitution, one should not
discard the whole law one can keep the good part and discard the bad one.
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Scenario
Marriage Law Act Example
Section 1 says subject to section 2, every citizen in Mauritius shall marry a person of the opposite sex
out of free and informed consent.
Section 2 says, all bachelors who are parliamentarians shall be entitled to marry the beauty queens of
Mauritius.
Section 1 only should be retained. (Keeping the good part and discarding the bad one).

Chapter 2 of the constitution is almost a textual importation of the European Convention on


Human Rights which can take the fundamental freedoms and liberties. These fundamental freedoms
and liberties are as follows:
(1) Protection from slavery, hard labour and torture
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)

The freedom1 of expression


The freedom of movement
The freedom to own property
The freedom of association
The freedom of schooling
Equality of treatment under the law
Equality before the law
The right to an independent and impartial determination of your rights.

How to reconcile Conflicting Rights?


Section 3 of the constitution states that: the rights and freedoms are designed to ensure
that the enjoyment of those rights and freedom by any individual does not prejudice the rights and
freedom of others or the public interest. In other words, my right stop where another persons right
begins and his rights stop where mine begin. All this is subject to public interest.
Example
Restraint of Trade
Whether, X has any special knowledge by virtue of his employment which he will pass on to his firms
competitor. If yes, he is not to make use of that specialized knowledge.

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Freedom1: Freedom means the proper exercise of your liberties

The Various persons in the Legal System

Lawyer

Attorney
=does procedural
matters
Barrister
=appears in court
Notary
=manages
immovable
properties

An attorney does all the procedural work like drawing up plaints, serving the papers on parties, doing
the formal part of a case. However, he does not appear in court.
Notary carries out duties with respect to transfers of immovable properties and rights with respect to
immovable properties. The existence of the notary has got an institutional rationale. The principle is
as follows:
It is easy to know who the owner of a movable property is but it is very difficult to know who the
owner of an immovable property is. It is the notary who keeps track of who is the owner of an
immovable property and about the rights the owner has or does not have cover that property in point
of time. Notaries also do charters (hypothques) on rights over property.
Scenario
At your work, you receive a letter in your capacity as a manager from some correspondent who calls
himself Mr. Linguini. He informs that he is appearing for an employee who has just been dismissed
and he needs information from you as to the circumstances in which the employee was dismissed.
Question: what follow up would you advise your company or firm to do in the matter?
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The correspondent should first be licensed to represent a client, either in the list of barristers or
attorneys. The company should thus check the roll of practicing barristers.

Difference between Civil action, Criminal action and Constitutional action


Civil action has to prove that there was material and moral suffering or prejudice. A suffering like
somebodys wife has left him (lack of consortium).
Administrative law for a job lost. The fact is: a dean dismisses you- does he have the right? it is
against the law. It is the University that employed you- thus, action against irregular dismissal of an
employee.
CRIMINAL

CIVIL

ADMINISTRATIVE/CONSTITUTIONAL

Parties

State v/s Citizen

Citizen v/s Citizen

Basis of action

Breach of Criminal
Code

Breach of Civil Code

Remedies

Fine
Imprisonment
Community Service
Probation
Custodial
Non-Custodial

Damages
Certiorari Mandamus Habeas Corpus
Restitution
Injunction
Specific Performance
Etc

You had to do something


specific under a contract.

Citizen v/s State


Breach of the Constitution (law)

Certiorari is an order to bring up


the records so that the court can
examine, to see, whether the proper
procedure has been followed and
the proper decision taken.

Mandamus is an order such that everybody acts according to the law. Habeas Corpus is one of the
most fundamental guarantees of a democratic society. Habeas Corpus is an order by the court to
present someone who has been arrested by officials to the court. He has to be found and presented,
and must explain why that person was arrested.

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Applications to the Business Environment


Scenario 1
Assuming that Olaf has an interview and despite, he has good qualifications, he is not in the list of
successful candidates which he believes he should form part of. How does he prove that he was
treated unfairly?
All the papers are in the hand of the state. Olaf is suing the state. Mandamus is an order so all
papers should be presented to see the qualifications and how was the procedure for the interview
made.
Scenario 2
Mika has been running a business for some years now, when one morning he receives a notice from
the Data Protection Office informing that he has failed to register his business under the Data
Protection Act, thereby becoming liable for prosecution. The notice warns Mika that if within 14 days
from the date of the letter, the default persists; a criminal action will be instituted against him.
Mika can be his own lawyer by referring to the Supreme Court website and searching for the law.
Since law has to do with facts, he can refer to the arrangement of sections to assess the architectural
element.
Scenario 3
Winnie is the owner of a business, Safe Enterprise Co. Ltd, which has contracted out its cleaning
services to Perfect Co Ltd. One morning, Mrs. Miu Miu, one of the lady cleaners, sustains an electric
shock- luckily mild- from a live electric wire which was left exposed by No Risk ENM Co Ltd. The latter
is only an independent contractor company which had called to carry out some electrical maintenance
works on Winnies premises. Mr. Balenciaga, one of the drivers of Perfect Cleaning Ltd, in attempt to
assist Mrs. Miu Miu, slips on the floor which happened to be wet with the overnight rain, sustaining
an ankle injury which renders him unfit for work for two weeks and causes a lot of distress to him and
his family.
According to the Occupational Safety and Health Act (Health includes physical and mental health), the
employer has to ensure that the workers are safe. If there is any injury, the employer is bound to
repair the damage. If there is another company that comes to work at your company, then an injury
done by the company, you are still responsible for it. In other words, the employer keeps control of
his work place. The site is the responsibility of the original employer. There is also a duty on the
employee to look after his health and safety. Every risk that is present at the workplace should be
informed to employee by the employer.

General Comments on the Module


The module has been a really interesting one. I learned how to be my own lawyer, how to refer to
cases by surfing the Supreme Courts website to view similar cases as well as the actions taken in such
cases.
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