DAYAL S. v JUGNAUTH P. K.

& ORS

2021 SCJ 178

Record No. 119416

THE SUPREME COURT OF MAURITIUS

In the matter of:-

Surendra Dayal

Petitioner
v.

1. Pravind Kumar Jugnauth

2. Leela Devi Dookun Luchoomun
3. Yogida Sawmynaden

Respondents

In the presence of:-

1. Ashock Kumar Jugnauth

2. Kreepanandsing Bumma
3. The Electoral Commissioner
4. The Electoral Supervisory Commission
5. The Returning Officer of Constituency No.8,
Mrs Meenakshi Gayan-Jaulimsing
6. The Mauritius Broadcasting Corporation

Co-Respondents

-------------

RULING

This is a motion by (i) the respondents and (ii) co-respondent No.6 to amend
their respective pleas to an election petition challenging the election of the respondents
in the last general election held on 7 November 2019. The petitioner is objecting to the
motion. Co-respondents Nos.3 to 5 are abiding by the decision of the Court and have
offered submissions in law.
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The petitioner’s grounds of objection to the amendment of the respective pleas

of the respondents and co-respondent No.6 are more or less the same and are as
follows:

(a) the proposed amendments purport to retract express and tacit

admissions contained in the existing pleas;

(b) they amount to an abuse of process inasmuch as the respondents and

co-respondent No.6 are relying upon new facts which were known to
them and should have been raised at the outset;

(c) they seek to create a new cause of action at a late stage bringing in new
and irrelevant issues;

(d) they are coming late in the day without any justification and therefore
cannot and should not be condoned by the Court, particularly as we are
dealing with an election petition which is matter of public interest
requiring celerity; and

(e) they amount to a new plea altogether.

At the hearing, learned Counsel for the petitioner informed the Court that he was
not pressing the grounds that the proposed amendments (a) purport to retract express
and tacit admissions contained in the existing pleas; and (b) amount to an abuse of
process. Learned Counsel otherwise submitted as per the above grounds of objection
and laid emphasis on the fact that the present case is an election petition which is “a
special breed” requiring celerity.

On the other hand, learned Counsel for the respondents and co-respondent No.6
submitted as follows: the Court has a wide discretion in deciding whether or not to grant
a motion for amendment of a pleading. The motion for amendment has been made
before the trial and in due time. The Court’s perspective is to determine the real
question in controversy and is not there to sanction a litigant in the absence of bad faith.
The proposed amended pleas do not seek to raise a new defence and only give more
particulars of the defence already raised. The petitioner will not suffer any prejudice if
the motion for amendment is granted.
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We have duly considered the submissions of all learned Counsel in the light of
the facts and circumstances on record.

The law and the principles

With regard to the present motion, it is common ground that the relevant and
applicable provision of the law is rule 17 of the Supreme Court Rules 2000 (“the Rules”).
Rule 17(1) reads as follows:

“17. Amendments of pleadings

(1) The Master May grant the amendment of any pleading and
the Court may at the hearing of a case grant an amendment of any
pleadings, in such manner and on such terms as may be just and
reasonable, for the purpose of determining the real question in
controversy between the parties.”

Rule 13(1) of the Rules is also of relevance and reads as follows:

“13. Contents of pleadings

(1) Every pleading shall clearly and distinctly state all matters
of fact that are necessary to sustain the plaint, plea or counterclaim as the
case may be.”

As regards the principles governing the amendment of pleadings, learned

Counsel have referred us to numerous authorities, including Honourable Jagatsingh v
Honourable Boodhoo [1981 MR 357], Bonnelame v Curé [1991 MR 224],
Soobhany v Soobhany [1989 MR 191], Patel v Benessreesingh [2008 SCJ 106],
Sheeny Worldwide Limited v Aerospace Finance (Asia) Limited [2016 SCJ 491],
J C Bamford Excavators v Khadun Construction Ltd [2019 SCJ 138], Harel v
Societe Jean Claude Harel [1993 MR 251], Reekoye v Mauritius Union Assurance
Co Ltd [2004 SCJ 66], Cassim v United Bus Service Co Ltd [1988 MR 61],
Punjabi v Rajwani [2009 SCJ 76], Hemery v Ramlogan [2012 PRV 82], Bullen &
Leake & Jacob’s Precedents of Pleadings and Odgers’ Principles of Pleading and
Practice.

The principles which may be culled from the above authorities are as follows:
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(a) the guiding principle of cardinal importance is that, generally speaking,

amendments of pleadings ought to be made for the purpose of
determining the real question in controversy between the parties to any
proceedings or of correcting any defect or error in any proceedings;

(b) the Court has a wide discretion to grant a motion to amend a pleading;

(c) the Court will exercise such discretion judiciously taking into account,
inter alia, the nature and purpose of the proposed amendment, the
stage of the proceedings, any bad faith of the party moving for the
amendment and any likely prejudice to the other party;

(d) the Court will more readily grant an amendment to a pleading before
the trial has started than at the trial or at a later stage;

(e) nevertheless, an amendment to a pleading can be granted at any

stage of the proceedings, even at a late stage, if such amendment
would enable the Court to decide the real question in controversy;

(f) the Court is not here to punish a litigant for mistakes in the conduct of
his case which are not fraudulent or intended to overreach but to
decide the rights of the parties and the matters in controversy;

(g) an amendment of a pleading which gives particulars of the averments

of the pleading is permissible;

(h) there is no absolute prohibition from raising a new cause of action or

defence by way of an amendment; and

(i) if the proposed amendment is made mala fide, will cause undue delay,
or will unfairly prejudice the other party, is irrelevant or useless, or
would raise a merely technical point, leave to amend will be refused.

We bear in mind that the above principles governing the amendment of

pleadings are to be applied while duly paying heed to the fact that we are here dealing
with an election petition which is not like any other civil action and is a matter of great
public interest, where celerity is of the essence.
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The proposed amended plea of respondents

The proposed amended plea (“the PAP”) of the respondents is reproduced at

Annex I of this ruling. At the hearing, learned Counsel for the petitioner informed us that
the petitioner was no longer objecting to the amendments at paragraphs 1 to 6 of the
PAP. Rightly so, in our opinion, since the respondents are now thereby admitting
paragraph 2 of the election petition (“the petition”), which was previously denied, and the
other amendments are minor and relate to a matter of form. We, accordingly, allow the
amendments contained in paragraphs 1 to 6 of the PAP.

Turning to the other proposed amendments, it is averred in the petition that, prior
to and since the dissolution of the National Assembly and the issue of the writ of
election on 6 October 2019, the respondents and their agents and persons acting on
their behalf with their consent and knowledge had indulged in bribery, treating, undue
influence and other illegal practices contrary to sections 45(1)(a)(ii), 64(1)(a)(c)(d)(f)(g),
(2)(a) and/or 65(1) of the Representation of the People Act (“the Act”) in order to
corruptly procure, promote and/or influence the respondents’ election in constituency
No.8.

Paragraph 16 of the petition sets out the particulars of the alleged acts of bribery,
treating and undue influence. Paragraph 7 of the respondents’ original plea was a
general denial of paragraph 16(I)(a) to (o) of the petition. They now seek to replace the
said paragraph 7 by paragraphs 8 (sic) to 23 of the PAP.

Paragraph 16(I)(a) to (o) of the petition comes under the heading “I. Substantial
increase in basic retirement pension”. It avers in essence as follows: there was a
public announcement on 1 October 2019 by respondent No.1, who was the Prime
Minister and also the Minister of Finance, at a very targeted gathering of old-age
pensioners at the Swami Vivekananda International Convention Centre (“the SVICC”)
that there would be an increase in basic retirement pension during his (eventual) next
mandate as Prime Minister, which was substantially more than the increase already
provided for in his 2019-2020 budget speech and in the Appropriation (2019-2020)
Act 2019. The respondents were striking a deal with old-age pensioners in return for
their votes. The proposed increased payment was made deliberately and purposely
engineered with a corrupt motive, designed to procure votes, in order to ensure the
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respondents’ election. This amounted to an act of bribery which benefitted the

respondents who stood together as candidates in constituency No.8.
Paragraphs 8 to 23 of the respondents’ PAP purport to be a reply to
paragraph 16(I)(a) to (o) of the petition. The respondents now admit paragraph 16 (I)(a)
and (b) of the petition. In the PAP, the proposed averments are to the following effect:
the increase in basic retirement pension was part of the electoral manifesto of an
alliance of parties, to which the respondents belonged, both for the 2014 and 2019
general elections. It was one of the prime subjects of the last electoral campaign in
2019. As regards the gathering of old-age pensioners at the SVICC, on 1 October of
every year since 1990, activities are organised by the Ministry of Social Security to
celebrate the International Day of Older Persons, designated as such by the United
Nations. Such activities would entail the provision of transport, food and drinks.
Respondent No.1 was invited as the guest of honour in his capacity as Prime Minister to
the gathering at the SVICC on 1 October 2019. As regards the increase in basic
retirement pension provided for in the Appropriation (2019-2020) Act 2019, the
Constitution allows for a new or supplementary expenditure. The respondents deny
having committed any bribery, treating, undue influence or illegal practice.

As can be seen from the above, paragraphs 8 to 23 of the respondents’ PAP

now contain partial admissions and seek to put forward a detailed version of the
respondents to the averments contained in paragraph 16(I) (a) to (o) of the petition,
whereas they have made a general denial in their original plea. The new partial
admissions can only help in narrowing down issues and be to the petitioner’s benefit.

We find that paragraphs 8 to 23 of the respondents’ PAP contain averments of

fact and law which relate to the real issue in controversy between the parties, namely
whether the proposed increase in basic retirement pension amounted to an act of
bribery by the respondents of old age pensioners in return for their votes. True it is that
the facts now being averred in the PAP were known or must have been known to the
respondents at the time they filed their original plea. However, as stated above, the
Court is not here to punish a litigant for mistakes in the conduct of his case but to decide
the rights of the parties and the matters in controversy. We may here aptly refer to the
often quoted principle enunciated by Bowen L.J. in Cropper v Smith [1884] 26
Ch. D 700:

“I think it is a well established principle that the object of courts is to

decide the rights of the parties, and not to punish them for mistakes they
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make in the conduct of their cases by deciding otherwise than in

accordance with their rights… I know of no kind of error or mistake which,
if not fraudulent or intended to overreach, the court ought not to correct,
if it can be done without injustice to the other party. Courts do not exist
for the sake of discipline, but for the sake of deciding matters in
controversy, and I do not regard such amendment as a matter of favour
or of grace… It seems to me that as soon as it appears that the way in
which a party has framed his case will not lead to a decision of the real
matter in controversy, it is as much a matter of right on his part to have it
corrected, if it can be done without injustice, as anything else in the case
is a matter of right."

Moreover, every pleading must clearly and distinctly state all matters of fact
which are necessary to sustain a plaint, plea or counterclaim (rule 13(1) (supra)).
Where a defendant wishes to raise a specific defence or an affirmative case in defence
to a claim, there is a need for the defendant to plead accordingly. This basic principle of
pleading was reiterated in Cassim v United Bus Service Co Ltd [1988 MR 61] where
the Court referred, with approval, to the Supreme Court Practice 1982 Vol. 1,
Order 18, rule 8 which provides as follows:

“This Rule enforces one of the cardinal principles of the present system
of pleading, viz. that every defence or reply must plead specifically any
matter which makes the claim or defence in the preceding pleading not
maintainable or which might take the opposite party by surprise or raises
issues of fact not arising out of the preceding pleading. Put shortly,
wherever a party has a special ground of defence or raises an affirmative
case to destroy a claim or defence, as the case may be, he must
specifically plead the matter he relies on for such purpose.
………

It often is not enough for a party to deny an allegation in his opponent's

pleading; he must go further and dispute its validity in law or set up some
affirmative case of his own in answer to it. It will not serve his turn merely
to traverse the allegation; he must confess and avoid it.”

We are of the view that the respondents are, in paragraphs 8 to 23 of the PAP,
pleading a specific defence and setting up an affirmative case with detailed particulars
in reply to the petitioner’s claim that they have bribed old age pensioners in return for
their votes by proposing an increase in basic retirement pension. The other parties
are being informed of the case for the respondents on this issue so that they are not
taken by surprise at the trial. It will be in the interests of justice to allow the
respondents to amend their plea as per paragraphs 8 to 23 of the PAP as it will no
doubt help to identify and narrow down issues and to resolve the real issue in
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controversy.

It is appropriate here to refer to the function of pleadings from Odgers’

Principles of Pleading and Practice in Civil Actions in the High Court of Justice,
Twenty-Second Edition (1981), at pages 88 and 146:

“The function of pleadings then is to ascertain with precision the matters on

which the parties differ and the points on which they agree; and thus to
arrive at certain clear issues on which both parties desire a judicial
decision. In order to attain this object, it is necessary that the pleadings
interchanged between the parties should be conducted according to
certain fixed rules,.... The main purpose of these rules is to compel each
party to state clearly and intelligibly the material facts on which he relies,
omitting everything immaterial, and then to insist on his opponent frankly
admitting or explicitly denying every material matter alleged against him.
By this method they must speedily arrive at an issue. Neither party need
disclose in his pleading the evidence by which he proposes to establish his
case at the trial. But each must give his opponent a sufficient outline of his
case.
………

…. though it is in general unnecessary to allege a matter of law, yet it is

sometimes convenient to do so, and it may make the statements of fact
more intelligible and show their connection with each other. There is no
harm in this, if the facts are also stated on which the proposition of law is
based.”

We are aware that we are dealing with an election petition, where celerity is of
the essence. The chronology of events shows that, in keeping with this requirement for
celerity, the respondents filed their original plea on 29 December 2020, i.e. during the
court vacation. They moved for amendment of their plea by way of letter dated
1 March 2021, i.e. 2 months later. In a letter dated the same day, the petitioner’s
attorney objected to the PAP. On 5 March 2021, the Court fixed the case for arguments
on 16 and 17 March 2021 on the respondents’ motion to amend their plea, whereas the
case had originally been fixed for merits to 16 March 2021 (de die in diem). The case
could not be called on these latter dates due to the national sanitary confinement
imposed on account of the COVID-19 pandemic.

On 6 May 2021, the case was called anew and co-respondent No.6 moved to file
a second amended plea. The case was fixed for arguments on the motion of the
respondents and co-respondent No.6 to amend their respective pleas, to which the
petitioner objected, on 17 and 18 May 2021. On 17 May 2021, learned Counsel for the
petitioner raised a preliminary objection on the procedure adopted by the respondents
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and co-respondent No.6 for amending their respective pleas. The Court heard
arguments on the preliminary objection on the same day and delivered an interlocutory
judgment on the next day. The matter was then fixed for arguments on the motion to
amend the pleas to 31 May and 1 June 2021.

The above preliminary issues have certainly caused some delay, which could
have been dispensed with given that this is an election petition. We, however, note that
the respondents’ motion to amend their plea was made some 2 months after filing their
original plea, which cannot be said to be an unconscionable delay. Nor is there any
allegation that they are acting in bad faith or fraudulently. Moreover, the trial has not yet
started and stands fixed to 28 June 2021 for merits (de die in diem). Evidence has not
yet been adduced and witnesses have not been called. It is well settled that the Court
will more readily grant an amendment to a pleading before trial than at the trial. If need
be, the parties will be able to exchange further pleadings in the meantime.

In the light of the above facts and circumstances, we find that we may exercise
our discretion in favour of allowing the amendments prayed for at paragraphs 8 to 23 of
the respondents’ PAP. We are of the view that the amendments may be granted
without causing any prejudice to the petitioner.

We shall now turn to paragraphs 24 to 28 of the respondents’ PAP. These

paragraphs seek to replace paragraph 8 of their original plea which contains a general
denial of paragraph 16(II)(a) to (f) of the petition.

Paragraph 16(II)(a) to (f) of the petition avers as follows: there was an

announcement by respondent No.1 of an accelerated implementation of the Pay
Research Bureau (“PRB”) Report to January 2020 in order to corruptly induce voters
working in the public sector. The release of the PRB Report was scheduled for
October 2020 and its recommendations would be effective as from 1 January 2021. On
10 June 2019, respondent No.1 indicated in his 2019-2020 budget speech that, pending
the publication of the PRB Report, an interim monthly allowance of Rs.1000 would be
paid to all public officers as from January 2020.

On 23 October 2019, after the dissolution of the National Assembly on

6 October 2019, respondent No.1 announced that the PRB Report would be effective as
from January 2020 itself. No provision was made for such a measure in the
Appropriation (2019-2020) Act 2019. Respondent No.1 was inducing public sector
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employees to vote for him and the other applicants in constituency No.8. There was no
cogent argument or urgency put forward by respondent No.1 to justify this promise to
disburse additional funds in favour of more than 80,000 public sector employees who
represent over 10% of the whole voting population. This was clearly a deliberate act of
exchanging valuable consideration for the votes of public officers, thereby amounting to
bribery.

In paragraphs 24 to 28 of the respondents’ PAP, they now admit paragraph

16(II)(a), (b) and (c) of the petition. They also aver as follows: the accelerated
implementation of the PRB Report was one of 15 key measures forming part of the
electoral manifesto of the alliance of which the respondents formed part. The date of
publication or implementation of the PRB Report is often altered. The Constitution
allows for appropriation or supplementary appropriation for Government expenditure.
The respondents deny having induced public sector employees to vote for them and
having committed any bribery, treating or undue influence.

Paragraphs 24 to 28 of the respondents’ PAP, therefore, now contain partial

admissions and purport to be a detailed reply to the averments contained in
paragraph 16(II) (a) to (f) of the petition, whereas they have made a general denial in
their original plea. As already stated above, the partial admissions can only help in
narrowing down issues and be to the petitioner’s benefit.

On the facts and circumstances and the same reasoning applicable to

paragraphs 8 to 23 of the respondents’ PAP, we find that the amendments prayed for at
paragraphs 24 to 28 of the PAP may be allowed. The latter paragraphs contain
averments of fact and law which relate to the real issue in controversy between the
parties, namely whether the proposed accelerated implementation of the PRB Report by
respondent No.1 amounted to a bribery of public sector employees to induce them to
vote for the respondents. As stated above, the Court is not here to punish a litigant for
mistakes in the conduct of his case but to decide the rights of the parties and the
matters in controversy.

The respondents are now seeking to plead a specific defence and set up an
affirmative case with detailed particulars in reply to the petitioner’s claim. It will be in the
interests of justice to allow the respondents to amend their plea as it will no doubt help
to identify and narrow down issues and to resolve the real issue in controversy. The
delay in making the motion for amendment cannot be said to be unconscionable. There
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is no allegation that the respondents are acting in bad faith or fraudulently. Moreover,
as already indicated, the trial has not yet started and stands fixed to 28 June 2021 for
merits (de die in diem). Evidence has not yet been adduced and witnesses have not
been called. If need be, the parties may exchange further pleadings in the meantime.
We are also of the view that the amendments will not cause any prejudice to the
petitioner.

We, accordingly, grant the respondents’ motion to amend their plea as per
paragraphs 24 to 28 of the PAP.

We shall now consider paragraphs 29 to 36 of the respondents’ PAP. These

paragraphs seek to replace paragraph 9 of their original plea which contains a general
denial of paragraph 16(III)(a) to (f) of the petition.

Paragraph 16(III)(a) to (f) of the petition concerns in essence an alleged promise

by respondent No.1 to reimburse policy holders of the “Super Cash Back Gold” scheme
and investors in Bramer Asset Management Ltd. The promise made by respondent
No.1 was not a decision made and approved by Cabinet but in fact contradicted
Government policy and decisions, which constituted a deliberate act of bribery, done for
a corrupt purpose to induce voters to vote for respondent No.1 and other candidates of
l’Alliance Morisien.

Paragraphs 29 to 36 of the respondents’ PAP make factual averments in reply to

paragraph 16(III)(a) to (f) of the petition and aim more at qualifying or clarifying the
petitioner’s averments than denying them. They also inform the other parties of the
case for the respondents.

For the same reasons as those given to allow the amendments as per
paragraphs 8 to 23 and 24 to 28 of the respondents’ PAP, we shall allow the
amendments contained in paragraphs 29 to 36 of the respondents’ PAP.

We now turn to paragraphs 37 to 39 of the respondents’ PAP which seek to

replace paragraph 10 of their original plea. The latter paragraph was a general denial of
paragraph 16(IV)(a) and (b) of the petition.

Paragraph 16(IV)(a) and (b) of the petition avers that there was a public
announcement of the payment of a one-off performance bonus to police officers,
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firemen and prison officers. Such payment was neither provided for in the Appropriation
(2019-2020) Act 2019 nor mentioned in the budget speech 2019-2020. The only aim of
such a promise was to induce members of disciplined forces and their families to vote
for l’Alliance Morisien of respondent No.1 by the use of public funds.

Paragraphs 37 to 39 of the respondents’ PAP aver that the payment of a bonus

was one of the measures contained in the electoral manifesto of l’Alliance Morisien and
similar undertakings were given by l’Alliance Nationale. Otherwise, the respondents
deny inducing any person to vote for them and aver that any appropriation has been
regularly done.

We are of the view that the proposed amendments at paragraphs 37 to 39 of the

respondents’ PAP are a direct reply to paragraph 16(IV)(a) and (b) of the petition. For
the same reasons as for the above preceding paragraphs of the respondents’ PAP, we
have no difficulty in allowing those proposed amendments.

We shall now consider paragraphs 40 to 44 of the respondents’ PAP. They seek

to replace paragraph 11 of their original plea. The latter paragraph was a general denial
of paragraph 16(V)(a) to (d) of the petition.

Paragraph 16(V)(a) to (d) of the petition avers as follows: there was distribution
of food and refreshments to old-age pensioners at the gathering held at the SVICC on
1 October 2019. The gathering was allegedly sponsored by the Ministry of Social
Security but the whole exercise was in fact engineered to allow respondent No.1, as
Prime Minister, to announce the planned increase in basic retirement pension. The
mass feeding of potential voters was tantamount to treating and contrary to
section 64(2)(a) of the Act.

Paragraphs 40 to 44 of the respondents’ PAP are to the effect that the event was
organised by the Ministry of Social Security and that the respondents were guests and
not involved in its organisation and the distribution of food. The respondents deny
having committed an act of treating.

As is apparent, the said paragraphs 40 to 44 are a direct and relevant reply to

paragraph 16(V)(a) to (d) of the petition. They put forward the respondents’ case to the
petitioner’s contention that they have “treated” old age pensioners. We shall allow the
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amendments contained in paragraphs 40 to 44 of the respondents” PAP on the same

basis as for paragraphs 8 to 39 of the PAP.

Paragraph 12 of the respondents’ original plea was a general denial of

paragraph 16(Vl)(a) to (f) of the petition. Paragraphs 45 to 48 of the respondents’ PAP
seek to amend paragraph 12 of their original plea.

Paragraph 16(Vl)(a) to (f) of the petition centres on the role of co-respondent

No.6, i.e. the Mauritius Broadcasting Corporation (“the MBC”), which falls under the
aegis of the Prime Minister’s Office, before and during the general election. It is averred
that the MBC became the private propaganda machine of the respondents in order to
unduly influence voters of all constituencies in general, including voters in
constituency No.8. The MBC continuously made biased reports in favour of the
respondents so much so that the Electoral Supervisory Commission (co-respondent
No.4) had to call the MBC to order.

Nevertheless, on 5 November 2019, i.e. 2 days before the general election, the
MBC allocated prime airtime during its French news bulletin to Mr Dulthumun who
benefitted from the patronage of respondent No.1 and made a direct communal appeal
to the Hindu community in an attempt to create a divide between the Hindu and Muslim
communities, thereby deflecting the votes of the Hindus in favour of l’Alliance Morisien.
On the other hand, the MBC refused airtime to Mr Ramdhean, president of the Mauritius
Sanathan Dharma Temple Federation, to rebut the allegations of Mr Dulthumun.

It is the petitioner’s contention that the misuse of the MBC, with the blessing and
concurrence of respondent No.1, amounted to undue influence, thereby affecting the
integrity of the general election to the detriment of the petitioner.

Paragraphs 45 to 48 of the respondents’ PAP aver as follows: although the MBC

falls under the portfolio of the Prime Minister, it is a statutory corporation with its own
board and decision making body under the day to day management of the Director
General. The respondents have no control over the reports or news items of the MBC
and deny being responsible for any alleged act of, or matter broadcast by, the MBC.

The above paragraphs 45 to 48 are clearly in reply to the petitioner’s allegations

regarding the respondents’ role and influence quoad the MBC. They are relevant and
will help in determining the real issue in controversy, namely the alleged abusive use of
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the MBC by the respondents. The amendments contained in those paragraphs are
allowed for the same reasons pertaining to the other amendments of the respondents’
plea.
The remaining paragraphs of the respondents’ PAP (50 to 54) pose no difficulty
as they are merely a repetition of the averments and denials already contained in the
original plea and a correction of a few typos. They are accordingly allowed.

The second proposed amended plea of co-respondent No.6

Co-respondent No.6 (the MBC) had already been granted leave to amend its
plea due to the omission of one of the parties in the heading of the plea. It now seeks
leave to amend its plea for a second time. Its second proposed amended plea dated
6 May 2021 (“the 2nd PAP”) is reproduced at Annex II to this ruling.

Co-respondent No.6 is in essence seeking to amend the paragraphs of its plea

which relate to its reply to the averments made quoad it in the petition, namely at
paragraphs 16(I)(g) and 16(VI)(a) to (f) of the petition.

As already stated above, paragraph 16(Vl)(a) to (f) of the petition centres on the
role of co-respondent No.6 before and during the general election and its alleged
misuse by the respondents. The essential averments of paragraph 16(Vl)(a) to (f) have
already been set out above.

At paragraphs 7 to 12 of its amended plea, co-respondent No.6 has denied each

sub paragraph of paragraph 16(Vl)(a) to (f) individually and made certain averments. In
the corresponding paragraphs 7 to 12 of the 2nd PAP, co-respondent No.6 now seeks to
make additional and more detailed averments.

In essence, the additional averments are as follows: co-respondent No.6 is a

statutory body with its own board and Director-General and respondent No.1, either by
himself or through alleged appointees, did not interfere with the contents of its news
bulletins before or during the general election. Co-respondent No.6 has always ensured
that its news bulletins are presented in an impartial manner. It requested the Labour
Party, the leading member of l’Alliance Nationale, to submit the date and time of its
political meetings and congresses for coverage but did not receive any reply. In fact,
Mr Assirvaden, president of the Labour Party, had adopted a hostile and threatening
attitude towards co-respondent No.6 in political meetings. Moreover, in relation to the
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communiqué of co-respondent No.4, co-respondent No.6 had informed

co-respondent No.4 that it would consider any request of the complainants for a right of
reply but did not receive any such request.
With regard to Mr Dulthumun, co-respondent No.6 allocated him prime airtime as
it was a matter of public interest. Mr Dulthumun did not make any communal appeal
and did not try to create a divide between the Hindu and Muslim communities.
Co-respondent No.6 did attend a press conference of Mr Ramdhean, which was of a
political nature, on the eve of the general election. Co-respondent No.6 would, however,
have committed a breach of the guidelines issued by the Independent Broadcasting
Authority if it had broadcasted the press conference of Mr Ramdhean in its prime time
news bulletins on the eve of the general election.

We find that paragraphs 7 to 12 of the 2nd PAP of co-respondent No.6 contain

additional and more detailed averments of fact in reply to the averments made in
paragraph 16(Vl)(a) to (f) of the petition. They put forward co-respondent No.6’s own
version of its role and behaviour before and during the last general election. We bear in
mind that the guiding principle of cardinal importance is that, generally speaking,
amendments of pleadings ought to be made for the purpose of determining the real
question in controversy between the parties. We are of the view that the proposed
amendments at paragraphs 7 to 12 of the 2nd PAP will indeed help in determining the
real issue in controversy, namely whether the respondents made an abusive use of
co-respondent No.6 in order to unduly influence voters of all constituencies in the last
general election.

True it is that co-respondent No.6 left it rather late to move to amend its plea a
second time on 6 May 2021, taking into account that we are here dealing with an
election petition requiring celerity. We, however, note that the motion for amendment
was made on the very day there was a substitution of attorney and appearance of a new
leading Counsel for co-respondent No.6. Moreover, as stated above, the Courts are not
here to punish a litigant for mistakes in the conduct of his case but to decide the rights
of the parties and the matters in controversy. Co-respondent No.6 is in fact seeking to
give further particulars of its defence, which are not inconsistent with its original plea.

There is no allegation that the motion of co-respondent No.6 to amend its plea is
of bad faith or fraudulent. As already stated, the trial has not yet started and stands
fixed to 28 June 2021 for merits (de die in diem). Evidence has not yet been adduced
and witnesses have not yet been heard. The parties will have time to exchange further
 16

pleadings, if need be. We find that the amendments prayed for by co-respondent No.6
will not cause any prejudice to the petitioner.

In these circumstances, it will be in the interests of justice to allow

co-respondent No.6 to amend its plea as it will no doubt help to identify and narrow
down issues and to resolve the real issue in controversy. We, accordingly, allow
co-respondent No.6 to amend its plea as per paragraphs 7 to 12 of the 2nd PAP.

With regard to paragraph 16(I)(g) of the petition, co-respondent No.6 takes issue
with the averment that it “trumpeted” the announcement of increase in basic retirement
pension by respondent No.1 at the SVICC. At paragraph 4 of the 2nd PAP,
co-respondent No.6 now avers that the said announcement was a matter of public
interest and was widely broadcast by public and private radios and published in
newspapers and on social media platforms.

For the same reasons applicable to paragraphs 7 to 12 of the 2nd PAP, we have
no difficulty in allowing the amendments contained in paragraph 4 of the 2nd PAP, the
more so that they are in fact only giving further and better particulars of the version of
co-respondent No.6.

Final conclusions

It goes without saying that we are not, at this juncture, making any determination
regarding the merits of the case for the petitioner, the respondents or
co-respondent No.6. It will be incumbent on the parties to establish the averments in
their pleadings and on the Court to determine the real question in controversy in the
light of the evidence adduced by all the parties, the real question being whether the
election of the respondents should be avoided by reason of bribery, treating, undue
influence or illegal practice.

The proposed amendments contained in the 2 PAPs have the merit of pleading a
specific defence or an affirmative case in defence to the petition or giving further and
better particulars, which are not inconsistent with the original pleas. They will help in
narrowing down issues and in determining the real issues in controversy, so that the
parties know the case that they have to meet.
 17

For the above reasons, we overrule the objection of the petitioner and we shall
exercise our discretion to allow the respondents and co-respondent No.6 to amend their
respective pleas. The matter will be mentioned on 15 June 2021 at 10.00 a.m. for:

(i) the respondents to file an amended plea as per their PAP dated
1 March 2021;

(ii) co-respondent No.6 to file a second amended plea as per its 2nd PAP
dated 6 May 2021; and

(iii) the parties, if need be, to exchange further pleadings, bearing in mind
that there is a need for celerity and that the case stands fixed to
28 June 2021 for merits (de die in diem).

D. Chan Kan Cheong

Judge

K. D. Gunesh-Balaghee
Judge
8 June 2021

-------------

Judgment delivered by Hon. D. Chan Kan Cheong, Judge

For Petitioner : Mr A. O. Jankee, Attorney-at-Law

Mr G. Glover, Senior Counsel together
with Mr N. Ramburn, Senior Counsel

For Respondents Nos. 1, 2 & 3 : Mrs S.Sonah Ori, Attorney-at-Law

Mr R. Chetty, Senior Counsel together
With Mr E. Ribot, Senior Counsel

For Co-Respondents Nos. 3 & 5 : Ms V. Nirsimloo, Chief State Attorney

Ms O. Ombrasine, Principal State
Counsel

For Co-Respondent No. 4 : Mr A. K. Rajah, Senior Attorney

Mr R. Pursem, Senior Counsel together
with Mr A. Moollan, Senior Counsel and
Mr A. Adamjee, of Counsel
 18

For Co-Respondent No. 6 : Mr M. Mardemootoo, Senior Attorney

Mr R. Gulbul, of Counsel together with
Mr M. Ajodah, of Counsel
 19

ANNEX I

PROPOSED AMENDED PLEA OF RESPONDENTS NOS. 1, 2 AND 3

1. The Respondents Nos. 1, 2 and 3 admit the contents of paragraphs1 and

2 of the Petition

2. The Respondents No. 1, 2 and 3 deny the contents of paragraph 2 and

put the Petitioner to the proof thereof.

3. The Respondents Nos. 1, 2 and 3 admit the contents of paragraphs 3, 4

and 5 and aver that as regards paragraph 3 of the Petition, the party
alliance known as "L'Alliance Morisien" was also composed of the
"Mouvement Patriotique" and the “Plateforme Militante”.

4. The Respondents Nos. 1, 2 and 3 admit the contents of paragraphs 6, 7,

8, 9 and 10 of the Petition.

5. The Respondents Nos. 1, 2 and 3 admit the contents of Paragraphs 11,

12, 13 and 14 of the Petition.

6. Save and except as admitted, the Respondents Nos. 1, 2 and 3 deny

the contents of paragraphs 15, the contents of paragraph 16 and the and
16 as well as the subparagraphs of paragraph 16 of the Petition and
put the Petitioner to the proof thereof.

BASIC RETIREMENT PENSION

7. The Respondents No.1, 2 and 3 deny Paragraph 16 (I) (a), (b), (c), (d), (e),
(f), (g), (h), (i), (j), (k), (l), (m), (n) and (o) and put the Petitioner to the
proof thereof.

8. Save and except that there no initial announcement but a budget

 20

proposition, the Respondents Nos. 1, 2 and 3 admit sub paragraphs

16(I)(a) and (b) of the Petition and aver that during the 2014 electoral
campaign, the Alliance Lepep composed of the Mouvement
Socialiste Militant, the Parti Mauricien Social Democrate and the
Muvman Liberater advocated, in their electoral manifesto, an
increase in pension benefits to ensure a better standard of living to
the relevant beneficiaries, particularly the elderly section of the
population. The then political alliance composed of the Labour Party
and the Mouvement Militant Mauricien campaigned against this
increase.

9. Save and except that provision was made for payments of Basic
Retirement Pensions with reference to the Government Programme,
the Respondents Nos 1, 2 and 3 deny sub paragraph 16 (1) (c) of the
Petition and aver that in Law a new expenditure can be provided for
and an expenditure can be increased.

10. The Respondents Nos 1, 2 and 3 aver that following the advent of the
Covid-19 pandemic upon analysis of its economic consequences,
Government has decided to suspend temporarily the payments to
compensate increase in inflation for relevant beneficiaries, including
pensioners.

11. The Respondents Nos 1, 2 and 3 deny sub paragraphs 16 (I) (d) and
(e) of the Petition and aver that:

a) In the year 1990, the United Nations designated the 1st of

October as the International Day of Older Persons (the
“International Day”) and invited Member States to organise
appropriate activities to mark the event;

b) from 1990 itself, the Permanent Secretary of the Ministry of

Social Security has been tasked with the responsibility to
organise activities to celebrate the International Day of Older
 21

Persons. From 1990 to 2000 the International Day was

celebrated in various regions of Mauritius. From 2000 the
International Day became a national celebration with a public
gathering to mark the occasion, where the necessary
amenities including transport, food and drinks, as the case
may be, are provided for; and

c) the International Day is also celebrated by other institutions.

12. Save and except that the Respondent No.1 was invited as the guest
of honour for that event in his capacity as Prime Minister, the
Respondents Nos 1, 2 and 3 deny sub paragraph 16 (I) (f) of the
Petition, and aver that the Respondent No 1 addressed the general
welfare of the older population, the achievements of the government
of the day and the measures that he would recommend for
implementation upon re-election to sustain the enhancement of the
standard and quality of living of the elderly.

13. The Respondents Nos 1, 2 and 3 deny : (a) inducing old age
pensioners to vote for them, (b) preying mercilessly and cynically on
the minds of old age pensioners and (c) tainting the electoral
process.

14. In answer to the averments contained in sub paragraph 16 (I) (g) of

the Petition the Respondents Nos 1, 2 and 3 state that they acted
properly and are not responsible how any media chooses to report
public matters. The Respondents Nos 1, 2 and 3 deny any
impropriety and aver that:

(a) the event did receive wide publicity as is the case every year
for that occasion;

(b) the increase in Basic Retirement Pension formed part of

electoral campaign, programme and manifesto of the Alliance
 22

Morisien for the General Elections 2019 in pursuance of the

commitment of the Alliance Lepep taken since 2014. The 2019
electoral manifesto, printed and bound in a booklet, was
distributed across the country and was shared with the media;

(c) Basic Retirement Pension was one of the prime subjects of

the electoral campaign. The Alliance Nationale did express its
views on the funding of payment and increase of the Basic
Retirement Pension;

(d) during the electoral campaign, it was up to each elector to

reach a conclusion as to the different programmes presented
and undertakings given by the various competing parties so
as to finally determine for which candidates to vote; and

(e) after the 2019 elections, the Alliance Morisien honoured and is
still honouring its commitments made through its electoral
manifesto by implementing the undertakings contained in the
said electoral manifesto concerning payment of pensions and
other social benefits, subject to the imperatives caused by the
Covid 19 pandemic.

15. The Respondents Nos 1, 2 and 3 deny sub paragraph 16 (I) (h) of the
Petition and put the Petitioner to the proof thereof. The Government
Information Service has the duty of informing the public of matters
and measures of importance.

16. Save and except that the Honourable Deputy Prime Minister
announced an increase in the Basic Retirement Pension to the sum
of Rs. 9,000, the Respondents Nos 1, 2 and 3 deny that with respect
to sub paragraph 16 (I) (i), there was any act of bribery, treating,
undue influence or illegal practice contrary to Law in the statement
of the Honourable Deputy Prime Minister.
 23

17. The Respondents Nos 1, 2 and 3 deny that the averments contained
in sub paragraph 16(I) (j) of the Petition amount to bribery, treating,
undue influence or illegal practice contrary to Law.

18. The Respondents Nos 1, 2 and 3 deny the averments of sub

paragraph 16 (I) (k) of the Petition and aver that:

(a) prior to 2014, pension benefits were inadequate;

(b) During the electoral campaign leading to the elections of

December 2014, the Alliance Lepep propounded its measure
to increase these pension benefits;

(c) the electoral manifesto of the Alliance Morisien for the 2019
elections is an extension of that proposed measure in 2014
and catered for a betterment of other allowances; and

(d) there were no instances of bribery and or treating.

19. The Respondents Nos 1, 2 and 3 deny the averments of sub

paragraph 16 (I) (l) of the Petition and aver that

(a) if the word "pocket" used therein implies the obtention of a

benefit to which the beneficiaries were not entitled, then the
Respondents Nos 1, 2 and 3 state that the object of such a
social programme was to empower people to meet the needs
that old age and precarious situation entail, with dignity;

(b) the measure is an extension of the measure propounded in

December 2014 by the Alliance Lepep concerning what is
commonly known as old age pension; and

(c) there are no instances of bribery and or corruption.

20. Save and except that the Respondent No 1 made a statement in the
National Assembly on the 21st of November 2019 concerning
 24

measures pertaining to pensions and other allowances, the

Respondents Nos 1, 2 and 3 deny sub paragraph 16 (I) (m) of the
Petition and in particular that such statement connotes or
acknowledges in any manner whatsoever bribery, treating, undue
influence and or illegal practice.

21. Save that it is admitted that that Mr Prem Seebaruth was the
President of the Senior Citizens Council and that he gave an
interview to l'express, the Respondents Nos 1, 2 and 3 deny the
averments of sub paragraph 16 (I) (n) of the Petition. Mr Prem
Seebaruth stated in his interview to l'express amongst others that
"Nous, les personnes âgées, sommes assez intelligentes. Personne
ne peut nous acheter. Je suis triste d'entendre des gens dire que
nous sommes des vendus de la politique. Ce n'est pas vrai. Cela m'a
causé des préjudices quand on m'a dit que je vais voter ainsi. Je ne
peux vendre mon âme ni ma conscience".

22. The Respondents Nos 1, 2 and 3 deny the averments of sub

paragraph 16 (I) (o) of the Petition. The Respondents No 1 denies
any act of bribery and or abuse of position. The Respondents Nos 2
and 3 deny benefitting from any act of alleged bribery and or alleged
abuse of position, which alleged act of bribery and or alleged abuse
never existed.

23. The Respondents Nos 1, 2 and 3 aver that the Constitution allows for
the appropriation and or supplementary appropriation for the
expenditure of any economic and or financial measure that the
Government of the Day and or the House regularly adopts and or
approves. There is no limitation in terms of calendar for such
appropriation and or supplementary appropriation.
 25

PRB REPORT

8. The Respondents No.1, 2 and 3 deny Paragraph 16(II) (a), (b), (c), (d), (e),
(f) and put the Petitioner to the proof thereof.

24. The Respondents No. 1, 2 and 3 admit paragraph 16 (II) (a), (b), (c) of
the Petition.

25. In answer to the averments of sub paragraphs 16 (II) (d) of the

Petition, the Respondents Nos 1, 2 and 3 aver that:

(a) on the 23rd of October 2019, the Respondent no. 1 announced

a series of fifteen key measures which would form part of the
electoral manifesto of the Alliance Morisien in the context of
the forthcoming elections;

(b) one of these measures was that the next PRB report "prendra
effet" as from January 2020 instead of January 2021;

(c) this is not the first time that the date of publication and/or the
effective date of the PRB report and/or the date of applicability
of the PRB report is altered;

(d) the delay to publish the PRB report every five years is often
not complied with; and

(e) proposals contained in the electoral manifesto of an elected

formation and which are contained in the Government
Programme read out in the National Assembly are meant to be
implemented, ceteris paribus.

26. In further answer to the averments of sub paragraph 16 (II) (d) of the
Petition the Respondents Nos 1, 2 and 3 deny taking any person by
surprise. They further deny any inducement towards more than 80
000 public sector employees in Mauritius and public sector
 26

employees who are voters in Constituency No 8.

27. The Respondents Nos. 1, 2 and 3 deny the averments of sub

paragraph 16 (II) (e) of the Petition and aver that :

(a) the electoral manifesto of the Alliance Morisien contained its

proposals for the PRB benefits and payment;

(b) there was no volte face and there was no inducement or

influence towards public employees to vote for any candidate
of the Alliance Morisien standing for the 2019 General
Elections; and

(c) as averred at paragraph 23 above the Constitution allows for

the appropriation and or supplementary appropriation for the
expenditure of any economic and or financial measure that the
Government of the Day and or the House regularly adopts and
or approves. There is no limitation in terms of the calendar for
such appropriation and or supplementary appropriation.

28. The Respondents Nos. 1, 2 and 3 deny the averments of sub

paragraph 16(II)(f) of thePetition and aver that :

(a) the Respondent No 1 did not commit any bribery, treating or

undue influence; and

(b) the Respondent No 1 did not take any measure in exchange

for the votes of public sector employees.

“SUPER CASH BACK GOLD”

9. The Respondents No. 1, 2 and 3 deny Paragraph 16 (III) (a), (b), (c), (d),
(e), (f), (g), (h), (i), (j) and (k) and put the Petitioner to the proof thereof.
 27

29. In answer to the averments of sub paragraphs 16 (III) (a) and (b) of
the Petition, the Respondents Nos. 1, 2 and 3 aver that policy
holders and investors who had not been refunded in toto held a
hunger strike.

30. Discussions were held with the relevant policy holders and investors
and or their representatives. The National Property Fund Limited
came forward with a reimbursement scheme.

31. The Respondents Nos 1, 2 and 3 deny the generalised and

unqualified averment that the Government refused to repay the
relevant policy holders and investors the amount of their investment.

32. Save and except that the Respondents Nos 1, 2 and 3 are not aware
of the status of the cases in court, the Respondents Nos 1, 2 and 3
take note that the Petitioner himself has been informed of the
averments he makes at sub paragraphs 16 (III) (c) of the Petition,
deny the remaining averments of sub paragraph 16 (III) (c) of the
Petition and put the Petitioner to proof thereof.

33. The Respondents Nos 1, 2 and 3 are not aware of the averments of
sub paragraphs 16 (III) (d) and (e) of the Petition. They did not attend
a meeting which they were not aware of.

34. The Respondents Nos 1, 2 and 3 deny the averments of sub

paragraph 16 (III) (f) to (h) of the Petition and put the Petitioner to
proof thereof. The Respondents Nos 1, 2 and 3 deny that the
Respondents No 1 stated that “we” will refund “BAI victims” at a
public meeting in Vacoas or elsewhere.

35. In answer to the averments of sub paragraphs 16 (III) (i) and (j) of the
Petition the Respondents No. 1, 2 and 3 aver that the press and the
media can publish and broadcast articles for which the latter take
responsibility.
 28

36. The Respondents No. 1, 2 and 3 deny the averments of sub

paragraph 16 (III) (k) of the Petition and aver that there was no
"promise" made, no bribery, no deed for a corrupt purpose and no
inducement to make voters vote for the candidates of the Alliance
Morisien.

PERFORMANCE BONUS TO POLICE OFFICERS

37. The Respondents Nos. 1, 2 and 3 deny paragraph sub paragraphs 16

(IV)(a) and (b) and put the Petitioner to the proof thereof. The
Respondents Nos. 1, 2 and 3 aver that the payment of that bonus
was one of the measures contained in the electoral manifesto of the
Alliance Morisien. Similar undertakings were given by the Alliance
Nationale.

38. The Respondents Nos 1, 2 and 3 deny inducing any person to vote
for them and deny that they acted in any way as to cause their
respective election to be invalidated.

39. The Respondents Nos 1, 2 and 3 aver that any appropriation has
been regularly done.

GATHERING AT THE SVICC

11. The Respondents No. 1, 2 and 3 deny paragraph 16 (V) (a), (b), (c) and
(d) and put the Petitioner to the proof thereof

40. Save that the Respondents Nos. 1, 2 and 3 are aware and therefore
admit that the Ministry of Social Security organised for the
distribution of food and refreshments to participants of the event,
the Respondents Nos 1, 2 and 3 make no admission with regard to
the averments contained in sub paragraph 16 (V) (a) of the Petition
and more especially deny that they were involved in that distribution.
 29

41. The Respondents Nos. 1, 2 and 3 make no admission with regard to

the averments contained in sub paragraph 16 (V) (b) of the Petition,
deny same and put the Petitioner to the proof thereof. The
Respondents Nos 1, 2 and 3 further aver that they were guests at
that event and were not involved in the organisation and
management thereof.

42. The Respondents No. 1, 2 and 3 deny each and every averment
contained in sub paragraph 16 (V) (c) of the Petition and reiterate
that this event was organised by the Ministry of Social Security.

43. The Respondents Nos. 1, 2 and 3 deny each and every averment
contained in sub paragraph 16 (V) (d) of the Petition and more
especially deny : (a) that they were involved in the organisation of
that event, (b) that they committed an act of treating and that (c) they
acted contrary to section 64(2)(a) of the Representation of People
Act.

44. The Respondents Nos. 1, 2 and 3 further repeat the averments

contained in paragraphs 10, 11 and 12 above.

THE MBC

12. The Respondents Nos 1, 2 and 3 deny paragraphs 16 (VI) (a), (b), (c), (d),
(e) and (f) and put the Petitioner to proof thereof.

45. The Respondents Nos 1, 2 and 3 deny the averments of sub

paragraph 16 (VI) (a) of the Petition. The Respondents Nos 1, 2 and 3
aver that although the MBC falls under the portfolio of the Prime
Minister, it is a statutory corporation with its own board and
decision-making body and the day to day running of the MBC is
done by the Director General.
 30

46. The Respondents Nos 1, 2 and 3 deny the averments contained in

sub paragraph 16 (VI) (b) of the Petition and, more especially, deny
any knowledge of the contents of reports and news items, under
reference, broadcast by the MBC.

47. Save and except that the Co-Respondent No.4 issued a communiqué,
the Respondents Nos 1, 2 and 3 make no admission with regard to
the averments contained in sub paragraph 16 (VI) (c) of the Petition
which concern Co-Respondent no. 6. The Respondents Nos 1, 2 and
3 aver that they have no control over the reports or news items
which Co-Respondent no. 6 broadcasts.

48. In answer to the averments contained in sub paragraphs 16 (VI) (d),

(e) and (f) of the Petition, the Respondents Nos 1, 2 and 3 deny being
responsible for any of the alleged acts of Co Respondent No 6 and
any alleged matter broadcast by Co-Respondent no. 6.

13. The Respondent’s No. 1, 2 and 3 deny the content of paragraphs 17, 18
and consequently 19 and put the petitioner to the proof thereof.

49. The Respondents Nos 1, 2 and 3 deny any act of undue influence.

50. The Respondents Nos. 1, 2 and 3 deny each and every averment and
allegation contained in paragraphs 17 and 18 of the Petition. The
Respondents No. 1, 2 and 3 deny any illegal and corrupt manoeuvres,
bribery, treating, undue influence, illegal practice and irregularity.
The Respondents Nos 1, 2 and 3 deny that their election should be
avoided.

51. The Respondents Nos. 1, 2 and 3 aver that the political party the Alliance
Nationale published a document purporting to be “a programme
governmental” including but not exclusive of the following promises:

a) An increase in basic retirement pension

 31

b) An accelerated three yearly publishment publication of the PRB

Report.

c) Putting in place a cash performance bonus structure to the

members of Police Force with retroactive retrospective effect

52. The Petitioner has failed to show how the alleged act or acts of treating,
distributing of food and drinks did not form part of the usual activities of
the relevant ministry or ministries.

53. The Petitioner has failed to show how each Respondent committed the
alleged prohibited acts.

54. The Respondents Nos. 1, 2 and 3 move that the petition be dismissed as
it is based on unreasonable, baseless, invalid, false, irrelevant and
inadequate grounds.

With costs,
 32

ANNEX II

SECOND PROPOSED AMENDED PLEA OF THE CO-RESPONDENT NO.6

1. Co-Respondent No. 6 takes note of Paragraphs 1 to 15 of the Petition.

2. Co-Respondent No. 6 denies Paragraph 16 VI of the Petition, (page 5 of

the Petition), puts the Petitioner to the proof thereof and avers that:

(i) Its services had not been abused by any person and especially not
by the Respondent Nos. 1, 2 and 3;

(ii) It was never used as any propaganda machine; and

(iii) It never influenced voters as averred or at all.

3. Co-Respondent No. 6 takes note of paragraphs 16 I (a) to (f) of the

Petition, without making any admission thereto.

4. Co-Respondent No. 6 denies paragraph 16 I (g) of the Petition in its form

and tenor, puts the Petitioner to the proof thereof and avers that, as
National broadcaster, it did no more than perform its function and to
inform the public of an item which was newsworthy, just like other private
radio station and newspapers.

4. In answer to sub Paragraph 16 l (g) of the Petition, the Co-

Respondent No. 6 denies having trumpeted the announcement of the
increase in Basic Retirement Pension by the Respondent No. 1 and
puts the Petitioner to proof thereof. The Co-Respondent No. 6 avers
that:

(a) The Petitioner’s own averment that the announcement was

widely broadcast by the Co-Respondent No. 6, public and
private radio stations and published by daily as well as weekly
 33

newspapers and on social media platforms such as Facebook,

indicates in unequivocal terms that the announcement was a
matter of public interest;

(b) the Petitioner cannot bring forward any allegation of

wrongdoings and/or bad faith against the Co-Respondent No.
6, which at all material times had acted within its mandate to
broadcast matters of public interest; and

(c) the Petitioner did not join any of the private radio stations,
daily and weekly newspapers and social media users referred
to in Paragraph 16 l (g), which had broadcast and published
the said announcement, as a party to the Petition.

5. Co-Respondent No. 6 takes note of paragraphs 16 I (h) to (o), 16 II (a) to

(f), 16 III (a) to (k), 16 IV (a) and (b) and 16 V (a) to (d) of the Petition,
without making any admission thereto.

6. In reply to paragraph 16 VI of the Petition (page 15 of the Petition), Co-

Respondent No. 6 denies that any use of the Co-Respondent No.6 was
made by the Respondents, much less any abusive use.

7. Co-Respondent No. 6 denies paragraph 16 VI (a) of the Petition, puts the

Petitioner to the proof thereof and avers that it, being the public radio and
television broadcaster (not state media) in Mauritius, has played its role to
the best of its abilities since the dissolution of the parliament on the 6th
October 2019.

7. Save and except that the Co-Respondent No.6 falls under the aegis
of the Prime Minister's Office, paragraph 16 VI (a) of the Petition is
denied and the Petitioner is put to the proof thereof. The Co-
Respondent No.6 avers that: -
 34

(a) it is a statutory body with its own Board and a Director

General in charge of the day to day running of its operation;

(b) the Respondent No.1 has, neither by himself nor through his
alleged appointees, interfered in any manner whatsoever with
the contents of its prime-time news bulletins broadcast before
and during the Elections;

(c) the Co-Respondent No.6 has always ensured and is still

ensuring to the best of its ability that the news bulletins
broadcast is presented in an impartial manner;

(d) by letter dated 7th October 2019, the Co-Respondent No.6

requested the Secretary of the Mauritius Labour Party, the
leading member of "I'Alliance Nationale" which was involved
in the 2019 Elections, to submit the date and time of its
political meetings and congresses for coverage;

(e) the said Secretary did not reply to the Co-Respondent No.6;

(f) on 11th October 2019, in a political meeting of "I'Alliance

Nationale" at Flacq, Mr. Patrick Assirvaden, the President of
the Mauritius Labour Party and candidate of the said alliance,
stated the following: -

"Tous les jours l'heure ou guette MBC alors, ki Parlement finn

dissoudre, elections generales inn declenche tous les jours
MBC pe faire propagande pe faire propagande MSM, Pravind
Jugnauth alors ki li pas gagne droit.

Nu finn souleve sa zordi dan Commission electorale nou finn

explik la situation.
 35

La zordi a 2h 30 l'apres midi MBC connait ki si li vinn dan

meeting ici NOU POU TIR LI NOU POU DIR LI NOU NA PALE
MBC.

Zordi 2 heures et demie ena ene journaliste responsable

appelle Boodhna dan MBC... David Boodhna ine faire reunion
avec 5 cameramen prives ki dan la foule zordi pe filme….
PARCEKI ZOT CONNAIT ZOT NATTE ZOT POU DAN COUP DE
VENT SI ZOT VINI"

[Emphasis added.]

(g) it was not the first time that Mr. Patrick Assirvaden had
publicly adopted a hostile attitude towards the Co-Respondent
No.6. On 1st May 2019, i.e., before the dissolution of the
National Assembly, Mr. Patrick Assirvaden had stated the
following:

"Avant ki nou commence nou meeting mo pou demande tres

gentiment, amicalement A MBC DEGUERPIR DE LA SORTI LA.
TRAVAILLSITE PA BIZIN MBC. DEMANDE MBC TIR SO
L'APPAREIL NOU PERMETTE ZOT ALLER. NOU PERMETTE
ZOT SORTI. PAILLASSON NOU PA LE. Nou perna nanrien
contre bann travailleurs nou perna nanrien contre bann
employes MAIS NOU DEMANDE MBC PAILLASSON NOU PA
POU CAPAV ACCEPTE. L'heure changement pe coste."

[Emphasis added.];

(h) the staff of the Co-Respondent No.6, who were covering the
said meetings, were humiliated by the aforesaid hostile
attitude and feared for their safety whereas their expensive
equipment were at risk;
 36

(i) despite such hostile attitude, offensive remarks and threats,

as a gesture of good faith, the Co-Respondent No.6 sent a
second letter to the Secretary of the Mauritius Labour Party to
officially confirm whether it intended to request the Co-
Respondent No.6 to cover its political gatherings;

(j) the Co-Respondent No.6 did not receive any reply to this letter
as well.

8. Co-Respondent No.6 denies paragraph 16 VI (b) of the Petition, puts the

Petitioner to the proof thereof and further avers as following:

(i) This news item had already been in the public domain by other
parties;

(ii) That the subject-matter was the news item of public interest.

9. Save that there was a communiqué dated 29th October 2019, Co-
Respondent No.6 denies paragraph 16 VI (c) of the Petition and puts
Petitioner to the proof thereof and avers that it did not express personal
opinion but related the fact "au conditonnel". Co-Respondent No. 6
further avers that a reading of the communique also shows that:-

(a) the Director General of the Co-Respondent No.6 had informed

the ESC (Co-Respondent No.4) that if the complainants were
to seek a right of reply, that request would be considered. It is
worth noting that the complainants or Mr.Patrick Assirvaden
have not approached the Co-Respondent No.6 for the right of
reply; and

(b) the Co-Respondent No.4 noted in its communique that it was

not favoured with any complaints of similar nature after 20th
October 2019.
 37

10. Save that the Co-Respondent No. 6 has the duty to broadcast news items
of importance, Co-Respondent No. 6 denies Paragraph 16 VI (d) of the
Petition and puts the Petitioner to the proof thereof.

10. Co-Respondent No.6 denies paragraph 16 VI(d) of the Petition and

puts the Petitioner to the proof thereof. Co-Respondent No.6 avers
that:-

(a) the said Dulthumun had requested the Co-Respondent No.6

for a coverage for a matter of public interest;

(b) at no material time he made a direct communal appeal or any

appeal whatsoever to the Hindu community based on an
alleged doctored, manipulated and truncated video clip of the
Petitioner's leader nor invited the "grande famille hindu" to
teach the latter a lesson;

(c) there was no communal controversy in the said Dulthumun's

statement. The statement was not made, deliberately or
otherwise, with the "intention de nuire" and/or create a divide
between the Hindu and Muslim communities;

(d) the averments made in paragraph 16 VI (d) are inexact, grossly

misleading and tainted with bad faith.

11. Co-Respondent No. 6 denies paragraph 16 VI (e) of the Petition, puts the
Petitioner to the proof thereof and avers that it is not aware that it has
refused news coverage to one Mr. Ranjendra Ramdhean. The Co-
Respondent No. 6 did not receive any official request from the said Mr.
Rajendra Ramdhean for a news coverage request.

11. Co-Respondent No.6 denies paragraph 16 VI (e) of the Petition and

puts the Petitioner to the proof thereof. Co-Respondent No.6 avers
that:
 38

(a) on 6th November 2019, i.e., on the eve of the Elections, the
said Rajendra Ramdhean convened the Co-Respondent No.6
for a press conference at 11.30 hours;

(b) Co-Respondent No.6 attended the press conference and

recorded the statements of the said Rajendra Ramdhean;

(c) the statements were mostly of a political nature and could

have impacted the Elections;

(d) the Co-Respondent No.6’s prime time news bulletins are

scheduled at 18 00 hours and 19 30 hours and broadcasting
the press conference of the said Rajendra Ramdhean would
have been in breach of the guidelines which had been issued
by the Independent Broadcasting Authority for private and
public broadcasters for the National Assembly Elections 2019;

(e) The guidelines expressly provided that: -

"broadcasting licensees shall in particular, ensure that, during

the 24 hours starting from midnight immediately preceding
polling day and up to the close of polling, they do not
broadcast any political programme and politically-related
matter which may reasonably upset the balance to be
observed throughout the election broadcast period pursuant
to these Guidelines. This includes opinion and intention
polls";

(f) in any event, the said Rajendra Ramdhean was not an

'aggrieved party' entitled to right of reply;

(g) in fact, on the 6th November 2019, the Petitioner's leader was
at the office of the Co-Respondent No.6 from around 09 00
hours to 14 00 hours, for the recording of his last political
party election broadcast. Had he felt aggrieved by the said
 39

Dulthumun's statement, he would have asked for a right of

reply. He neither asked for the right of reply nor made any
mention of the said statement and/or the video clip which was
widely published and shared on social media platforms such
as WhatsApp and Facebook, in the political address of
"I'Alliance Nationale", which lasted for around 13 minutes.

12. Co-Respondent No. 6 denies Paragraph 16 VI (f) of the Petition, puts the
Petitioner to the proof thereof and avers that there was no misuse of Co-
Respondent No. 6 by any person reiterates the above averments.

13. Co-Respondent No. 6 takes note of denies of paragraphs 17 and 18 of

the Petition without making any admission thereto and puts the
petitioner to proof thereof.

14. Co-Respondent No. 6 therefore moves that the Petition be set aside with
costs.