MANUAL FOR FOUNDATIONS OF
MAURITIAN LAW/MAURITIAN LEGAL
SYSTEM
September 2016
UNIT 1 - HISTORY OF MAURITIAN LAW
1.1
1
Introduction
Getting to the roots of the history of Mauritius, from 1715 till 1968, it had been living under the
clutches of two Colonial Masters, the French and the British. While, it cannot be refuted that the
Dutch set foot on the island much before the two Colonists with the same idea of colonization,
the contrast made under the impetus of the French and the British was that they gave birth to the
history of Mauritian Law.
In a more explicit manner, during 25 years of Dutch Colonization, there was no single trace of
law which they applied. However, when it came to the French and British, despite their futile
colonization attempts, their governing laws made their mark on our legal system to such an
extent that they have been entitled as the two parent systems which have erected the Mauritian
Legal System. Hence, the only significance of Mauritius being a hybrid legal system is that it is a
fusion of French and British legal traditions. Accordingly, the Mauritian legal system is
governed by principles originating both from the French Code Napoleon and the British
Common Law.
In light of the above, the substantive part of the law of Mauritius is essentially inspired from
French laws which are the French Codes such as the French Civil Code, the Penal Code and the
Code de Commerce, while, on the other hand, the procedural aspect of the law comes primarily
from the British laws such as the law of evidence, the criminal procedure Act and so on. Finally,
Public Law relating to trade, shipping, finance and a Westminster type of Government, a
1
This chapter is based on the Mr. P R Domingue Manual on Legal Methods and Mauritian Legal System (August
2008).
Constitution, a Civil Service and a British type of education system has also been inherited by
Mauritius from England.
At this stage, it is important to note that despite the fact that the Mauritius Civil law is inspired
from French Laws and its Common Law from England, both have amalgamated together to
create one distinct system. This is the reason as to why we say that “le droit mauricien est un
droit mixte par excellence”. For instance, while it is the French Civil Code (Now known as the
Code Civil Mauricien) that enshrines provisions on divorce, the Divorce and Judicial Separation
Act of England steps in to supplement the provisions of the Code.
Hence, our legal system is neither purely a civilian nor a common law system but instead is a
fused version of the attributes of both. However, today, Mauritian law has developed into a
significant body of law with independent philosophy, doctrine and jurisprudence. Without an
ounce of doubt, this is the upshot of the fundamental role played by the Mauritian Judiciary. This
shall be discusses more elaborately in the following paragraphs.
1.2
Evolution of the Mauritian Legal System during the French Colonial Period
In the era when Mauritius was under the reign of the French Colonists that is from 1715 to 1810,
the population was segregated between the Whites, the Slaves and the Coloured. Together with
this segregation, they were also segregated in terms of the laws they had to abide to in the sense
that all 3 groups were subject to different laws.
The 1st group which comprised of the Whites was governed by the “Coutumes de Paris” and the
“Ordonnances de Colbert” which were the governing laws before the promulgation of the Code
Napoleon during the period of 1804 – 1810. The 3rd group consisting of slaves was governed by
the Code Noir which is inspired by Roman law and which classifies slaves as movable property
which can either be seized or sold. As far as the Colored also known as the enfranchised slaves/
“les affranchis” were concerned, they were treated like the whites to some extent while there
were also some provisions of the Code Noir which was unfortunately applicable to them. For
instance, they could not be the beneficiaries of a will made by a White, they did not have the
liberty of exercising a profession such as being a barrister or a medical practitioner, or even they
were not allowed the title of “Sieur” or “Dame” in their civil status certificates but were
addressed by the title of “le nomme” ou “la nommee” that is in the way slaves were being
referred to at that time.
It is also instrumental to note that the French Revolution which occurred during the period of
1789 to 1799 also had a significant effect and stimulated diverse changes in our legal system. On
the lengthy list, for instance a Colonial Assembly was instituted and adopted the 1789 French
“Declaration des droits de l’homme et du citoyen”. What is striking here is that even if at that
time, the rights in the Declaration were exclusively applied only to Whites and Coloured, it
represents a landmark in the protection of Human Rights in Mauritius today.
At this stage, it might also be relevant to note that under the French Supremacy, there was
equally a Court System which was put in place whereby for instance, a “Conseil Provisoire” with
civil and criminal jurisdiction was initiated. Furthermore, in 1723, a Notariat was also set up
followed by an ordre du Barreau in 1787 to regulate the legal profession in Mauritius. Together
with this, a “Conseil Provincial” was also established in 1723 to act as a Court of First Instance
whereby a litigant could appeal against its decisions before the “Conseil Superieur” of Bourbon,
in Reunion Island. However, this Conseil Provincial was substituted by a Conseil Superieur in
1734 which was not only a Court of First Instance but also the last recourse that existed.
Afterwards, a Royal Court was set up, more precisely in 1771, to hear cases at first instance
implying that the Conseil Superieur now became a Court of Appeal from the decisions of the
Royal Court. Ultimately, some years after the French Revolution started off, the Conseil
Superieur was conferred the appellation of Cour d’Appel which was chaired by 9 judges while
on the other hand the Royal Court was entitled the Tribunal de Premiere Instance. On a final
note, decisions of the Conseil Superieur/Cour d’Appel were prone of being a subject of a
“pourvoi en cassation” to the Cour de Cassation in Paris.
1.3
Evolution of the Mauritian Legal System under the British Colonial Administration
In 1810, Mauritius came under the dominance of its second Colonial Master- the British. At this
point, it is relevant to observe that even if the British took over Isle De France, by virtue of
Article 8 of the Treaty of Capitulation, they guaranteed that they would respect the language, the
customs, the laws and the traditions of the inhabitants. It is not only the inhabitants who were
able to keep up with their religion and customs but the already existing tribunals were also
allowed to remain the way they used to be to the exception of the formulary of the judgments and
the “pourvoi de cassation” which was conferred to his Majesty the King.
Also, in 1832, a Penal Code was adopted. On not receiving the sanction of the Secretaries to the
Colonies, the penal code which was promulgated in 1791 regained force of law. However,
inspired by the French Penal Code of 1810, a new Penal Code was enacted in 1838 which was
drafted in English and French.
At this stage, it might be important to note that while under the British Colonial Rule, more and
more voices were being heard in favor of the Anglicization of the procedure, the French were
unmoved from their decision of maintaining the French legal culture and accordingly they
requested that the Article 8 of the Treaty of Capitulation be stringently abided by. Nevertheless,
by virtue of an Order in Council in 1836, the judges of the Court of Appeal were vested with the
power to embody the Rules of Court with the intention of appropriate administration of justice.
Consequently, these Rules abolished diverse provisions of the Code de Procedure Civile and
instead introduced English Rules of Civil Procedure. For instance, the Rules made it clear that
barrister or attorney required imperatively an adequate acquaintance with the English language
before pleading before the Court.
While, during the period of 1810 till 1816, all laws were being promulgated in French, as from
1816, this did change to some extent whereby the Governor’s Proclamations and other Public
Acts or Notices of the Executive Government were now to be promulgated both in the English
and French languages. Nevertheless, an Order in Council of 1841 erased the mark of the French
completely by providing for that all future laws were to be published only in English. If it
happened that there is any version of French, it would be entitled as being translations and not
originals. At the same time, Courts were requested to consider only English Versions for their
perusal.
In 1850, an array of fundamental changes was brought about in the Mauritian Judicial System.
For instance, Ordinance No.2 of 1850 put up the Supreme Court and arranged for the
establishment of District Courts. Accordingly, the Supreme Court came in the place of the Cour
D’Appel and the Tribunal de Premiere Instance was abolished. The Supreme Court was
conferred all the powers, authority and jurisdiction which were endowed in the then Court of
Queen’s Bench of England, and the Judges of the Supreme court were to adhere to the same
decorum of the Court as the Judges of the Queen’s Bench.
At this point, it becomes rather obvious that the new culture would also encompass the fact that
the Supreme Court had now to abide by the doctrines of binding precedent and stare decisis,
which are the pillars of the common law system. This would imply that now the decisions of the
Supreme Court would not only be mandatory for inferior courts but for the Supreme Court as
well.
Among the powers vested in the Supreme Court, one of them was that whenever the case of a
litigant was being determined by the Supreme Court, he was utterly deprived of the right to
appeal to the Judicial Committee of the Privy Council (JCPC). Hence, in 1955, a Court of
Criminal Appeal was initiated to hear appeals from individuals convicted before the Supreme
Court and it comprised of 3 judges. By the same token, a Court of Civil Appeal was also set up
to hear appeals from civil decisions.
Moreover, the introduction of the Supreme Court also brought about amendments in the
procedural law and the law of evidence. Diverse ordinances were passed with the aim that every
criminal process would follow the English model. In 1852, the Code d’instruction Criminelle
was repealed and a Criminal Procedure Ordinance was enacted to cater for the prosecution of
criminal offences and the conduct of criminal trials.
Finally, it can be stated that in some way or the other, some signs of the French Criminal Justice
remained. As supporting evidence, Members of the Attorney General’s Office (Magistrature
Debout) were conferred special seating arrangements when they appear before the Supreme
Court.
1.4
Adoption of a public law of English Inspiration
Mauritius also inherited public law and administrative set up from its second Colonial Master.
As a matter of fact, the diverse constitutional developments until Independence have been with
the aim of bestowing Mauritius with a representative and responsible government modeled on
Westminster and to cater for abuse of power. Also, the Supreme Court being vested with the
same powers as the Court of Queen’s Bench implied that it now had the jurisdiction to review
decisions of public authorities and to issue prerogative orders or writs whenever it was deemed
appropriate to do so.
Moreover, the laws concerning trade, shipping, banking and finance were progressively
substituted by the laws of the United Kingdom relating to same. For instance, diverse provisions
of the Code de Commerce originating from French laws were abolished while the Bankruptcy
Ordinance, inspired from the UK Bankruptcy Act was adopted. At the same time, the provisions
regarding Commerce Maritime in the Code were repealed to be replaced by the Merchant
Shipping Ordinance. Ultimately, the provisions relating to “La lettre de change et le Billet a
ordre” were also replaced by the Bills of Exchange Ordinance.
1.5
Amendments to the Code Napoleon
On the 1st of February 1835, slavery was abolished in Mauritius. As an upshot of this, all
inhabitants of Mauritius would now be subject to the Code Napoleon. However, in 1871, the
British who had the country under its dominance stepped in to make its first amendment to the
Code.
The main aim of the British behind amending the Code was to ease out the task of the new
Colonial Administration and to keep up with the challenges of the emerging multi cultural
Mauritian Society.
An example of an amendment to the Code would be the registration of births, marriages and
deaths whereby in order to ease the task of the administration, the Civil Status Ordinance
repealed the provisions of the Code on “l’etat civil” and re drafted the majority in English
language. Nevertheless, the Supreme Court concluded that the provisions of the civil status
ordinance were simply a translation of the articles of the code and that their interpretation would
be channeled by French doctrine and case law.
The most significant amendments to the Code Napoleon during the British colonial period
focused on the domain of family law and “le droit des personnes” more precisely, on the
recognition of Hindu and Muslim religious marriages and the recognition of children born out of
these marriages as legitimate. On a different note, it might be pertinent to note here that today
this is not applicable anymore as in situations where religious marriages are celebrated prior to
the Civil Marriage or that Civil Marriage is not performed at all, the religious marriage is not
valid. However, for those of Muslim Religion, the Nikkah is allowed to be performed before the
Civil Marriage but it will not be valid if the Civil Marriage is not performed at all.
Finally, there were also amendments in Indian Marriage Ordinances providing for that Hindu and
Muslim priests be appointed to act as civil status officers by the Governor for the celebration of
religious marriages.
1.6
Emergence of a distinct corpus of Mauritian Law
The “Report of the Committee on the Review of legal studies in Mauritius” chaired by
Rajsoomer Lallah provided for that “In spite of its origins, Mauritian law ceased over the years
to be partly English and partly French but has developed into a significant body of law with a
philosophy, doctrine and jurisprudence of its own... ”. Accordingly, the Committee contended
that the judiciary has a prominent role to play in the emergence of the Mauritian Law whereby it
developed “what may be called a Mauritian approach to jurisprudence, always alive to judicial
thinking in England and France...but not hesitating to adopt solutions more consonant with the
Mauritian context”.
As a matter of fact, the judges of Mauritius were much cognizant of the amalgam of French and
British Laws and the significance of preserving it. At the same time, even if they would time and
again turn to English or French Case Law for interpretation, they would be much alert while
doing so.
For instance in the case of The Queen v. L'Étendry, the Supreme Court affirmed that the
normal rule of construction laid down by it, time and again, is to the effect that when our law is
borrowed from French law we should resort for guidance as to its interpretation to French case
law.
However, in the case of Pierrot v De Baize (1880) MR 158, it was contended that though the
judges are generally inclined to follow the decisions of the courts in France upon the questions of
interpretation of the Codes, they would decline to do so where our local ordinance borrowed
from the French law is in many aspects different from it.
Thus, in the case of Mangroo v. Dahal, the Supreme Court refused to follow the decision of the
French Court of Cassation in l'arrêt Jand'heur, considering that no Court of Justice is empowered
to alter a clear text of law (it thus ruled that Article 1384 of the Code Napoléon does not find its
application when road accidents occur, but rather Articles 1382 or 1383 of the Code).
1.7
Evolution of the MLS since Independence
Mauritius obtained its written Constitution by virtue of the Mauritius Independence Order of the
4th March 1968 on conquering sovereignty. The laws which were already promulgated remained
the way they are but they had to be in accordance with the Constitution which is the supreme law
of the land in the same way as would any laws made by Parliament.
As an upshot of independence, various legislative reforms took place. As a matter of fact, they
were all directed to strengthen the fused character of the Mauritian Legal System. For instance,
during the late 70s and early 80s, the Code de Commerce and the Code Napoleon were
substantively amended and these were enacted in the French language and drafting style.
In fact, the reforms made to the Code Napoleon were made with the idea of adjusting the law to
the social evolution and mores of the society and they accentuated on embedding gender equality
in the family unit while equally promoting the best interests of the child.
Furthermore, the law of trusts, originating from English Law also emerged in the Mauritian
Statute books and was made to exist in harmony with the civilian concept of “la propriete”.
Finally there was also the introduction of the Labour Act in 1975.
REFERENCES

BOOLELL, V. (1997). British Impact in the Legal Field. Bar Chronicle 33-39.

COLOM, J. (1989). La Protection Constitutionnelle du Droit de Propriété à L'Ile
Maurice. In La Formation du Droit National dans les pays de Droit Mixte: Systèmes
Juridiques de Common Law et de Droit Civil

DOMINGUE P R Legal Method and Mauritian Legal System (August 2008)

FOKKAN, D. (1995). Introduction au Droit du Travail Mauricien: Les Relations
Individuelles de Travail.

MEETARBHAN,
J.N.
(1994).
Souveraineté
Parlementaire
et
Suprématie
Constitutionnelle. In L'Effectivité des Droits Fondamentaux dans les Pays de la
Communauté Francophone

Report of the Committee on the Review of Legal Studies in Mauritius (1983)
UNIT 2 – FEATURES OF A MIXED LEGAL SYSTEM
As already explained above, the history of Mauritius has greatly influenced the development of
our legal system. On one hand, a large part of Mauritian law is governed by French law based
rules. Thus, the Code civil mauricien was inspired by its counterpart, the Code civil français
from 1804; the Mauritian Criminal Code, was inspired on many points by the French Code pénal
of 1810 and our Code de commerce took as a model the French Code de commerce. For
example, Mauritian contract law, tort law, property law, family law and law of successions were
inspired by French legal rules. On the other hand, English law and laws of other Common Law
jurisdictions have also contributed to the creation of our legal system. For example, Mauritian
law on Criminal Procedure2 and Evidence3 is English based. Judicial review of decisions of
public authorities in Mauritius is governed by Common Law rules. There are numerous
Mauritian laws which are written in English and inspired by Common Law systems. The Trusts
Act 2001, Companies Act 2001, and Landlord and Tenant Act 1999 are such examples.
Hence, the Mauritian legal system can be called a mixed legal system: part of it is inspired by
French law and the other part by English law. However, the way each part is written is different.
{The first, “French Law based” part contains the rules which are rather short and general, and
judges and magistrates are expected to interpret them in light of the circumstances of every case.
On the contrary, the second one contains detailed rules, which reduce the power of
interpretation.} Codified laws are made up of provisions which are short and general. Therefore,
judges and magistrates are expected to interpret them in light of the circumstances of every case.
On the contrary, English law based rules are detailed. The power of interpretation of judges and
magistrates is lessened.
It is essential to be reminded that laws in different areas coexist and are not isolated from each
other. For example, the contract of lease of dwelling houses (their purpose is residential) in
Mauritius is regulated by the provisions of the Landlord and Tenant Act of English inspiration
and the Mauritian Code civil (louage des choses). Those two sets of legal rules are
2
3
See : Criminal Procedure Act 1853
See : Part V of The Courts Act 1945
complementary. Moreover, our Civil Code contains clear and detailed rules on “sûretés fixes et
flottantes”4 which are concepts of British inspiration.
Even though one cannot deny that the decisions of English courts, French courts and other
Common Law jurisdictions courts are greatly taken into account by our courts, those decisions
are not formal sources of Mauritian law5. This is because Mauritian law as a mixed legal system
is an autonomous legal system. The truth is that our courts will often quote decisions of English,
French and other courts in order to make as strong as possible its legal reasoning, and especially
“where Mauritian legislation has been borrowed from English or French legislation”6.
However, it has to be highlighted that there is no legal obligation for our courts to follow the
decisions of French or English Courts. Thus, Mauritian courts have the right to adopt a solution
differing from the one expressed in a French or English decision if it would better satisfy the
needs and interests of our society7. “Thus in Mangroo v. Dahal (1937) MR 43, the Supreme
Court refused to follow the decision of the French Court of Cassation in l'arrêt Jand'heur,
considering that no Court of Justice is empowered to alter a clear text of law (it thus ruled that
Article 1384 of the Code Napoléon does not find its application when road accidents occur, but
rather Articles 1382 or 1383 of the Code)”8.
It is important to mention that in spite of the fact that a large part of our legal system is inspired
by French law (where judicial precedent is not a formal source of law) and that the article 5 of
our Civil Code provides that “il est défendu aux juges de prononcer par voie de disposition
générale et réglementaire sur les causes qui leur sont soumises”, judicial precedent is a formal
source of Mauritian law. It means that in Mauritius “the decision of a superior court”, Supreme
Court, “is binding for the future on a court inferior to itself and sometimes binding on the court
which gave the decision”9. Every lawyer in Mauritius has to search and find the essential part of
a legal decision which contains the answer of a court to the legal issue raised by litigators and is
4
Art. 2202 to 2203-7
“(…) Except in those areas where Common Law or Equitable rules have been made applicable by Parliament” P. R.
DOMINGUE, Introduction to Law and Legal Methods, Unit 2, p. 12
6
P. R. DOMINGUE, Introduction to Law and Legal Methods, Unit 2, p. 12 ; The Queen vs. L'Étendry (1953) MR 15
7
See : Jugessur Mrs Shati & ORS vs Bestel Joseph Christian Yann & ANOR 2007 SCJ 106 and Cass. ch.
5
mixte, 27 fév. 1970 n° de pourvoi: 68-10276
8
9
P. R. DOMINGUE, Introduction to Law and Legal Methods, Unit 2, p. 13
P. R. DOMINGUE, Introduction to Law and Legal Methods, Unit 2, p. 9
called ratio decidendi10. How is judicial precedent a formal source of law in Mauritius in spite of
the French Law based article 5 of our Code civil? The answer is contained in section 2 of the
Ordinance n° 2 of 1850. According to this section, the Supreme Court, shall be vested with the
same powers, authority, and jurisdiction as Her Majesty's Court of Queen's Bench in England.
Moreover, section 4 of the Ordinance provides that the Supreme Court and the judges thereof
shall sit, and proceed to and conduct, and carry on, business in the same manner as the Court of
Queen's Bench and the judges thereof. The Court of Queen's Bench and other English courts
applied a system of judicial precedent and stare decisis which means that the decisions of higher
courts were binding on inferior courts and on themselves11. In Mauritius, in the same way as in
England, the judicial precedent is a formal source of law. The essential part of it, called ratio
decidendi must be followed by the Intermediate court and District courts when they address the
same legal issue. On the contrary, the Intermediate court and District courts do not have to
follow the non-essential parts of Supreme Court’s decisions (obiter dictum). The Ordinance as
lex posterioris repealed the article 5 of the Code civil mauricien.
10
11
The non binding part of a decision is called obiter dictum.
P. R. DOMINGUE, Introduction to Law and Legal Methods, Unit 2, p.10
UNIT 3 – BRANCHES OF LAW
3.0 Content
Law is so complexed that it is important to classify legislations in civil (Civil Status Act 1983,
Divorce and Judicial Separation Act 1983 or Protection from Domestic Violence Act 1997) or
public law (University of Mauritius Act, The Private Secondary Schools Authority Act 1976 or
PSSA Act 1976, Public Service Commission Act 1953 (Act 23/ 1953) or Dangerous Drugs Act
2000). Civil Law and Public Law therefore are the two main branches of law. With the
development of the law, new or emerging branches of law are burgeoning, including now
innovative law such as International Arbitration Law, International Humanitarian Law, The Law
of Islamic Banking and African Regional Law just to name a few. Law is stretching its branches
further and further to include new branches such as Law on Piracy, Law of Armed Conflicts and
International Humanitarian Law, Law of Cyber Crime, Law of the Internet, Building and
Construction Law, Gender Law or Disability Law just to name a few.
3.1 Learning objectives.
The learning objective of this chapter is to avoid any confusion between the different branches of
the law in general irrespective it is Mauritius of foreign law.
3.2 Learning outcomes.
By the end of this unit, you must be able to do the following distinctions between:
 Constitutional law and administrative law
 Private law and public law
 The various and different fundamental rights of the individuals and how the Courts
interpret these relevant sections of the Constitution
3.3 Introduction.
Law covers very wide areas such as social norms, politics, some aspects of sociology,
HIV/AIDS, marriage and divorce, filiation, succession and wills, trade and business, sale of
moveable and immoveable property, human rights, public international law, private international
law, law of the sea, international humanitarian law and the law of armed conflicts, labour and
industrial relations law, property law, criminal procedure, civil procedure, criminal law, the law
of evidence, trusts, company law, droit des sociétés, banking law, financial law, gender law,
jurisprudence, law of contract, torts or la responsabilité civile délictuelle, commercial law,
mortgages or sûretés, corporate governance, arbitration and international disputes, law of
international trade, revenue law and income tax law, les régimes matrimoniaux, contrats
spéciaux, environmental law, corporate law, constitutional law, administrative law, droit des
personnes, intellectual property law, medical law just to name a few.
All these areas of the law are covered in most tertiary institutions so that students are well
prepared in their future careers as a barrister, attorney, notary, legal advisor, offshore companies
managers, academics, magistrates, ushers, clerks of the courts, diplomats and judges but this list
is not exhaustive. However, the law consists of several branches of which is Private Law (Family
Law, Property Law, Matrimonial Regime Law, Law of Successions and Wills), Public Law
(Constitutional Law, Administrative Law and Judicial Review, Banking Law, Company Law)
and International Law (Public International Law, Private International Law, International
Humanitarian Law and The Law of Armed Conflicts, Maritime Law and Law of the Sea,
International Trade Law, International Commercial Law).
In Mauritius, since we have inherited French Civil Law and UK Common Law, we are still
inspiring from UK legislations and precedents from the Court of Cassation and which are
imported in statutory books and decisions of the Supreme Court and other inferior courts.
Therefore, it is important to know and understand which particular law falls under which
particular branches of the law. If the substantive law is French law (Criminal Law, Civil Law) or
UK law (judicial review) the procedure is again borrowed from UK law (injunctions, criminal
procedure, civil procedure, bail, habeas corpus, Judges’ Rules, the information) with traces of
French civil procedure (action possessoire et action pétitoire, saisie-arrêt, saisie-revendication,
saisie conservatoire, la tierce opposition). All these procedures would guide attorneys to follow
the correct procedure before a court of law. There are relevant legislations such as the Criminal
Procedure Act, Courts (Civil Procedure)Act, District and Intermediate (Civil Jurisdictions) Act
(DIC(CJ) Act), District and Intermediate Criminal Jurisdiction Act (DIC(CJ) Act), Criminal
Appeal Act or Civil Appeal Act coupled with The Supreme Court Rules and The Supreme Court
(Constitutional Relief) Rule 2000. Indeed, in Mauritius, the Attorney General in consultation
with the Chief Justice may provide for additional rules and regulations to facilitate lengthy and
unnecessary procedure before a court of law otherwise the Court would reject an application
because it is outside the delay (refer to the Chapter 11 on Administrative and Judicial Review
where this issue has been discussed) or an appeal because it is time-barred or applications which
are frivolous and vexatious.
CIVIL LAW AND PRIVATE LAW
PUBLIC LAW: CONSTITUTIONAL
LAW, ADMINISTRATIVE LAW,
BANKING LAW
MAIN BRANCHES
OF LAW
INTERNATIONAL LAW: PUBLIC
INTERNATIONAL LAW, PRIVATE
INTERNATIONAL LAW,
INTERNATIONAL
HUMANITARIAN LAW
COMMON LAW, EQUITY,
INTELLECTUAL PROPERTY
LAW, CYBER CRIME
In France and the UK, academics are very strict on the different branches of law as they are
specialized in one particular field only as le civiliste, le publicist or le constitutionaliste.
However, in Mauritius we are very far from this distinction and both academics, lawyers and the
judiciary deal with different areas of the law at the same time. However, as an illustration, there
is no Constitutional Court in Mauritius unlike the Republic of South Africa where judges are
specialized in Constitutional and Human Rights law. In Mauritius, since judges of the Supreme
Court have unlimited powers, they sit to hear disputes on constitutional law, administrative law,
judicial review, election petition, divorce cases, promotion and dismissal on the workplace,
successions and wills, company law, droit des sociétés, régimes matrimoniaux, property law,
issues pertaining to the Landlord and Tenant Act, arbitration just to name a few whereas in
France the Cour de cassation have different ‘chambres’ where judges hear matters in dispute in
their respective field. There has been some slight improvement with the creation of the Supreme
Court–Family Division which hear cases related to marriage and divorce; the Supreme CourtCommercial Division which hears matters on commercial law.
3.4 Public Law as a branch of law. One of these branches of law is Public Law. Constitutional
law and Administrative law are the most important branches of public law. They are also made
compulsory in most syllabi irrespective they are taught in the UK, France or Mauritius and they
may be taught independently or together. Mauritian Administrative Law deals with the Public
Service Commission, public statutory bodies and judicial review (refer to Chapter 10). This unit
deals with the Constitution of Mauritius, which dated back to 1968. It provides important
provisions as to the rights of the accused before a court of law, the immunity of the President of
the republic of Mauritius, the powers of the Prime Minister and the Leader of the Opposition, the
role of the ombudsperson, the nomination and revocation of the judge of the Supreme Court, the
powers of the Supreme Court, the divisions of the Supreme Court, appeal to the Judicial
Committee of the Privy Council under certain conditions, the original jurisdiction of the Supreme
Court and a Schedule pertaining to election in Mauritius. The main source of Constitutional Law
is the written Constitution, 1968 which was drafted on the eve of the independence, in 1968. It is
the supreme law of the land. Section 2 of the Constitution enacts that:
‘‘Section 2 of the Constitution. Constitution is supreme law
This Constitution is the supreme law of Mauritius and if any other law is inconsistent with this
Constitution, that other law shall, to the extent of the inconsistency, be void’’.
This important piece of legislation is incontournable in Mauritian law. It provides for democracy
and sovereignty (section 1 of the Constitution, 1968), fundamental rights and freedoms of all
individuals in Mauritius (sections 3 to 16), citizenship, the role of Parliament and the National
Assembly, the Executive and the Judicature, right to appeal to the Judicial Committee of the
Privy Council under conditions (section 81 of the Constitution, 1968), the unlimited jurisdiction
of the Supreme Court (section 76 of the Constitution, 1968), the Ombudsman, Finance, The
Rodrigues Regional Assembly, the President and Vice-President of the Republic of Mauritius
and some schedules on election and registration of parties.
The three main powers that is the Executive power, Legislative power and the Judiciary work
independently based on the doctrine of the separation of powers which is inspired from the
theory of John Locke. In time of chaos and disorder in a sovereign State, there is consequently
no separation of powers and the three predominant powers would not be able to function
properly.
CASE STUDY
Mahboob v. Government of Mauritius 1982 MR 135
The plaintiff sold an immoveable property to an alien in circumstances which made the sale null
and void. The Supreme Court held that the plaintiff was the legal owner of the immoveable
property. Subsequently Parliament passed an Act which deemed that the sale was valid and that
the alien had a valid title to the immoveable property. The Supreme Court found that it is a
fundamental disposition of the Constitution that there should be a separation of powers between
the legislature, the executive and the judiciary. Parliament has no more rights to pronounce
judgments than the Supreme Court has a right to pronounce judgments than the Supreme Court
has a right to make laws. The enactment was a usurpation of judicial power and must be struck
down. In spite of the Act, the plaintiff remained the legal owner of the immoveable property.
According to Chief Justice Rault, the Act amounted to a deprivation of property in breach of
section 3 of the Constitution, and must be struck down.
3.5 Fundamental rights. This unit deals with some provisions of the Constitution and the
fundamental rights of the individuals. These fundamental and human rights are borrowed from
international human rights instruments such as the Universal Declaration of Human Rights 1948,
the European Convention of Human Rights 1950, the African Charter just to name a few. When
the constitution was drafted by Professor De Smith, he included these rights to protect the
accused and any individual who is being prosecuted before a court of law in order for him to
enjoy a fair trial before an independent and impartial court. The fundamental rights and freedoms
of the individual as listed below:
FUNDAMENTAL
SECTIONS OF THE
RIGHTS
CONSTITUTION
SOME CASE LAW AND
DECISION OF THE SUPREME
COURT
1
Fundamental rights SECTIONS
3-16 Sheriff v. District Magistrate of
and freedoms of the CONSTITUTION
Port-Louis 1989 MR 260
individual
2
Protection of right to SECTION
life
3
CONSTITUTION
Protection of right to SECTIONS 3 AND 5
personal liberty
4
4
Protection
CONSTITUTION
from SECTION 6 OF THE
slavery and forced CONSTITUTION
labour
5
Protection
from SECTION
inhuman treatment
CONSTITUTION
7 Virahsawmy v Commissioner of
Police 1972 MR 255 (Sir Maurice
Latour-Adrien Chief Justice and
Justice Ramphul). Circumstances
in which the Supreme Court held
that solitary confinement and the
physical and mental discomfort
caused by such confinement, did
not constitute torture or inhuman
treatment within the meaning of
section 7(1) of the Constitution of
Mauritius.
6
Protection
from SECTION
deprivation
8
of CONSTITUTION
property
7
Protection
for SECTION
9
privacy of home and CONSTITUTION
other property
8
Provisions to secure SECTION
protection of law
9
CONSTITUTION
Protection
of SECTION
freedom
of CONSTITUTION
conscience
10
11 In Veeramootoo v Veeramootoo
1991 MR 39 (Justice Lallah , the
respondent sought a divorce on
the ground that the appellant had
changed her religion and was
neglecting her household duties
and generally humiliating the
respondent.
granted
the
The
trial
divorce
judge
on
the
ground of the wife’s faute holding
that she had done everything to
offend
the
respondent.
The
appellant appealed. According to
Encyclopédie
Dalloz:
‘‘chacun
des époux a le droit de partager sa
réligion et le divorce pourrait être
prononcé contre celui des époux
qui empêcherait son conjoint de la
faire’’.
Section
constitution
is
11
of
expressed
our
to
include freedom of thought and
of religion including ‘freedom to
change
one’s
religion’.
The
appropriate provisional decree of
divorce which, it seems to me, fit
the situation
is one ‘aux torts
partagés des époux’.’’ Refer also
to Minerve v Minerve 1987 MR 45.
10
Protection
of SECTION
freedom
of CONSTITUTION
expression
12 Duval v Commissioner of Police
1974 MR 130 , State v Bacha 1996
MR 97, Rogers v The Comptroller
of Customs 1994 MR 144, Glover v
Boodhoo 1992 MR 259/ SCJ 380
11
Protection
of SECTION
13 J.W.Clarisse v. The Dry Cleaning
freedom of assembly CONSTITUTION
& Steam Lunadry Ltd 1991 SCJ 4
and association
12
Protection
of SECTION
14
freedom to establish CONSTITUTION
schools
13
Protection
of SECTION
freedom
of CONSTITUTION
15 Noordally
v. Attorney-General
and DPP 1986 MR 204
movement
14
Protection
discrimination
from SECTION
16 Matadeen and anor v Pointu and
CONSTITUTION
ors Privy council 1998 MR 172,
Jaulim v DPP MR 1976, Lagesse
v DPP 1990 MR 194, Lagesse v
DPP 1990 MR 194
Noordally v Attorney General and DPP 1986 MR 204
The applicant was arrested after he was suspected of being in possession of heroin. He was
denied bail on the basis of 46 (2) of the Dangerous Drugs Act 198612 and sought a declaration
that 46 (2) of the Act violated section (3) and (5) of the Constitution. It was held: (i) Section 5 of the Constitution indicates that the suspect remaining at large is the rule, his
detention on the ground of the suspicion is the exception, and he must be tried within a
reasonable time or released.
(ii) It is not in accordance with the letter and spirit of the Constitution to legislate and allow the
Executive to overstep the judiciary’s role in ensuring the citizen the protection afforded by the
law.
(iii)Within the framework of the Constitution, Parliament’s right to pass law remains unfettered
and a law, which passes the test of Constitutionality, could not be questioned. The Court’s
power to control the Executive in accordance with its constitutional role also remains unfettered.
(iv) Section 46(2) of the Dangerous Drugs Act 1986 is void.
(v) In an application for redress against a violation of Chapter II of the Constitution, the
complainant should usually apply in person and follow the correct procedure.
3.6 Observation. The proper test of whether bail should be granted or refused is whether it is
probable that the defendant will appear at the trial. Bail is not to be withheld as a punishment.
CASE STUDY
Section 5 – Protection of right to personal liberty.
12
Note that the Dangerous Drugs Act (DDA) is amended- refer to The DDA 2000.
In Sheriff v. The District Magistrate of Port Louis 1989 MR 260, it was held by the Court that
the Police have an undeniable right to arrest and detain persons suspected of having committed
an offence is almost axiomatic."The applicant has been arrested and detained in connection with
a drug offence allegedly committed in 1989 prior to the coming into force of the amendment to
the Dangerous Drugs Act 1986 which provides for tougher penalties for offenders in
contradiction to users. We are fully alive to the fact that the fight against those involved in the
commission of offences relating to drug trafficking should be relentless, merciless but not an
obsession. Detention should never be used as a disguised punishment against a suspect whom the
police feel they cannot pin down in the absence of solid evidence.
CASE STUDY
Section 12: Protection of Freedom of Expression.
In Duval v. Commissioner of Police 1974 MR 130 the Plaintiff is right when he avers that his
freedom of expression had been unreasonably hindered throughout the period specified in his
plaint. The Court declared that the Plaintiff had been unreasonably hindered in his freedom of
expression by the defendant and directed the defendant in future to refrain from so doing. In the
Cie de Beau Vallon Ltd v. Nilkomol 1979 MR 254, an employee had in a note book supplied to
him by his employer to record transactions performed on the employer’s behalf, made
disrespectful and disparaging remarks amounting to insults and defamation of his employer and
other employees. Under section 12 of the Constitution of Mauritius, which deals with the
protection of freedom of expression, the enjoyment of such freedom is subordinated to the
existing law protecting inter alia that the rights and freedoms of other persons must be observed.
In the circumstances of the case, the contract of employment had been properly terminated for
serious misconduct.
CASE STUDY
Section 13 – Protection of freedom of assembly and association.
In Duval v. The Commissioner of Police 1974 MR 130, the defendant had, in the exercise of his
powers under regulation 2 of the Emergency Powers (Control of the press) Regulations 1971 and
regulation 3(a) of the Emergency Powers (control of gatherings) Regulations 1971, made orders
providing for the censoring of newspapers and prohibiting public and other specified gatherings.
The Plaintiff sought a declaration from the Court to the effect that the defendant was wrong to
have interfered in his rights of expression and assembly guaranteed by the Constitution and an
order restraining the defendant from interfering with those rights in the future. The Court held:
(i) The Regulations did constitute a hindrance and to the freedoms protected by sections 12 and
13 of the Constitution.
(ii) It was sufficient for the validity of the Regulations that they contained a reference to section
3 of the ordinance. There was no ground for saying that it was unreasonable or democratic to
make them in the circumstances.
(iii)It was sufficient for the validity of the orders that they made references to the law under
which the Commissioner was making or issuing the instruments. It could not be said in the
circumstances that it was unreasonable to impose censorship on newspapers or to prohibit public
meetings
(iv) (a) Upon the evidence it had not been shown that it was unreasonable for the defendant to
refuse the plaintiff permission to hold a meeting…”
(v) Refer also to the case of Police v Moorba 1971 MR 199.
CASE STUDY
Section 15. Protection of Freedom of Movement.
In Coorbanally v. The Queen 1981 MR 369, the applicant had been granted leave to apply to the
Privy Council from a decision of the Court of Appeal:
(a) Upholding the conviction of the applicant for offences of possession of opium and attempting
to bribe a public officer and
(b) Upholding sentences of 5 years penal servitude and 6 months imprisonment. One of the
conditions of the leave to appeal to the Privy Council was that applicant should not, pending
his appeal, leave the country without an order of the Judge in Chambers.
This is an application for an Order allowing the applicant to leave this country for a period of one
month
.
CASE STUDY
Section 16 – Protection from discrimination
In Jaulim v. DPP MR 1976, p.96, the plaintiff, who was charged with murder before the Court
of Assizes, raised objection to be tried by a jury of men only, as provided by S. 42(1) and (2) of
the Courts Ordinance on the ground that those provisions, by excluding women from jury
service, violated S.3 and 16 of the Constitution, the combined effect of which was to forbid
discrimination by reason of sex, among other grounds.
3.7 The President of the Republic of Mauritius. Chapter IV of the Constitution, 1968 provides
for the election, removal and immunity of the President of the Republic and the Vice-President
of the Republic of Mauritius and are found under sections 28, 29, 30.
CONSTITUTION 1968
Section 28 of the Constitution. The President
(1) There shall be a President, who shall be the Head of State and Commander-in-Chief of the
Republic of Mauritius.
(2) (a)The President shall –
(i) be elected by the Assembly on a motion made by the Prime Minister and supported by the
votes of a majority of all the members of the Assembly; and
(ii) subject to this section and section 30, hold office for a term of 5 years and shall be eligible
for re-election.
(b) A motion under paragraph (a) shall not be the subject matter of a debate in the Assembly.
(3) No person shall be eligible for election to the office of President unless he is a citizen of
Mauritius who is not less than 40 years of age and has resided in Mauritius for a period of not
less than 5 years immediately preceding the election.
(4)Where a person is elected to the office of President, he shall not, whilst in
office, –
(a) hold any other office of emolument, whether under the Constitution or otherwise;
(b) exercise any profession or calling or engage in any trade or business.
(5) The President shall, at the expiry of his term, continue to hold office until another person
assumes office as President.
(6) The office of the President shall become vacant –
(a)subject to subsection (5), at the expiry of his term of office;
(b)where he dies or resigns his office by writing addressed to the Assembly and delivered to the
Speaker; or
(c)where he is removed or suspended from office under section 30.
(7) Where the office of President is vacant, or the President is absent from Mauritius or is for any
other reason unable to perform the functions of his office, those functions shall be performed –
(a)by the Vice-President; or
(b)where there is no Vice-President –
(i)elected under section 29 (2) or (7); and
(ii)able to perform the functions of the office of President,
by the Chief Justice.
(8) The person performing the functions of President under subsection (7) shall cease to perform
those functions as soon as –
(a)another person is elected as President or the President resumes his office, as the case may be;
or
(b)in the case of the Chief Justice, a Vice-President is elected under section 29 (2) or (7) and
assumes office or the Vice-President resumes his office, as the case may be.[Amended 48/91]
Section 29 of the Constitution The Vice-President
(1)Subject to subsection (7), there shall be a Vice-President of the Republic of Mauritius.
(2)The Vice-President shall –
(a)be elected in the manner specified in section 28 (2) (a) (i) and, subject to this section and
section 30, hold office for a term of 5 years and shall be eligible for re-election;
(b)perform such functions as may be assigned to him by the President.
(3)No person shall be eligible for election to the office of Vice-President unless he satisfies the
conditions specified in section 28 (3).
(4)Where a person is elected to the office of Vice-President, he shall not, whilst in office, –
(a)hold any other office of emolument, whether under the Constitution or otherwise;
(b)exercise any profession or calling or engage in any trade or business.
(5)The Vice-President shall, at the expiry of his term, continue to hold office until another person
assumes office as Vice-President.
(6)The office of the Vice-President shall become vacant –
(a)subject to subsection (5), at the expiry of his term of office;
(b)where he dies or resigns his office by writing addressed to the Assembly and delivered to the
Speaker, or
(c)where he is removed or suspended from office under section 30.
(7)(a)Where the office of Vice-President is vacant, or the Vice-President is absent from
Mauritius or is for any other reason unable to perform the functions of his office, those functions
may be performed by such person as may be elected by the Assembly in the manner specified in
section 28 (2) (a) (i).
(b)No person may be elected under paragraph (a) unless he satisfies the conditions specified in
section 28 (3).
(8)The person performing the functions of Vice-President under subsection (7) shall cease to
perform those functions as soon as another person is elected and assumes office as VicePresident or the Vice-President resumes his office, as the case may be.[Amended 48/91]
Section 30 of the Constitution. Removal of the President and the Vice-President
(1)The President or the Vice-President may be removed from office in accordance with this
section for –
(a)violation of the Constitution or any other serious act of misconduct;
(b)inability to perform his functions whether arising from infirmity of mind or body or from any
other cause.
(2)Where the President fails to comply with section 46 (2), he may be removed from office on a
motion made by the Prime Minister in the Assembly and supported by the votes of a majority of
all the members of the Assembly.
(3)The President or the Vice-President shall not be removed from office for any other cause
unless –
(a)a motion that the circumstances requiring the removal of the President or the Vice-President
be investigated by a tribunal is made in the Assembly by the Prime Minister;
(b)the motion states with full particulars the ground on which the removal of the President or the
Vice-President is sought;
(c)the motion is supported by the votes of not less than two-thirds of all the members of the
Assembly;
(d)the tribunal, after its investigation, forwards a written report on the investigation addressed to
the Assembly and delivered to the Speaker and recommends the removal of the President or the
Vice-President; and
(e)subject to paragraph (f), a motion made by the Prime Minister and supported by the votes of a
majority of all the members of the Assembly requires the removal of the President or the VicePresident on a recommendation to that effect by the tribunal;
(f)a motion under paragraph (e) is made –
(i)where the Assembly is sitting, within 20 days of the receipt of the report of the tribunal by the
Speaker;
(ii)where the Assembly is not sitting, within 20 days of the day on which the Assembly resumes
its sitting.
(4)The President or the Vice-President shall have the right to appear and to be represented before
the tribunal during its investigation.
(5)Where the Assembly supports a motion under subsection (3) (c), it may suspend the President
or the Vice-President from performing the functions of his office.
(6)A suspension under subsection (5) shall cease to have effect where –
(a)a report under subsection (3) (d) does not recommend that the President or the Vice-President
ought to be removed from office; or
(b)the Assembly does not support a motion under subsection (3) (e) requiring the removal of the
President or the Vice-President.
(7)Where the Assembly supports a motion under subsection (3) (e) requiring the removal of the
President or the Vice-President, the office of the President or the Vice-President, as the case may
be, shall become vacant.
(8)In this section, “tribunal” means a tribunal consisting of a chairman and 2 or 4 other members
appointed by the Chief Justice from amongst persons who hold or have held office as a Judge of
a court having unlimited jurisdiction in civil or criminal matters in some part of the
Commonwealth or a court having jurisdiction in appeals from such a court.
Section 30A Constitution. Privileges and immunities
(1)Subject to section 64 (5), no civil or criminal proceedings shall lie against the President or the
Vice-President in respect of the performance by him of the functions of his office or in respect of
any act done or purported to be done by him in the performance of those functions.
(2)Subject to section 64 (5), no process, warrant or summons shall be issued or executed against
the President or the Vice-President during his term of office.
(3)The President or the Vice-President shall be entitled –
(a)without payment of any rent or tax to the use of his official residence;
(b)to such emoluments, allowances and privileges, exempt from any tax thereon, as may be
prescribed.
(4)No alteration to any of the entitlements specified in subsection (3) which is to the
disadvantage of the President or the Vice-President shall have effect without his consent.
Section 30B of the Constitution. Oaths to be taken by the President and the Vice-President
(1)A person elected to the office of President or Vice-President or who assumes the functions of
any of those offices shall, before assuming his functions, take and subscribe the appropriate oath
as set out in the Third Schedule.
(2)An oath under this section shall be administered by the Chief Justice.
CASE STUDY
Jayeshwar Raj Dayal v The President of the Republic of Mauritius 1997 SCJ 417, 1997 MR 223
Relying, inter alia, on privileges and immunities enjoyed by the Republic of Mauritius Justice V.
Boolell sitting in Chambers refused to grant an interim order against any of the respondents and
set aside the application.
3.8 The Judiciary. Again, it is the Constitution, 1968 which provides for a Supreme Court with
unlimited jurisdiction in both civil and criminal proceedings. It has two divisions: the Court of
Civil Appeal and the Court of Criminal Appeal (section 80 of the Constitution, 1968) and the
right to appeal to the Judicial committee of the Privy Council (section 81 of the Constitution,
1968). The appointment and removal of judges are found under section 77 and 78 of the
Constitution, 1968. Section 77(1), (2), (3) and (4) of the Constitution provides that:
‘‘Section 77 of the Constitution Appointment of Judges of Supreme Court
(1)The Chief Justice shall be appointed by the President acting after consultation with the Prime
Minister.
(2)The Senior Puisne Judge shall be appointed by the President, acting in accordance with the
advice of the Chief Justice.
(3)The Puisne Judges shall be appointed by the President, acting in accordance with the advice of
the Judicial and Legal Service Commission.
(4)No person shall be qualified for appointment as a Judge of the Supreme Court unless he is,
and has been for at least 5 years, a barrister entitled to practise before the Supreme Court’’.
The Constitution also provides for the post of a Director of Public Prosecutions with immense
‘constitutional’ powers. Section 72(3) of the Constitution provides that:
‘‘(3) The Director of Public Prosecutions shall have power in any case in which he considers it
desirable so to do –
(a)to institute and undertake criminal proceedings before any court of law (not being a court
established by a disciplinary law);
(b)to take over and continue any such criminal proceedings that may have been instituted by any
other person or authority; and
(c)to discontinue at any stage before judgment is delivered any such criminal proceedings
instituted or undertaken by himself or any other person or authority’’.
3.9 Civil Law. One of the branches of law is Civil Law or droit civil. The main source of our
Civil Law is inspired from the Code Napoléon, 1804 which deals with family law, property law,
law of successions, contract law and torts (or droit des obligations) while the procedure is UK
based or inspired. Thus, there are legislations such as the Divorce and Judicial Separation Act,
Successions and Wills Act, Civil Status Act among others which deal with the procedural aspects
of Civil Law in Mauritius. This branch of the law has been dealt in detail within Chapter 6.
3.10 Commercial Law and Business Law. Another important branch of law is Commercial
Law and Business law. They deal with traders and businesses, cheques, bills of exchange,
promissory notes, sociétés commerciales and have been dealt with in Chapter 7 of this manual.
3.11 International law. There are two main divisions in international law. One which is devoted
to public international law (law of the sea, maritime trade, international trade law, law of the
space, international humanitarian law and law of international armed conflicts, international
criminal law) and the other one deals with private international and conflict of law (exequatur).
3.12 Summary. There are different branches of law. There are Civil Law and Public Law which
are subdivided in different branches of the law depending whether it is subdivision of civil law
(Family Law, Wills and Successions, Property Law, Droit de la Vente, Droit des Personnes or
Matrimonial Regime Law) or a subdivision of public law (Constitutional Law, Human Rights
Law, Administrative Law, Droit Domanial Public, Droit des Arts, Banking Law, Construction
Law or Medical Law) or whether it forms part of international law, which again is either public
international law or private international law. It is very rare to have fields or areas of the law
which cover both civil and public law (Labour and Industrial Relations Law for example).
DROIT PRIVE
Droit civil, droit commercial, droit pénal et procédure
pénale
DROIT PUBLIC
Droit Constitutionnel, Droit administratif, droit
financier et fiscal, droit international public
3.13 Conclusion. Universities worldwide lecture law divided into three main branches: civil law,
public law and international law respectively. New modules have appeared recently in various
degrees (Gender Law, Disability Law despite they are also covered under Human Rights Law,
Tourism and Medical Tourism Law or Military Law and Law of Armed Conflicts which also
form part of International Humanitarian Law).
3.14 Further reading
1.Gunputh R.P. La Cour Suprême de l’Ile Maurice
2.Gunputh R.P. Traité de Droit Civil
3.Gunputh R.P. Treatise on Criminal Law
4. R.P.Gunputh (2009). The burgeoning of the EPAs-EU’s negotiations: Probable impacts on the
SADC Configuration and some key factors for enhancing trade liberalization and development
in the Indian Ocean, published by the University of Mauritius, Research journal, ISBN: 97899903-73-27-1. E-book
3.15 Activities
1. What are the different branches of law?
2. Why is it important to have different branches of law?
3. What is the importance of law especially in a mixed system?
•••• •••• ••••
UNIT 4 – SOURCES OF LAW
4.1
Overview.
The purpose of this unit to examine and analyse the various sources of law in Mauritius.
4.2
Learning Objectives.
By the end of this unit, the students will be able to know the four main sources of Mauritian
Law. Students will also be able to know what legal rule will be applicable in a given situation.
4.3
Historical background of the sources of Law in Mauritius.
As discussed in the part on the historical background of Mauritian Law, Mauritius inherited its
laws from its former colonial administrators who were the French and the British.
The substantive part of Mauritian Law, which consists of the Civil Code, the Criminal Code and
the Code de Commerce, are derived from the French Codes which were applicable in the country
during the period of French settlement in the island.
When the French left, the British took over Mauritius and instead of removing the use of these
Codes, they kept their application. Concerning the adjectival part of Mauritian law, this is
derived from English law. The Constitution of Mauritius for instance, is based on the
Westminster Model. Other laws, for example the laws related to finance, trade, companies, the
law of procedure and evidence, are all derived from English law. Moreover, the Court structure
of Mauritius as well as its remedies are of Common law inspiration.
What is interesting to note is that Mauritius does not follow entirely the Common law structure
nor the Civil Law structure. Over the years, Mauritius has been able to combine both systems
which resulted in a third stream of law which is the Mauritian law.
4.4
Sources of Law in Mauritius.
There are four main sources of law in Mauritius. These sources of Mauritian Law are:
(i) Legislation
(ii) Judicial Precedents
(iii) Customs
(iv) Writing of Jurists and General Principles of Law.
4.4.1 Legislation
The legislation is the most important source of law in Mauritius. Under the legislative structure
of the island, there is a hierarchy of legislative norms which is divided as follow:
(a) The Constitution
(b) Primary/Secondary legislation.
(a)
The Constitution
The Constitution of Mauritius is the supreme law of the land. Article 2 of the Mauritian
Constitution reads as follow:
“This Constitution is the supreme law of Mauritius and if any other law is inconsistent with this
Constitution, that other law shall, to the extent of the inconsistency, be void.”
Article 1 of the Constitution asserts the existence of Mauritius and proclaims the kind of State
that the country is. Article 1 reads as follow:
“Mauritius shall be a sovereign democratic State, which shall be known as the Republic of
Mauritius.”
Chapter II of the Constitution provides for the Fundamental Rights and Freedoms of the
individual in Mauritius. If anyone feels that his or her Constitutional rights have been breached,
the person can apply to the Supreme Court of Mauritius to find redress. Vide the cases of:
Mahadewoo v. the State 2015 SCJ 177, Ah Sue v. The State of Mauritius 2015 SCJ 110 and
Darmalingum v State 2000 MR 210.
Moreover, the Constitution provides for the existence of the three main branches of Government
which are the Parliament (Chapter V), the Executive (Chapter VI) and the Judiciary (Chapter
VII).
(b)
Primary/Secondary legislation
Under Article 45 of the Constitution, Parliament is granted the power to make laws for the peace,
order and good government of Mauritius. Examples of laws, also known as Acts of Parliament
are: Financial Services Act 2007, Good Governance and Report Integrity Act 2015, The
Dangerous Drugs Act 2000.
The Acts passed by Parliament are known as Primary Legislation. Before Acts are passed, they
exist under the form of Bills of Parliament. For the Bills to become Acts of Parliament, they
require the signature of the President of the Republic. (Article 46(1) of the Constitution).
It has to be highlighted that any laws made by Parliament should be in conformity with the
Constitution, if not, that law shall to the extent if its inconsistency, be void. (Vide Article 2 of the
Constitution. Police v Fra (1975) MR 157 or Vellevindron v R (1973) MR 245).
Secondary Legislation are the Rules and Regulations that are enacted by Ministers, Local
Councils or Public Authorities to whom Parliament has delegated law making powers. For
example Section 118 of the Constitution allows Commissions and Tribunals to make regulations
for their good functioning. It has to be noted that Article 122 of the Constitution grants
Parliament the power to exercise control over secondary legislations.
4.4.2
Judicial Precedents
The case of DPP v Mootoocarpen (1988) MR 195 is the authoritative case which asserts the
position of case law as a source of law in Mauritius. In that case, the Supreme Courts affirmed
that:
“It is quite clear that if a treatise were to be written on Mauritian Law, the sources of our law
would not be limited to statute but would have to include case-law”.
A case law, refers to the decision or ruling of a case. In writing their decisions, judges will give
the reasoning for reaching such a decision by citing other cases and interpreting the relevant laws
linked to the case. Case law are often referred to as Judge-made laws.
In Mauritius, decisions of the Supreme Court are binding on inferior courts and sometimes the
decision is binding on the Court itslef. Moreover, it has to be noted that, not the whole decision
given in a particular case is binding and become a precedent. It is the ratio decidendi of the case
which constitute the binding precedent.
A ratio decidendi refers to the legal principle upon which a decision is based.
The use of case law as a source of law in Mauritius helps with the interpretation of statutes.
Judicial precedents help in the interpretation of laws as well as indicate which provisions of the
law apply to a particular situation.
In some circumstances, Courts in Mauritius do make reference to cases of other jurisdictions.
Since some of the laws present in Mauritius are inspired from French or English law, a Mauritian
Court may have recourse to the decision of a French or English Court which previously
interpreted that law. Vide the cases of: The Queen v L’Etendry (1953) MR 15, Rault v The
Returning Officer for the Electoral Area of Stanley (1959) Mr 43 and D’Emmerez de Charmoy v
Chenard (1909) MR 24.
4.4.3 Customs
Customs are the third source of Mauritian law. Customs refer to the practices or behaviours that
can be associated to a particular society. For a custom to be established as law, it should satisfy
two main requirements which are: (a) A material element and (b) An intellectual element.
(a) Material Element.
The material element of a custom is linked to the fact that there must be a certain practice which
is constant and consistent for a considerable length of time. This is sometimes referred to as
Repetitio.
However, what amounts to a considerable length of time is sometimes interpreted on a case to
case basis by Courts. (Vide the case of Pipon Adam & Co. v Chapuy (1879) MR 104).
(b) Intellectual Element.
The intellectual element, also referred to as Opinio Necessitatis, means that the people adopting a
particular practice or custom should feel legally obliged to do so.
There are different forms of customary rules which are:
-
Custom Secundum Legem
These are the customs that a legislator will expressly indicate to govern a particular situation.
(Article 593 of the Civil Code).
-
Customs Praeter Legem
These are customs that appear in areas where the law is in constant process of development, for
example, business or commercial law.
-
Custom Contra Legem
These are customs which are against the law.
4.4.4 Writing of Jurists and General Principles of law
In Carbonel, Bourdin Fils & Co v Letellier & ors (1861) MR 51, the Supreme Court of
Mauritius stated the following:
“… in this, as in every other case, where questions are raised on the Civil Code, we are in the
habit of resorting to the… writings of the eminent lawyers of the country which gave it birth”.
For years, it has been a practice in Mauritian Courts to make reference to the writings of scholars
and jurists to interprete the law. The writings of jurists can help Judges to interprete the law
where the language used to draft the law may be difficult to understand or confusing.
Moreover, several general principles of law, for example, l’enrichissement sans cause, action de
in rem verso, corporate personality and various other legal principles have been used and
interpreted by Courts in Mauritius.
UNIT 5 – COMMON LAW AND EQUITY
5.0
Learning objectives.
At the end of this unit you must be able to understand:
• The different sources of law
• Common law as a source of law
• Equity as a source of law
• The origin of different sources of law in Mauritius
5.1
The Common Law.
In U.K common law is one of the main sources of law. However, in modern times, the UK
legislator has passed a number of legislations. The term “common law” is thus used to denote
rules derived from decisions of the superior courts in contrast to those derived from statute.
Common law. Source: Paul Denham, Law, A Modern Introduction, 4th Edition, pp.42-43,
Hodder & Stoughton, 2002. In that sense it was possible to view the common law as a collection
of general customs nationally applied. In fact it was far more likely that judges arrived at their
own conclusions; it was they who made up the law, using their makers in their own right. From
early days, however, the courts imposed certain tests in order that a local custom could be
recognized by the judges as part of common law. In practice customs that dated from after 1189
were still often accepted by the courts.
The others are rules of “equity” which means laws, provisions of law that are just and fair,
ethical and is equivalent to natural justice and morality. In Mauritius in the case of Regina v
Shummogum 1977 MR 1, the court considered that whenever we borrow a piece of legislation
from French or English law it ceases to be French law or English law and becomes Mauritian
law. As an illustration, the Law of Evidence is based on Common Law (however, it is important
to note that in the case of Bérenger v Goburdhun 1985 MR 209, the court held that the Supreme
Court would not apply English rules blindly) despite the fact that, once more, the law of evidence
is now made statutorily. As an illustration The Courts Act, 1945 and The Criminal Procedure Act
contain relevant enactments on the law of evidence. For example, corroboration is required as a
matter of law (section 124 of the Road Traffic Act), competence and compellability of witness is
also made statutory (section 184 of the Courts Act, 1945) or the character of the accused (section
184(2)(f) of the Courts Act, 1945), which is also made statutory in Mauritius. Common law also
includes rule of precedents, customs and ancient legislations.
Section 124 Road Traffic Act 1963 Exceeding speed limit
(4)(a)Any person who drives a motor vehicle on a road at a speed exceeding a prescribed speed
limit shall commit an offence and shall, on conviction, be liable to a fine not exceeding 5,000
rupees or, in the case of a third or subsequent conviction, to a fine not exceeding 10,000 rupees.
(b)An offender under paragraph (a), shall not be liable to be convicted solely on the evidence of
one witness to the effect that, in the opinion of that witness, the offender was driving the vehicle
at any particular speed.
Section 184 Courts Act Competency of witnesses in criminal cases
2 (f)A person charged and called as a witness in pursuance of this Sub-Part shall not be asked,
and if asked shall not be required to answer, any question tending to show that he has committed,
or been convicted of, or been charged with, any offence other than that with which he is then
charged, or is of bad character, unless –
(i)the proof that he has committed or been convicted of such offence is admissible evidence to
show that he is guilty of the offence with which he is then charged;
(ii)he has personally or by his advocate asked questions of the witnesses for the prosecution with
a view to establish his own good character, or has given evidence of his own good character, or
the nature or conduct of the defence is such as to involve imputations on the character of the
prosecution or the witnesses for the prosecution; or
(iii)he has given evidence against any other person charged with the same offence.
5.2
Equity and Trust.
Common law had a serious defect that it consisted of rigid rules that sometimes worked hardship
and there was nothing, which the common law courts themselves, could do to ameliorate such
hardship. In England, equity was a branch of law, which, before the Judiature Acts 1873 and
1875 was applied and administered by the Court of Chancery.
Equity and common law. Mohamed Ramjohn. Unlocking trusts. Chapter 1, p.1, Hodder
Arnold, 2005.The expressions ‘equity’ and ‘rules of equity’ were synonymous with rules of
justice and conscience. Accordingly, the principles originally applied by Lord Chancellors to
determine disputes were based on rules of natural justice or conscience. These principles became
known as equity. Today, it would not be accurate to correlate ‘equity’ with ‘justice’, for rules of
equity have become settled in much the same way as the common law’’.
Equity. Source: Paul Denham, Law, A Modern Introduction, 4th Edition, p. 66-67,Hodder &
Stoughton, 2002. The first rule that equity established was that ‘equity follows the law’, that is
that where there was a clear rule of law, then the law must be applied. Where there was no clear
rule, then equity could intervene to enable a just result and consequently developed a new and
parallel set of rules. This development occurred predominantly in matters relating to trusts, wills,
land and the wardship of children…Equitable remedies appear to be capable of limitless
expansion and adaptation to modern needs, as shown in the matter of Mareva injunctions and
Anton Pillar orders…Today, therefore, equitable remedies are applied equally in matters of
property and trusts and tort and contract, the sort of issues that the Chancery and Queen’s Bench
Divisions of the High Court handle. Two examples of equitable remedies are promissory
estoppels which is a rule of contract law and equitable execution which is a rule of law that may
be applied in bankruptcy hearings. The application of equitable remedies is at the discretion of
the court. They will be used if the court thinks it fair, reasonable and just to do so, having replied
to al the circumstances of the case. Equity means in a wider sense simply justice, fairness,
reasonableness. If something is inequitable, it is unfair and unjust.
Owing to the doctrine of precedent its declarations of law are irrevocable except by a higher
court. So, consequently an alternative means of providing a gloss on the common law was
required and this led to the evolution of a second major source of English Law known as
“equity” through in continental systems equity is purely conceptual (it is almost a synonym for
‘‘natural justice’’). In England this is not the case. In England equity does not mean natural
justice as these rules were created to remedy injustice in the common law. As far as equity is
concerned in Mauritius, section 16 of the Courts Act provides that the Supreme Court shall be a
Court of Equity vested with power, authority and jurisdiction to administer justice, and to do all
acts for the due execution of such equitable jurisdiction, in all cases where no legal remedy is
provided by an enactment.
Courts Act, 1945. Section 16 Supreme Court – a Court of Equity
The Supreme Court shall be a Court of Equity vested with power, authority and jurisdiction to
administer justice, and to do all acts for the due execution of such equitable jurisdiction, in all
cases where no legal remedy is provided by any enactment.
In Mauritius, the Mauritian legislator has passed the Trusts Act 2001. What is a trust or how is it
defined?
According to Underhill A. and Hayton, D, Law of Trusts and Trustees (16th edn., Butterworths,
2002, p.1): ‘‘A trust is an equitable obligation, binding a person (called a trustee) to deal with
property over which he h has control (which is called the trust property) for the benefit of
persons (who are called the beneficiaries or cestuis que trust) of whom he may himself be one,
and any one of whom may enforce the obligation’’.
Trust Act 2001. Section 3. Existence of trust
(1)For the purposes of this Act, a trust exists where a person (known as a "trustee") holds or has
vested in him, or is deemed to hold or have vested in him, property of which he is not the owner
in his own right, with a fiduciary obligation to hold, use, deal or dispose of it (a)for the benefit of any person (a "beneficiary"), whether or not yet ascertained or in existence;
(b)for any purpose, including a charitable purpose, which is not for the benefit only of the
trustee; or
(c)for such benefit as is mentioned in paragraph (a) and also for any such purpose as is
mentioned in paragraph (b).
(2)Notwithstanding articles 893, 896, 931 and 1130 of the Code, property and rights may be
transferred to or vested upon trust in accordance with this Act.
There are different types of trusts: charitable trusts, private purpose trusts (to provide a cup for a
yacht race for the winner for example), secret trusts and mutual wills, constructive trusts,
resulting trusts and discretionary trusts.
5.3
Conclusion.
Mauritius has inherited various sources of law both from England and France. However, some
legislations which are inspired or borrowed from England are very often amended to suit them to
our Mauritian law. It is is this way that Mauritian law is very rich in legislations and they are
interpreted as per rules of interpretation, maxims of interpretation or dictionary meaning.
5.4
Summary.
There are various sources of law in Mauritius. Common law was too rigid and was constantly
replaced by equity. Actually, various procedures are also based on equity. Injunctions, which re
very common in England, are also applicable in Mauritius. The law of trust is also made
statutory in Mauritius (Trusts Act).
5.5 Activities
1. Explain what are the different sources of law of Mauritius?
2. Explain why common law has been replaced by equity?
3. What are the different types of injunctions?
5.6 Further Reading
Denham P. (2000), Law, A modern Introduction, 4th Edition, Hodder & Stoughton
Huxley-Binns R. and Martin J. (2006), Unlocking The English Legal System, hodder Arnold
UNIT 6 – CIVIL AND CRIMINAL PROCESS
6.1
The impact of the dual legal judicial system
The chapter pertaining to the Court structure has exposed the different subordinate and superior
Courts operating in the Mauritian Legal system. The impact of this structure also means that the
Mauritian Courts have competency to try civil and criminal cases. The first part of this chapter
presents the civil jurisdiction of the different Courts. The second part will be dealing with the
Courts competent in criminal matters.
6.2
Civil process
This section explains the jurisdictions of the different Courts as far as civil matters are
concerned.
6.2.1 The jurisdiction of District Courts in civil cases
The District Court has jurisdiction in civil matters where the sum claimed or matter in dispute
does not exceed the prescribed amount which is Rs 50000.
According to section 5(1) of the District and Intermediate Courts (Civil Jurisdiction) Act, the
District Court competent to hear the case is the one where the defendant or one of the defendants
dwells or carries on his business in the district at the time of the action brought, or, where any
immovable property is the subject matter of the suit, in the district in which such property is
situate either in whole or in part.
Note that, by leave of the Magistrate, a case can also be lodged in a district where the defendant
or one of the several defendants has dwelt or carried on business at any time within the 6 months
before the action brought or in which the cause of action has arisen in whole or in part.8 Where
such leave is granted, the District Court shall have jurisdiction as fully as if the defendants or
every one of several defendants dwelt or carried on business within the district at the time of the
action brought.
Section 104A of the Courts Act provides that where the sum claimed or matter in dispute does
not exceed Rs 25000 and the case has been lodged under Part IIA of the District and
Intermediate Courts (Civil Jurisdiction) Act, the case will be heard and determined in accordance
with the 'Small Claims Procedure' set out under that part.
The District Court has exclusive jurisdiction in matters of landlord and tenant, irrespective of the
value of the property lent (except the fixing of a fair rent, which is determined by The Fair Rent
Tribunal). The District Court can also hear claims for alimony11 and it has jurisdiction in
possessory actions.
6.2.2 Civil Jurisdiction of the Intermediate Court
According to section 104(1) of the Courts Act, the Intermediate Court shall have jurisdiction in
all civil cases where the sum or matter in dispute does not exceed the prescribed amount, that is
Rs 500000.
Section 80(2) of the Courts Act provides that the civil jurisdiction of the Intermediate Court shall
extend to Rodrigues.
It is to be noted that, by virtue of section 111(2) of the Courts Act, the Intermediate Court shall
have no jurisdiction in actions for payment of alimony or possessory actions.
Original Jurisdiction of the Supreme Court in civil matters
Section 17 of Courts Act inter alia provides that the Supreme Court shall have full original
jurisdiction to hear, conduct and pass decisions in civil suits, actions, causes, and any matters
that may be brought and may be pending before the Supreme Court.
The Supreme Court can try any civil case, whatever be the residence of the plaintiff or defendant.
Where the sum or matter in dispute exceeds Rs 500000, the case can only be heard and
determined by the Supreme Court.
Any action or suit for divorce, judicial separation, interdiction of persons, or in matters of
bankruptcy, or in any action where the civil status of any person, or any right of an inheritance,
or where the validity of any will or other testamentary instrument, or any donatio inter vivos is
disputed, can only be entertained by the Supreme Court [section 111(1) Courts Act].
A case before the Supreme Court is generally heard and disposed of by a single Judge (section
35 of the Courts Act). The Chief Justice may, either proprio motu or on application in writing
made to him by any party to a case stating the reasons for such application, direct that any case
shall be heard by two or more Judges, having regard to the magnitude of the interests at stake or
the importance or intricacy of the questions of fact or law involved.
6.2.3 Appellate Jurisdiction of Supreme Court in Civil Proceedings
The Supreme Court hears appeals as of right from decisions of subordinate courts. Appeals are
heard by at least two Judges (section 70 of the Courts Act).
Court of Civil Appeal
The Court of Civil Appeal, which is a Division of the Supreme Court [section 2(2) of the Court
of Civil Appeal Act], hears appeals from decisions of one Judge of the Supreme court sitting
alone.
The Court of Civil Appeal is constituted by two or three Judges of the Supreme Court. The Chief
Justice, or where he is absent or for any reason unable to sit on the Court of Civil Appeal, the
Senior Puisne Judge, presides over the Court of Civil Appeal (section 2(4) of the Court of Civil
Appeal Act).
6.3
Criminal Process
The procedure as to which Court is competent in criminal cases is completely different from civil
cases. Each Court has specific competencies.
6.3.1 The different competences of District Courts in criminal cases
The District Court has territorial jurisdiction, in that it can only try offences committed in its
district. Subsections 1 to 3 of Section 124 of the District and Intermediate Courts (Criminal
Jurisdiction) Act provides that where an offence has been committed partly in one district and
partly in another, or where the offence is committed in any harbour or arm of the sea or other
water which forms the boundary between or is adjacent to 2 districts, or where an offence has
been committed near the boundary between two districts and it is doubtful in which of the 2
districts the offence was committed, the prosecution may take place in either district. According
to section 124(4) of the Act, where a person is charged with having been an accomplice in the
commission of an offence, the prosecution may take place in the district in which the offence
was committed.Section 116 of the Courts Act excludes certain offences from the summary
jurisdiction of the District Court.
Section 114(1) of the Courts Act provides that a District Court before whom any person is
charged with having committed an offence, not being one of the offences mentioned in section
116, shall have power and jurisdiction to hear, try and determine the charge and all questions of
fact and law arising in the case and to convict the person, and on conviction, to award against
him any penalties not exceeding the maximum penalties applicable to the offence of which the
person is convicted. Section 114(2) further provides that the maximum penalty that can be
imposed on an accused by a District Magistrate is a fine of Rs 10000 and two years
imprisonment.
The wording of section 114 implies that there are many cases where the maximum penalty is
more than 2 years imprisonment or more than Rs 10000 fine, which the Magistrate has
jurisdiction to try. But the Magistrate in trying these cases must not impose a penalty exceeding
the maximum allowable.
6.3.2 Preliminary Inquiry and Commit for Trial
Section 115 of the Courts Act provides that where upon the hearing of an offence within his
jurisdiction, the District Magistrate is of opinion that the offence deserves a punishment which is
beyond his jurisdiction or that the evidence discloses another offence which is not within his
jurisdiction, the Magistrate may, with the consent of the Director of Public Prosecutions (DPP),
proceed to hold a preliminary inquiry.
According to section 44 of the District and Intermediate Courts (Criminal Jurisdiction) Act,
where a person is before a Magistrate, on a charge of having committed an offence for which the
Magistrate has no jurisdiction to convict under section 116 of the Courts Act (which are matters
excluded from summary jurisdiction), the Magistrate may inquire into the charge and commit the
party charged for trial before the Supreme Court (to be tried by a Judge and a jury of nine
persons). He may in the alternative order that the accused party be discharged, if he is of opinion
that the evidence is not sufficient to put the accused party on trial for any offence.
Judicial Inquiries
When a person has died of a violent or suspicious death, a District Magistrate may, pursuant to
section 111 of the District and Intermediate Courts (Criminal Jurisdiction) Act, hold a Judicial
Inquiry into the cause of the death and circumstances connected with it, and report his findings to
the DPP. Such an inquiry must be held in open court.
Section 112 of the District and Intermediate Courts (Criminal Jurisdiction) Act provides that a
similar inquiry shall be ordered by the DPP where a person has suffered some grievous bodily
injury in consequence of a crime or accident or where the death of a person may have been due
to unnatural causes.
According to section 64(1) of the District and Intermediate Courts (Criminal Jurisdiction) Act,
the DPP may require a Magistrate to proceed to inquiry and examination into any offence,
whether or not such offence is one of the offences mentioned in section 116 of the Courts Act,
and whether or not such offence was committed within his district.
Under section 2(1) of the Fire Inquiry Act, the DPP may require, where a house or building has
been burnt down or damaged by fire, the District Magistrate of the district within which the
property burnt down or damaged is situate to proceed to a judicial investigation into the cause of
such fire. A judicial investigation can also take place on an application made by any company of
insurance, underwriters, or persons suffering prejudice from such fire.
6.4
The Bail and Remand Court
The Bail and Remand Court is established under section 18(1) of the Bail Act, which provides
that it shall be a court of record and have an official seal.
According to section 19 of the Bail Act, the question whether a defendant or a detainee shall be
released on bail or remanded in custody shall, except where the question arises in the course of
proceedings before another court or it is otherwise impractical to do so, lie within the exclusive
jurisdiction of the Bail and Remand Court.
Section 55 of District and Intermediate Courts (Criminal Jurisdiction) Act thus provides that a
District magistrate may at any time pending a preliminary inquiry discharge the accused and
permit him to remain at large, on his entering into a recognizance with or without sureties for
such sum as the Magistrate shall fix.
By virtue of section 20 of the Bail Act, a defendant or detainee, who is in custody, may be
ordered to appear before the Bail and Remand Court through such live video or live television
link system as may be approved in writing for the purpose of any proceedings by the Chief
Justice in relation to an application for his release on bail or an extension of his remand in
custody.
6.5
The Juvenile Court
The Juvenile Court, which is established by section 3(1) of the Juvenile Offenders Act13, hears
charges against persons under the age of 18.
Section 3(4)(a) of the Juvenile Offenders Act provides inter alia that every Magistrate sitting in
the juvenile court and before whom any juvenile is charged with having committed an offence,
other than an offence under sections 50 to 76, 216 to 223, 228(3) and 229 of the Criminal Code,
shall power and jurisdiction, in whatever district the offence has been committed, and whatever
may be the minimum punishment imposed by law with respect to the offence so charged, to hear,
try and determine the charge and all questions of fact and law arising in the case and to convict
the juvenile.
By virtue of section 4 of the Juvenile Offenders Act, proceedings against juveniles, that is
persons under the age of 18, cannot be heard in other courts except:
(a) in the case of the offences listed in section 3(4) of the Act, that is offences under sections 50
to 76 (relating to offences against the State), sections 216 to 223 (murder, manslaughter, murder
of a newly born child and infanticide), sections 228(3) and 229 (wounds and blows causing death
without intention to kill) of the Criminal Code;
(b) where a charge has been laid jointly against a juvenile and a person who has attained the age
of 18;
(c) where a person who has attained the age of 18 is charged at the same time as the juvenile with
aiding, abetting, causing, procuring or permitting the offence with which the juvenile stands
charged; and
(d) applications for bail and remand.
Section 5 of the Juvenile Offenders Act provides that the juvenile Court shall sit either in a
different building or room from that in which sittings of a non-juvenile court are held or on
different days from those on which sittings of such other courts are held. And section 6(3)
provides that no person shall be present at any sitting of a juvenile court [that is the proceedings
are to be conducted in camera] except (a) members and officers of the court;
(b) parties to the case before the Court, their attorneys, barristers, witnesses and other persons
directly concerned in that case; (c) bona fide representatives of the newspapers or news agencies
and (d) such other persons as the court may specially authorise to be present.
Although journalists are admitted to the Juvenile Court, there are restrictions on reports as
provided in section 7 of the Act.
Note that section 7(1)(a) of the Act provides for the separation of juveniles from adults and that
section 13(1) of the Act provides for the attendance of the Juvenile's parent as far as practicable.
The Act provides for restrictions on punishment of juveniles. Section 15(1) is to the effect that a
juvenile under the age of 14 shall not be ordered to be imprisoned or sentenced to penal servitude
for any offence, or be committed to prison in default of payment of a fine, damages and costs.
According to section 15(2) a young person (that is a juvenile who has attained 14, but is less than
18) shall not be ordered to penal servitude for any offence.
Section 3(4)(b) of the Act provides that no Magistrate shall inflict on any young person
imprisonment with or without hard labour for more than one year or any fine exceeding Rs 1000.
According to section 15(3), a young person shall not be ordered to be imprisoned for any
offence, or be committed to prison in default of payment of a fine, damages or costs, where he
can be suitably dealt with in any other way, whether by recognizance to be of good behaviour
and to appear for sentence when called upon, by committal to a place of detention, industrial
school or otherwise. Section 15(4) provides that a young person sentenced to imprisonment or
committed to prison in default of payment of a fine, damages or costs, shall not, as far as is
practicable, be allowed to associate with adult prisoners.
Section 17 of the Act provides for the court to order custody in a place of detention provided
under the Act in lieu of imprisonment where no other method of dealing with the juvenile is
appropriate.
6.5
Competency of the Intermediate Court in Criminal cases
The Intermediate Court may try any of the offences referred to it by the DPP under section
112 of Courts Act:
(a) any offence which a District Magistrate has jurisdiction to try;
(b) any offence triable in Rodrigues or any island under the jurisdiction of the State of
Mauritius other than the island of Mauritius;
(c) any offence specified in section 117: section 117 of the Courts Act, entitled 'referral of cases
by DPP', provides that, notwithstanding section 116, where a person is charged with any of the
offences provided for by sections 77 (abuse of authority by public officer), 79 (public officer
flouting claim of illegal detention), 124 (extortion by public officer), 126 (officer of a public
body accepting bribe), 127 (bribery provoking serious offence), 128 (bribery of officer of a
public body) and 214 (binding person to engage in breach of public order) of the Criminal Code,
the DPP may either before or after commitment of the accused, authorise the Magistrate to
entertain the case and to proceed to adjudication thereon, and thereupon the Magistrate may try,
acquit or convict the person charged with the offence;
(d) any offence under sections 104 [altering Government mark], 122 [embezzlement and larceny
by public officer or notary], 123(2) [embezzlement and larceny of deed by public officer], 228(3)
and (4) [causing death without intention to kill], 235 [abortion], 239(1) [involuntary homicide],
249 (1) (4) and (5) [rape and illegal sexual intercourse], 251 [debauching youth], 257 [bigamy],
283 [sedition], 284 [inciting to disobedience or resistance to law], 291 [criminal intimidation]
and 346 [arson] of the Criminal Code;
(e) any offence under the Forests and Reserves Act 1983;
(f) any offence declared triable by the Intermediate Court under any other enactment.
The Intermediate Court has jurisdiction to inflict the penalties and forfeitures specified in the law
applicable to the offence charged [section 113(1) Courts Act]. Section 113(2)(a) of
Courts Act provides that the Intermediate Court shall not award against any person penal
servitude for more than eight years or imprisonment for more than five years. Section
113(2)(b) of the Courts Act further provides that in the case of a persistent offender16, if the
Intermediate Court is satisfied that, by reason of his previous conduct and of the likelihood of his
committing further offences, it is expedient to protect the public from him for a substantial
period, the court may increase the sentence to 12 years penal servitude.
It is to be noted that, according to section 113(2)(a) of Courts Act, an enactment may nonetheless
confer on the Intermediate Court the power to inflict a longer sentence of penal servitude or
imprisonment than that provided by the Courts Act [see eg section 41(3) of the Dangerous Drugs
Act].
6.6
Original Jurisdiction of the Supreme Court in Criminal Matters
Certain offences can only be tried by the Assizes Court, consisting of a Presiding Judge and a
Jury of nine persons.
In cases of drug offences, such as importation of drugs, the offender is tried by a Judge of the
Supreme Court alone, without a Jury.
Offences under the supplies laws and the Fair Trading Act can be heard by a Judge of the
Supreme Court sitting alone. Section 28 of the Consumer Protection (Price and Supplies
Control) Act (Act No. 12 of 1999) purports to establish a Profiteering Division of the
Supreme Court, which would have exclusive jurisdiction to try any person charged under the Act
and the Fair Trading Act.
6.7
Appellate Jurisdiction of Supreme Court in Criminal Proceedings
The Supreme Court hears appeals as of right from decisions of subordinate courts.
The Court of Criminal Appeal, which is a division of the Supreme Court and constituted by three
Judges, hears appeals from decisions of the Assizes.20 The Chief Justice, if present, and in his
absence the Senior Puisne Judge of the Supreme Court for the time being, shall be president of
the Court.
UNIT 7 – ORGANISATION OF COURTS
7.1
The Court structure
The judiciary is the third arm of government within the Mauritian Legal system. Members of the
judiciary i.e. Magistrates or Judges of the Supreme Court are expected to deliver judgments in a
completely impartial manner through strict application of the law, without allowing their
personal preference, or fear or favour of any parties to the action, to affect their decision in any
way. The judiciary must be able to discharge its primary duty to maintain a fair and effective
administration of justice.
In order to allow the judiciary to work expediently the legal system must provide a relevant and
suitable framework. The judiciary cannot operate independently if the legal system does not
provide for the Rule of Law and the doctrine of Separation of Powers
7.2
Rule of Law
The guardian of the Rule of Law in the Mauritian context is the President of the Republic of
Mauritius. Section 28(1)(i) of the Constitution provides the following:
Section 28 of the Constitution: The President
(1) There shall be a President who shall - be the Head of State and Commander-in-Chief of the
Republic of Mauritius; uphold and defend the Constitution and ensure that –
(i) the institutions of democracy and the rule of law are protected;
Despite the fact that the Mauritian Constitution implicitly acknowledges the Rule of Law, it does
not however define the Rule accordingly. The best definition has been given by the late English
constitutional lawyer AV Dicey. According to Dicey there are three ways of explaining the Rule
of Law.
a) No arbitrariness. The extent of the State’s power, and the way in which it exercises such
power, is limited and controlled by the law. Such control is aimed at preventing the State
from acquiring and using wide discretionary power, for, as Dicey correctly recognised,
the problem with discretion is that it can be exercised in an arbitrary manner; and that
above all else is to be feared, at least as Dicey would have us believe.
b) Equality before the law. The fact that no person is above the law, irrespective of rank or
class. This was linked with the fact that Civil Servants of the State are subject to the same
law and legal procedures as private citizens.
c) Supremacy of ordinary law. This is related to the fact that the English Constitution was
the outcome of the ordinary law of the land and was based on the provision of remedies
by the Courts rather than on the declaration of rights in the form of a written constitution.
As far the Mauritian context is concerned the third limb is outdated as there is a written
constitution which provides for the protection of fundamental rights.
7.3
Doctrine of Separation of powers
The doctrine of separation of powers was the devised by a French author called Montesquieu in
his treaty, “L’esprit des Lois” 1748. The basis of this doctrine means that the three arms of
government such as Executive, Legislature and Judiciary must work independently and
separately. The idea is that these institutions must work separately in order to avoid abuse of
power. Montesquieu’s approach to the doctrine of separation of powers refers to its strict
application. An example of this strict application of the doctrine is in the USA.
In the Mauritian context this doctrine has a different application. For example Cabinet also sits at
the National Assembly. It can be referred to as a soft application of the doctrine of separation of
powers. The Supreme Court has qualified this doctrine as a juxtaposition of powers. More
particularly in criminal cases, the accused must be judged by an independent judiciary.
After having briefly presented as to how the judiciary can act as an independent arm of
government, the Court structure will now be presented. Students need to bear in mind that the
Court system to be effective in its duties must have a suitable structure. Also the different Courts
adjudicating cases in Mauritius are Courts that have been set up by law.
7.4
The singular dual judicial system
Mauritius consists of a singular dual judicial system. This single-structured system means that
there are subordinate Courts and Superior Courts.
7.5
The subordinate Courts
The subordinate Courts comprises of the District Courts, Court of Rodrigues and Intermediate
Court
District Courts
Section 93(1) of the Courts Act is to the effect that there shall be a court in every district to be
known as a District Court. It is also provided that the District Court shall be a court of record.
The District Court has civil and criminal jurisdiction in such causes and matters and to such an
extent as are provided by Part III of the Courts Act.
The Chief Justice may, by virtue of section 93(2) of the Courts, by regulations, declare that any
District Court shall sit in 2 or more divisions and may determine the name by which every
division shall be known (eg Port Louis, Plaines Wilhems).
Other Functions of the District Magistrate
- The District Magistrate as Licensing Authority: see section 2 of the Excise Act.
- As regards building Permits: see section 58 of the Building Act.
- By virtue of the Protection from Domestic Violence Act, the District Magistrate is empowered
to issue a protection order, an occupation order or a tenancy order.
7.6
The Court of Rodrigues
While the Magistrate for Rodrigues shall within Rodrigues have the same powers and
jurisdiction as are conferred on every District Magistrate in Mauritius, section 12 of the Court of
Rodrigues Jurisdiction Act confers further jurisdiction on this Court. It vests the Magistrate for
Rodrigues with jurisdiction to hear and dispose of any of the offences which, in Mauritius, would
upon a reference by the DPP, be cognizable by the Intermediate Court.
The Magistrate for Rodrigues can impose, for such offences, the same penalty as could be
imposed by the Intermediate Court.
Under section 81(3) of the Courts Act, the Chief Justice may direct that a civil case lodged
before the Intermediate Court be tried in Rodrigues. He may still direct one or more magistrates
to try the case14; the magistrates shall have the same powers and jurisdiction as those conferred
on a Magistrate of the Intermediate Court.
Under the Additional Remuneration Acts, as well as under the End of Year Gratuity Acts, the
Magistrate for Rodrigues has been conferred exclusive jurisdiction to hear and determine any
civil or criminal proceedings arising under these enactments in Rodrigues.
7.7
The Intermediate Court
The Intermediate Court was established in 1960, when the Bench of Magistrates was converted
into the Intermediate Criminal Court. In 1971, the Intermediate Court was also afforded civil
jurisdiction.
Section 80(1) of the Courts Act provides that the Intermediate Court shall be a court of record,
which shall have civil and criminal jurisdiction in all districts in such cases and matters and to
such extent as are provided in Part III of that Act. It consists of a Presiding Magistrate and a
number of Intermediate Court Magistrates.
According to section 85(1) of the Courts Act, the hearing of every case before the
Intermediate Court shall take place before one Magistrate. However, having regard to the
magnitude of the interests at stake or the importance or intricacy of the questions of fact or law
involved, the President of the Intermediate Court may, either proprio motu or on application in
writing made to him by any party to a case stating the reasons for such application, direct that
any case be heard by two or more magistrates.15
Section 84 of Courts Act provides that in any proceeding before the Intermediate Court, any of
the following persons may address the court: (a) any party to the proceedings with the leave of
the court; (b) any person who is authorised to do pursuant to the Law Practitioners Act.
7.8
The Industrial Court
Jurisdiction of the Court
The Industrial Court has exclusive civil and criminal jurisdiction to try any matter arising out of
a number of statutes, the main one being the Labour Act, the Employment Rights Act and
Employment Relations Act. It is generally concerned with disputes between employees and
employers, or related with the workplace.
The Court presents some distinguishing features.
Informal powers of the Court
Section 5 (1) (a) of the Industrial Court Act is to the effect that any person may apply to a
Magistrate for advice, guidance or help in the settlement out of court of a dispute arising or
which is likely to arise, in respect of a matter within the jurisdiction of the Court, even though no
action has been entered or complaint made. According to section 5 (1) (b) of the Act, the
Magistrate shall freely give his advice, guidance or help to any such person and shall use his best
endeavours to secure a settlement out of court between the parties to an existing or likely dispute.
Section 5 (1)(c) of the Act provides that where the parties reach a settlement out of court, the
terms of the settlement shall be drawn up in a memorandum which shall be signed by the
Magistrate and signed or marked by the parties, and thereupon the memorandum shall have the
same effect as if it were a judgment of the Court. Section 5(20 of the Act further provides that
the Magistrate may at any time offer his advice, guidance or help to any person if he considers
that such a course is desirable to promote good industrial relations.
7.8
Superior Courts
The Superior Courts are the Supreme Court and the Judicial Committee of the Privy Council.
Supreme Court
Section 76(1) of the Constitution provides that there shall be a Supreme Court for Mauritius
which shall have unlimited jurisdiction to hear and determine any civil or criminal proceedings
under any law other than a disciplinary law and such jurisdiction and powers as may be
conferred upon it by this Constitution or any other law. According to section 14(1) of the Courts
Act, the official language of the Supreme Court is English.
The Supreme Court is composed of the Chief Justice, the Senior Puisne Judge, and a number of
other Puisne Judges. Section 77 of the Constitution deals with the mode of appointment of
Judges of the Supreme Court.
Section 15 of the Courts Act provides that the Supreme Court shall be a superior Court of record
and, in addition to any other jurisdiction conferred on it, shall have all the powers and judicial
jurisdiction necessary to administer the laws of Mauritius.
Section 12 of the Courts Act provides that in any proceedings before the Supreme Court, any of
the following persons may address the Court: (a) any party to the proceedings, with leave of the
court; (b) a barrister, and, if the proceedings are before the Bankruptcy Division, an attorney
retained by or on behalf of any party.
The Master & Registrar of the Supreme Court is the Chief Executive of the Judicial Department;
he is responsible for the day-to-day business of the courts and operates under the general
direction of the Chief Justice. As Registrar, he is he is in charge of all the records of the Supreme
Court. It is his duty to tax costs. He is the officer who deals with matters of audit, inquiry and
accounts. The Master's Court hears applications for division in kind of properties of co-heirs and
co-owners and conduct judicial sales under the Sale of Immovable Property Act. The Master &
Registrar also deals with probates of wills and matters connected therewith, such as renunciation
of succession rights. He is also the officer who deals with interdictions and is called upon to
conduct local examinations and enquiries. Eg when a person cannot attend court for any lawful
impediment or has to leave the country, the Master is the officer normally requested to record his
evidence under section 174 of the Courts Act, which deals with de bene esse proceedings. Note
that the expression 'Supreme Court' can be used in two senses. In the wide sense, it can mean the
Supreme Court inclusive of its divisions that is the Court of Civil Appeal the Court of Criminal
Appeal, the Supreme Court in both its original and appellate jurisdictions as well as the nominal
Bankruptcy division. The latter indeed is nominally a division of the Supreme Court and is in
truth a subordinate court: Karamuth v. Universal Hotels Ltd & Mauritius Commercial Bank
(1988) MR 171. In the strict sense, 'Supreme Court' means just the Supreme Court in its original
and appellate jurisdictions. In the discussion that follows, the term 'Supreme Court' is used in its
wide sense.
7.9
Supervisory Jurisdiction of Supreme Court over any Civil or Criminal Proceedings
before any Subordinate Court
According to section 82 of the Constitution, the Supreme Court shall have jurisdiction to
supervise any civil or criminal proceedings before any subordinate court and may make such
orders, issue such writs and give such directions as it may consider appropriate for the purpose of
ensuring that justice is duly administered by any such court.
Inherent Jurisdiction of the Supreme Court
According to section 17 of Courts Act, the Supreme Court and the Judges thereof shall sit and
proceed to and conduct, and carry on, business in the same manner as the High Court of Justice
in England and its Judges. The Supreme Court thus has an inherent jurisdiction by virtue of
which it entertains applications for judicial review and it punishes for contempt.
The Supreme Court as a Court of Equity
According to section 16 of the Courts Act, the Supreme Court shall be a Court of Equity vested
with power, authority and jurisdiction to administer justice, and to do all acts for the due
execution of such equitable jurisdiction, in all cases where no legal remedy is provided by any
enactment. It is inter alia on the basis of this jurisdiction that the Supreme Court issues
injunctions.
Jurisdiction of the Supreme Court in Constitutional Matters
The Supreme Court is endowed with original jurisdiction to interpret the Constitution. Section 17
of the Constitution provides that where any person alleges that any of the fundamental rights, as
guaranteed by sections 3 to 16, has been, is being or is likely to be contravened in relation to
him, then, without prejudice to any other action with respect to the same matter that is lawfully
available, that person may apply to the Supreme Court for redress.
Similarly section 83 provides that, where any person alleges that any provision of the
Constitution (other than Chapter II) has been contravened and that his interests are being or are
likely to be affected by such contravention, then, without prejudice to any other action with
respect to the same matter which is lawfully available, that person may apply to the Supreme
Court for a declaration and for relief.
By virtue of section 37 of the Constitution, the Supreme Court has jurisdiction to hear and
determine any question whether (a) any person has been validly elected as a member of the
National Assembly; (b) any person who has been elected as Speaker or Deputy Speaker was
qualified to be so elected or has vacated his office; (c) any member of the Assembly has vacated
his seat or is required, under section 36 of the Constitution, to cease to perform his functions as a
member of the Assembly.
Section 84 of the Constitution is to the effect that where any question as to the interpretation of
the Constitution arises in any subordinate court of law and the court is of opinion that the
question involves a substantial question of law, the court shall refer the question to the Supreme
Court. See the observations made in Police v. Moorba (1971) MR 199.
Where any question is referred to the Supreme Court, it shall give its decision upon the question
and the court in which the question arose shall dispose of the case in accordance with that
decision or, where the decision is the subject of an appeal to the Court of Appeal or the Judicial
Committee, in accordance with the decision of the Court of Appeal or, as the case may be, of the
Judicial Committee.
It is to be noted that section 119 of the Constitution provides that no provision of the
Constitution that any person or authority shall not be subject to the direction and control of any
other person or authority in the exercise of any functions under this Constitution shall be
construed as precluding a court of law from exercising jurisdiction in relation to any question,
whether that person or authority has performed those functions in accordance with this
Constitution or any other law or should not perform those functions. The Supreme Court bases
itself on this provision of the Constitution to review decisions of the Public Service Commission
and the Disciplined Forces Service Commission.
Disciplinary Powers of the Supreme Court
Section 18(1) of Courts Act provides that the Supreme Court shall have power and jurisdiction to
hear and determine any complaint of a disciplinary nature in respect of the professional conduct
of a law practitioner or a ministerial officer including a land surveyor.
Appellate Jurisdiction of Supreme Court
Section 69 of the Courts Act provides that the Supreme Court shall have full power and
jurisdiction to hear and determine all appeals, whether civil or criminal, made to the Court from
(i) a Judge in the exercise of his original jurisdiction; (ii) the Bankruptcy Division of the
Supreme Court; (iii) the Registrar (Master's Court); (iv) the Intermediate Court; (v) the Industrial
Court; (vi) a Magistrate; (vii) any other court or body established under any other enactment.
7.10
Courts of Appeals
As per the Constitution, the Supreme Court can be a Court of Appeal in Civil and Criminal
cases. Both Courts of Appeal are divisions of the Supreme Court.
This means that unlike the United Kingdom, the Courts of Appeals are not separate from the
Supreme Court.
Section 80 of the Constitution: Courts of Appeal
(1) There shall be a Court of Civil Appeal and a Court of Criminal Appeal for Mauritius, each of
which shall be a division of the Supreme Court.
(2) The Court of Civil Appeal shall have such jurisdiction and powers to hear and determine
appeals in civil matters and the Court of Criminal Appeal shall have such jurisdiction and powers
to hear and determine appeals in criminal matters as may be conferred upon them respectively by
this Constitution or any other law.
(3) The Judges of the Court of Civil Appeal and the Court of Criminal Appeal shall be the judges
for the time being of the Supreme Court.
7.11
The Judicial Committee of the Privy Council
A litigant can appeal from decisions of the Supreme Court or the Court of Criminal Appeal or
the Court of Civil Appeal to the Judicial Committee of the Privy Council.
Section 81(1)(a) of the Constitution provides that an appeal lies as of right in the following cases:
- final decisions, in any civil or criminal proceedings, on questions as to the interpretation of the
Constitution;
- where the matter in dispute on the appeal to the Judicial Committee is of the value of Rs 10000
or upwards or where the appeal involves, directly or indirectly, a claim to or a question
respecting property or a right of the value of Rs 10000 or upwards, as regards final decisions in
any civil proceedings;
- final decisions in proceedings, under section 17 of the Constitution; and
- in such other cases as may be prescribed by Parliament.
By virtue of section 81(2) of the Constitution, an appeal shall lie from decisions of the Court of
Appeal or of the Supreme Court to the Judicial Committee with the leave of the Supreme Court
- where in the opinion of the Court the question involved in the appeal is one that, by reason of
its great general or public importance or otherwise, ought to be submitted to the Judicial
Committee, as regards final decisions in any civil proceedings;
- in such other cases as may be prescribed by Parliament: Section 70A of the Courts
Act is to the effect that an appeal shall lie from final decisions of the Court of
Criminal Appeal or the Supreme Court to the Judicial Committee in criminal cases where, in the
opinion of the Court, the question involved is one that, by reason of its great general public
importance or otherwise, ought to be submitted to the Judicial Committee.
According to section 81(4) of the Constitution, the reference to final decisions of a court are not
meant to include any determination of a court that any application made to it is merely frivolous
or vexatious.
Section 81(3) of the Constitution provides that a determination of the Supreme Court, in
proceedings relating to questions of membership of the National Assembly or the offices of
Speaker or Deputy Speaker, shall not be subject of an appeal (vide section 37(6) of the
Constitution). The proviso to section 37(6), however, provides that an appeal shall lie to the
Judicial Committee in such cases as may be prescribed by Parliament: section 4(1) of the
National Assembly (Vacation of Office and Membership) Act provides that an appeal shall lie as
of right to the Judicial Committee from a determination of the Supreme Court on any question
under section 37(1)(c) of the Constitution.
Section 81(3) further provides that the following determinations by the Supreme Court shall not
be the subject of an appeal to the Judicial Committee:
- Any determination by a Judge of the Supreme Court under paragraph 2(5) of the
First Schedule to the Constitution, before the day appointed for the nomination of candidates at a
general election, of any question incidental to any such application or declaration made in
relation to that general election as regards registration of parties;
- Any determination by a Judge of the Supreme Court under paragraph 3(2) of the
First Schedule to the Constitution of any question as to the correctness of the declaration relating
to his community made by a candidate in connection with his nomination as a candidate for
election at any general election.
By virtue of section 81(5) of the Constitution, the Judicial Committee has the right to grant
special leave to appeal from the decision of any court in any civil or criminal matter.
UNIT 8 – LEGAL THOUGHTS AND LEGAL REASONING
8.0 Overview
A judge may rape his wife. A court of law may refuse to pass death sentence because one of the
judges find it unethical to do so. Whatsoever, a court must put in writing its decision in a clear
and comprehensive manner as to how it comes to a decision because it would be immoral to send
someone to custody if he has not been given an opportunity to be heard. Lord Denning said that
“Law is a matter of common sense’’. In addition, it is also based on morality but there are so
many branches related to the importance of law. For some authors (legal positivists) claim that
there is no necessary connection between law and morality. However, many suggest that there is
in fact interplay between law and morality. John Finnis (John Finnis, Natural Law and Natural
Rights, 1980) argues against the legal positivists’ position by claiming that the case he discusses
exemplifies how legal reasoning is best understood as an instantiation of general practical reason.
What is more important for current purposes are the role of law as providing an instance of
practical reasoning and thus an instantiation (Veitch and al, 2007).
8.1 Learning Objectives
At the end of this chapter you must be able to understand:
1. The importance of law and its moral values
2. Philosophy and Natural Law
8.2 The Contribution of Grotius, Hobbes, Locke, Wolff and Rousseau to Natural Law
Some philosophes have contributed to the development of natural law and its legal reasoning.
For Grotius (A Dutch jurist), the universe was moved by a rational law-both immutable and
intelligible and the laws of nature would exist even if it were conceded: “That there is no God,
or that the affairs of men are of no concern to him’’. Grotius though that Natural law is based on
reason alone.
To Hobbes (an English philosopher) , the law of preservation of life rules life on earth and thus,
natural law was the dictate of right reason conversant about those things which are either to be
done or omitted for the constant preservation of life. According to him, despite all men are equal
there is a continuing state of war of every man against every man. Therefore, due to preservation
of life men have to put an end to this state of war of every man against every man to seek peace
and to pursue it. It is in this way that men may achieve a social contract between men and men
and as a result to submit themselves to a just sovereign who thereby becomes the sole judge of
what is good for his subjects.
For peace and sovereignty there must be several powers within a State. John Locke followed
Hobbes but added that there is a separation of powers between the executive power, the judiciary
and the legislative power where each power is independent and autonomous. Hence, for Locke a
judge is not a law-maker. Locke said that “the right of making laws and of employing the force
of the community in the execution of such laws and in the defence of the commonwealth and all
this only for the public good’’. The reasoning and rationale behind the philosophy of Locke is
that though the legislature is powerful in making law it is not as supreme as it wished because it
cannot rule in an arbitrary manner, cannot transfer its power to legislate to others, cannot deprive
man of his property without his consent and should be called to dispense justice and decide the
rights between subject and subject. He went on to add that natural law gave inborn tights to
people to ‘‘life, liberty and estate’.
The rational of legal reasoning for Wolff, the German philosopher and Mathematician, is that the
search for truths was defeated by the limitations of the senses, the power to reason could be used
to attain and explain them such that in the final run there are duties incumbent upon human
beings in society for growth into self-perfection. In this way, Wolff explained all phenomena
including law could be investigated and followed from this therefrom there are human rights
which are universally applicable without discrimination of race, colour, creed or political
opinion. According to him, freedom then flows from obedience to natural law.
In France there are two philosophers who need to be cited in the development of natural law and
reasoning. Montesquieu, the famous French political philosopher, said that natural law existed
before society existed, superior to the law of religion or the law of the State. He went on to say
that law and justice may be amended according to time and place. He too followed the doctrine
of the separation of powers by Locke and was of the view that there is a doctrine of separation of
powers between the Legislature, Executive and Judiciary capable to maintain peace and order
provided these powers are independent and autonomous in their functioning. In this way there is
freedom and liberty and the true purpose of political association is the assurance of people’s
liberty. For people to understand law it must be clear and certain.
In the legal reasoning of Rousseau, another French philosopher, men is born free but though he is
free he is everywhere in chains. He argued that liberty lay in obedience to self-prescribed law so
that there is a social contract because men will never surrender their natural rights to a single
rule. Indeed, they surrender to society as a whole and society in return guarantees them to the
people as civil liberties. The basis of society he said was popular sovereignty, which was
absolute and inalienable. People have a will and are reflected in their right to vote but the people
general will was more than the sum total of individuals wills. He said that the people general will
is transcendent, always constant, unalterable and pure. He added that general will did not mean
the dictate of the majority because there shall also be adequate protection of the minority in that
general will.
8.3 Islamic School of Thoughts.
After the death of Prophet Muhammad (
) and during the dynasty of the Abbasside there
appeared mainly 4 famous and most popular schools of Sunni Law and independent schools of
thought, out of 424 different schools of thought, namely the Hanafi School, Maliki School, Shafi
School and Hanbali School. They unanimously agreed that only one Caliph must be appointed
and it is trite law in Islamic States there are two leaders at the same time, even in the whole o
fthe world, and it is forbidden to give the oath to more than one. However, for the Shia School of
Thought and Jurisprudence the leader or Imam must not be appointed by the Islamic Ummah but
by Allah only. Johnson and Sergie (2014) wrote in their article entitled Islam: Governing under
Sharia that:
“Sharia developed several hundred years after the Prophet Muhammad’s (
) death in 632
CE as the Islamic empire expanded to the edge of North Africa in the West and to China in
the East. Since the Prophet Muhammad (
) was considered the most pious of al believers,
his life and wys became a model for all other Muslims and were collected by scholars into
what is known as the hadith. As each locality tried to reconcile local customs with Islam,
hadith literature grew and developed into distinct shcoools of Islamic thought: the Sunni
schools, Hanabli, Maliki, Shafi, Hanafi; and the Shitte School, Jafari. Named after the
scholars that inspired them, they differ in the weight each applies to the sources from which
sharia is derived, the Quran, hadith, Islamic shcolars, and consensus of the community’’.
Hanafi School (669-767 A.D.). Imam Abu Hanifa relied on analogical deductions or qiyas.
Hanafi law became popular on the Indian subcontinent. Aurangzeb compiled the Hanafi law and
introduced the Fatawa-e-Alamgiri (Chapter 28).
Maliki School (713-795 A.D.). Imam Malik-Ibn-Anas (713-795 A.D.) relied instead on the
traditions of the Holy Prophet and ijma nouma (consensus of opinion) as sources of Islamic Law.
Despite the Holy Prophet of Islam allowed a group of Christians to pray inside Al-Masjid alNabawi for their Sunday worship the Maliki School forbid non-Muslims to pray or enter a
mosque based on
“It is not for such as join gods with Allah, to visit or maintain the mosques of Allah while
they witness against their own souls to infidelity. The works of such bear no fruit: In Fire
shall they dwell”— Quran, Sura 9 (At-Tawba), verse 17. “O ye who believe! Truly the
Pagans are unclean; so let them not, after this year of theirs, approach the Sacred Mosque.
And if ye fear poverty, soon will Allah enrich you, if He wills, out of His bounty, for Allah is
All-knowing, All-wise” Quran, Sura 9 (At-Tawba), ayah 28
Shafi School (767-820 A.D.). Imam Mohammad–ash-Shafi perfected the doctrine of ijma and
founded the Science of usul.
Hanbali School (780-855). Imam Ahmad Ibn Hanbal preferred the hadiths of the Holy Prophet
(
).
DIFFERENT SCHOOLS OF ISLAMIC JURISPRUDENCE AND THOUGHTS &
COUNTRIES AND REGIONS THEY ARE PREDOMINANT
SCHOOLS
1 Hanbali School of
REGIONS
Saudi Arabia
SCHOOLS
4 The
Shafi
REGIONS
of
Indonesia,
Islamic
Islamic
Jurisprudence and
Jurisprudence and Darussalam
Thoughts
Thoughts
2 Hanafi School of
Malaysia,
Yemen
Central Asia,
5 Jafari
Islamic
Egypt, Pakistan,
Islamic
Jurisprudence and
India, china,
Jurisprudence and
Thoughts
turkey, Balkanss
Thoughts
and the Caucasus
3 The Maliki School
North Africa
of Islamic
Jurisprudence and
Thoughts
TABLE (SOURCE: AUTHOR)
of
Iran
Brunei,
and
Though the four Imans had different schools of thought nevertheless there are two additional
doctrines: the ijtihad or opinion and taqlid. Traditionally speaking there are customary law or urf
completed by Muslim Personal Law or fyzee which states that :
“Mohammedan Law as received in India is the shar’ia, modified by the principles of the
English common law and equity, in the varying social and cultural conditions of India. The
Shariat Act, 1937 in effect abrogated local customs and restored to Muslims their own
personal law’’.
8.4 Islamic Jurisprudence and Other Sources of Shar’ia Law. Fiqh or the interpretation of
Shar’ia Law by eminent scholars and imams does not alter or amend Shar’ia Law because of its
divine origin but different schools of jurisprudence have their own interpretation of Shar’ia Law.
As an illustration, qiyas or analogy may be used as a tool of interpretation by all Sunni schools
but may be rejected by Shia schools of thought). For example, the Salafi movement creates
shar’ia law based stricto sensu what has been revealed by the Holy Qur’an, Sunnah and the
sayings of the first three generations of Muslims.
SUNNI
SHIA
KHAWARIJ
SUFI
AHMADI
1
2
Hanafi School-
Jafari
School-
Central and South
Persian, West and
Asia
South Asia
Maliki School-
Zaydi
West and North
Yemen
School-
Ibadi School
Sufi School
AND
Africa and parts
of Arabia
3
Shafi
School-
Ismaili
School-
South Asia and
Central
Asia,
East Africa
Syria, India and
Pakistan
4
Hanbali SchoolArabian peninsula
TABLE (SOURCE: AUTHOR)
It covers all branches of Shar’ia Law including, inter alia, public and private law, Muslim
Personal Law and procedural law. Other sources of Shar’ia include sources like equity and
customs. Verse 45 of Surah reads as: ]
“If you judge, judge in law and equity, for Allah loves those who judge in accordance with
law and equity”. ]
UK law relies on various rules of interpretation (Golden Rule, Literal Rule, Mischief Rule and
Contextual rule) and unless it is absurd or repugnant its ordinarily meaning or a secondary
meaning is sought. Shar’ia Law is Divine Law and interpretation is based on injunctions and
interpretation of the Sunnah (Muhammad’s practices, opinions and traditions) otherwise different
fiqhs, or school of Islamic jurisprudence, are deployed to come to a common interpretation and
agreement such as:]
Ijma. An interpretation may be based on collective reasoning and consensus by the eminent
Islamic scholars. Verse 59 of Surah 4 reads as “O you who have believed, obey Allah and obey
the Messenger and those in authority among you. And if you disagree over anything, refer it to
Allah and the Messenger, if you should believe in Allah and the Last Day. That is the best way
and best in result’’.
Qiyas. Qiyas are based on deductions or analogy following verse 59 of Surah 2 which reads as
“But those who wronged changed those words to a statement other than that which had been said
to them, so We sent down upon those who wronged a punishment from the sky because they
were defiantly disobeying.
Istihsan. The interest of Islam shall prevail for public welfare.
Ijtihad. Ijtihad or opinion of the jurists is juristic reasoning through analogy (qiyas) whereas
Taqlid if the doctrine of following a or imitation as applied and interpreted by Muslim scholars
(muftis), and their opinions are termed as Fatwas (Fatwai-Alamgiri and/or Fatwai Qadi Khan)
Istihab and Urf. Islamic customary law provided they are interpretation in strict compliance and
they are not in contradiction with the Holy Qur’an, hadiths or other fiqh. For Ibn Abidin (1884),
who was a Syrian Hanafi jurist who lived from the late Ottoman period, urf is a source of
Shar’iah Law such that in case of conflict between a custom or usage and a shariah text only
those customs which were absolutely contradictory were rejected and in case of conflict with a
jurist law text or fiqh, the custom prevailed as a principle (in Muslim Jurist’s quest for the
Normative Basis of Shariah, ISIM Newsletter, Leiden, 2001, p.17). Mohammad Hashim Kamali
wrote in his Oxford History of Islam, Law and Society: The Interplay of Revelation and Reason
in the Shariah, Oxford, 2000 that Maliki jurisprudence also attempted to forge a closer link with
the practicalities of life in Medina and attached greater weight to social customs than other jurists
did.
In the words of Kamali (2000), a leading author on The History of Islam:
“The non-revealed sources of Shariah are generally founded in juristic reasoning (ijtihad).
This reasoning may take a variety of forms, including analogical reasoning (qiyas), juristic
preference (istihsan), considerations of public interest (istislah), and even general consensus
(ijma) of the learned, which basically originates inijtihad and provides a procedure by which
a ruling of juristic reasoning can acquire the binding force of law. Analogy and consensus
have been generally recognised by the vast majority of ulama, but there is disagreement over
the validity and scope of many of the rational proofs that originate in ijtihad’’.
Jabir (1990) in his Source Methodology in Islamic Jurisprudence stated that “Ali used to
formulate his own opinion by means of ijithad based on qiyas, istishab, istishan and istislah,
always basing his opinion on the broader aims of the shariah’’. According to Sayyid Abul Ala
Mawdudi (1903-1979) (quoted in Islam, A Comprehensive Study by a Professed Christian, The
Muslim Mind by Charis Waddy, p.16, S.Abdul Majeed & Co, 1990) who authored Tafhim alQuran which means ‘Towards Understanding the Quran’) wrote that:
“Tafhim al-Quran is not a literal translation of the original text. It is an attempt to present the
meanings of the Quran in plain language keeping the histoprical perspective in view. The
Quran speaks to you in the language of life, vividly and melodiously: by comparison the
language of translation is a poor echo of the glorious original … one is left cold and begins to
wonder whether there is indeed the Book which has no equal. The Quran is great literature.
Its words go straight to the heart and it is this quality which, like a crack of lighting, shook
the length and breadth of Arabia. The Quran presents an arrangement which is completely
contrary to our expectations. We find beliefs, precepts, orders, criticisms, warnings,
promises, argumetns, evidence, historical illustrations and references to natural phenomena
following one another in rapid succession without any apparent regard for logic…It talks of
the origin of man, the structure o the earth and the heavens…It recalls the beliefs and
criticizes the conduct of different nations, analyses metaphysical problems and refers to
many other things. The object however is not to give lessons in metaphysics, philosophy,
history or any other science, but toremove misunderstandings about reality… to acquaint
(man) with the result of actions which conflict with its underlying principles. Whether one is
believer or not, as a rational person one must read this book by taking into account the
fundamental assumption made in the book itself, and by the Prophet who presented it to the
world’’.
8.5 Rules of Natural Justice
What are rules of natural justice? Where do they come from? Does the law provide for rules and
principles of natural justice? Where do they find its applications? Legislations never provide for
natural justice but enactments so provide by implied implications. As an illustration, section
10(8) of the Constitution does not provide expressly for natural justice but there are implied
terms in it that it is meant for natural justice as well. This section provides that:
“10(8) Constitution Any court or other authority required or empowered by law to
determine the existence or extent of any civil right or obligation shall be established by
law and shall be independent and impartial, and where proceedings for such a
determination are instituted by any person before such a court or other authority, the
case shall be given a fair hearing within a reasonable time’’.
According to Sir John Donaldson, Master of the Rolls “a failure to observe the basic rules of
natural justice, which is probably better described as fundamental unfairness since justice in
nature is conspicuous by its absence” (R v Panel on Take owvers and Mergers, ex parte Datafin
PLC 1987). In the leading case of Lloyd v Mc Mahon 1987 AC 625, 702 Lord Bridge set the
major criteria in terms of procedural fairness and the duty for Boards, Commissions, Tribunals or
any authority to act fairly when he wrote that:
“My Lords… the so-called rules of natural justice are not engraved on tablets of stone.
To use the phrase which better expresses the underlying concept, what the requirements
of fairness demand when any body, domestic, administrative or judicial, has to make a
decision which will affect the rights of individuals depends on the character of the
decision-making body, the kind of decision it has to make and the statutory or other
framework in which it operates. In particular, it is well established that when a statute
has conferred on any body the power to makde decisions affecting individuals, the courts
will not only require the procedure prescribed by the statute to be followed, but will
readily imply so much and no more to be introduced by way of additional procedural
safeguards as will ensure the attainment of fairness’’.
RULES OF NATURAL JUSTICE
Precedents
1
Lloyd v Mc Mahon 1987 AC
Precedents
11 Mauritius Federation of Transport v The
625, 702
2
Arbitration Tribunal 1963 MR 13
R v St. Edmondsbury B.C.
12 Jaunbaccus v Nanapragassen 1984 MR 150
1985 1 WLR 1168
3
Metrop. Properties v Lannon
13 Norton v PSC 1985 MR 108
1969 1 QB 577
4
R v Board of Visitors ex parte
14 Ibrahim v The Town Clerk 1990 SCJ 202
Lewis 1986 1 Wh R 130
5
R
v
Northumberland
Compensation
Appeal
15 Dina v District Magistrate of Rodrigues 1993
SCJ 218
Tribunal 1952 1 KB 38
6
Board of Education v Rice
1911 AC 179
7
Bromley LBC v GLC 1983
16 Jandoosingh v District Magistrate of Curepipe
1993 SCJ 324
17 Soobratty v CWA 1988 MR 53
AC 768
8
Pett v Greyhound Raving
Association 1970 1 QB 46
9
Fraser v Mudge 1975 1 WLR
1132
10 Maynard v Osmond 1977 QB
18 Bundhoo v Mauritius Breweries Ltd 1981 SCJ
66,
19 Tirvengadum v Bata Shoe (Mauritius) Co. Ltd
1979 MR 133
20 Mamode v De Speville 1984 SCJ 172
240
TABLE 1
As guide, a list of important precedents and the most refered cases which deal with the rules of
natural justuice are tabled above but this list is not, of course, exhaustive. Rules of natural justice
are clearly set on the principles of audi alteram partem and nemo judex in sua re. If the decision
reached by that public statutory body or administrative decision of institutions performing public
functions is so unreasonable, against the rules of natural justice because there is the sound
principle that nobody must be judge in his own cause (R v St. Edmondsbury B.C. 1985 1 WLR
1168, Metrop. Properties v Lannon 1969 1 QB 577) otherwise there will be a great likelihood
that the decision reached was biased (R v Board of Visitors ex parte Lewis 1986 1 Wh R 130),
maybe there has been an error on the face of the record (R v Northumberland Compensation
Appeal Tribunal 1952 1 KB 38, Mauritius Federation of Transport v The Arbitration Tribunal
1963 MR 13, Jaunbaccus v Nanapragassen 1984 MR 150, Norton v PSC 1985 MR 108, Ibrahim
v The Town Clerk 1990 SCJ 202, Dina v District Magistrate of Rodrigues 1993 SCJ 218,
Jandoosingh v District Magistrate of Curepipe 1993 SCJ 324 and Soobratty v CWA 1988 MR
53) or has not been given an opportunity to be heard (Board of Education v Rice 1911 AC 179
and Lloyd v McMahon 1987 2 WLR 821). And what shall come out of a decision reached by a
public body exercising public rights shall be fair and just provided the procedure has been
followed as the legislator has purposively set down rules, regulations and procedurs to be
followed prior to dismissal. On the issue of unfairness, Lord Russel in Fairmount Investments
Ltd v Secretary of State for the Environment 1976 stated that:
“I am satisfied that if the true conclusion is that the course which events followed resulted in
that degree of unfairness…that it is commonly referred to as a departure from the principles
of natural justice and it may equally be said that the order is not within the powers of the Act
and that a requirement of thre Act has not been complied with. For it is to be implied, unless
the contrary appears, that Parliament does not authorise by the Act the exercise of powers on
breach of the principles of natural justice, and that Parliament does by the Act require, in
particular procedure, ciompliance with those principles.’’
In the doctrine of De Smith and Jowell (Judicial Review of Administrative Action, p. 432) where
the respected authors went on to explain the importance of a notice such that:
“9-004 Procedural fairness generally requires that person liable to be directly affected
by proposed administrative acts, decisions or proceedings be given adequate notice of
what is proposed, so that they may be in a position (1) to make represntations on their
own behalf; or (2) to appear at a hearing or inquiry (if one is to be held); and (3)
effectively to prepare their own case and to answer the case (if any) they have to meet’’.
Therefore, it is a sound principle that if that administrative body, authority, public statutory body
or tribunal failed to give notice to a person whose interst is at stake then it would tantamount to a
denial of an opportunity yo be heard as in the leading case of Chief Constable of Northern Wales
Police v Evans 1982 1 WLR 1155, a precedent from the UK which is uncontestedly considerd an
authority on procedural fairness in the law of unfair dismissal (in the same line the case of Ridge
v Baldwin 1964 AC 40). In Mauritius, in the leading case of Bundhoo v Mauritius Breweries Ltd
1981 SCJ 66, the appellant was dismissed for an ‘alleged’ case of larceny without being given an
opportunity to be heard prior to his dismissal and the Suprmee Court stated clearly that:
“Natural justice demands a fortiori that he should be given an opportunity to dispel the
suspicions there may be against him before any action him before any action, by
whatever named called, is taken to deprive him of his employment. Failure to do so,
must, as provided by section 32(2) of the Labour Act 1975, be deemed to constitute an
unjustified dismissal”.
The Supreme Court may order a certiorari to quash the decision reached by that public statutory
body or administrative decision or grant an order to compel (mandamus) a tribunal or any
inferior court in order for it to exercise its jurisdiction appropriately in case, for example, it has
acted ultra vires (outside its jurisdiction-Bromley LBC v GLC 1983 AC 768). Even if an
applicant is legally represented it does not mean that he has enjoyed a fair hearing (Pett v
Greyhound Raving Association 1970 1 QB 46, Fraser v Mudge 1975 1 WLR 1132 and Maynard
v Osmond 1977 QB 240). Natural justice requires adequate warning of a hearing and details of
the charges to be met in order to allow a party to prepare his case properly (Sloan v GM Council
1970 1 WLR 1130).
8.6 Conclusion. Jurisprudence and legal thoughts are important to understand the origin of the
law and its development in modern time. Indeed, people and society change with time and as a
result laws and legislations must be amended, reviewed and repealed if necessary. In this respect,
the Mauritina legislator is very active and proactive in passing new legislations to be in line with
development in emerging sectors that may contribute to the socio-economic development of the
country.
8.7 Summary. Some great philosophers have contributed to the development of law irrespective
it is Western or Islamic Law. Actually, Mauritian Law is a mixture of these sources of law and
its different school of thoughts.
8.8 Activities.
1. Explain the importance of Natural Justice?
2. Explain the importance of Islamic Law and its different school of thoughts in the development
of Law?
3. Explain the importance of the doctrine of the separation of powers in a democratic country?
4. Mauritian Law is a ‘hybrid system’. Discusss.
5.9 Further Reading
Dr Ali Issa Othman, The Concept of Man in Islam, in the writings of Al-Ghazali, Dar el
Maaref, Cairo 1960, pp. 13, 15
Abdur Rahim, Muhammadan Jurisprudence, TLL 1907, 1985, Lahore, p. 50
Finnis J., (1980),Natural Law and Natural Rights 1980
Fyzee: Outlines of Muhammedan Law, Ed IV, p. 15
Gibbons, Decline and Fall of the Roman Empire
Johnson T and Sergie M.A. (2014), Islam: Governing under Sharia
Haim G. (1999), Islamic Law and Culture 1600-1840, Leiden, Brill
Jabir T. (1990), Source Methodology in Islamic Jurisprudence, International Institute of
Islamic Though, Herndon, Virginia
Kabbani S.M.H., Understanding Islamic Law
Kamali Hashim Mohammad (2000), Oxford History of Islam, “Law and Society: The Interplay
of Revelation and Reason in the Shariah”, Oxford
Kamali M. H. (1999), Maqasid al-Shariah: The Objectives of Islamic Law, Islamic Research
Institute, Pakistan, p. 3
Mahmud Abd al-Halim S. and al-Azhar S., Philosophy of Thinking in Islam, Islamic Rules:
Between Originality and Imitation, p. 247
Mallat Chibli (1990), Islam and Public Law, Introduction: On Islam and Democracy, SOAS/
Institut du Monde Arabe
UNIT 9 - LEGAL PROFESSION AND THE JUDICIARY
9.0 Content. The judiciary cannot work with judges only. It needs une panoplie of people to
work for the judiciary to function properly. In this chapter, you learn how the different
protagonists ranging from judges, magistrates, police officers and clerks just to name a few work
in the judiciary to bring justice , peace and order to the citizens of Mauritius.
9.1 Learning objectives. At the end of this chapter you will be able to understand the different
role played by each protagonist in Mauritius and its independent judiciary.
9.2 Learning outcomes. At the end of this chapter you must be able to know how and why the
judiciary functions properly in Mauritius. There are some protagonists whom you might have
come across in your daily but there are also some of them you might have never met (the DPP).
9.3 Judge in Chambers. In various circumstances such as an application for an injunction,
marriages of minors (article 145 CCM), religious marriages (article 228-9 CCM), adoption
(article 344 alinéa 2CCM related to adoption simple), l’autorité parentale (article 372, alinéa 2
CCM) or in case of a petition for divorce (section 7of The Divorce and Judicial Separation Act
1982) the matter is heard before a Judge of the Supreme Court. Some of the powers of a Judge in
Chambers are enacted under section 71 of the Courts Act 1945.
Section 71 Courts Act 1945 Matters disposed of by Judge in Chambers
(1)Subject to subsection (2), applications for or concerned with or in respect to any matter
specified in this section and any matter connected therewith may, subject to the discretion of the
Judge in any particular case to refer them to the court, be finally disposed of at Chambers by a
Judge’s order, which order shall be a sufficient authority to the Registrar to issue thereon a rule
of court de plano –
(a)applications to be let into possession of the unadministered property and rights of a party
deceased or absent (envoi en possession);
(b) applications for affirmative declaration;
(c) applications for cancellation or reduction of mortgage inscription;
(d) applications for removal of seizures;
(e) applications for the validity or nullity of attachments;
(f) applications for partitions of property;
(g) –
(h)applications for admission of a relinquishment of immovable property;
(i)applications touching absent persons under article 115 of the Code Napoléon;
(j) –
(k) applications for homologations of compromises (transactions) under article 441 of the Code
Napoléon;
(l) applications for nomination of surveyors, appraisers, skilled witnesses (experts).
(2)In applications under subsection (1) (c), (d), (e) or (f), no order shall be made by a Judge in
Chambers, where a party to the application objects.
9.4 Master and Registrar. According to section 19 of The Courts Act: “The Supreme Court
shall have an officer to be styled the Master and Registrar of the Supreme Court, who shall be a
barrister of at least 5 years standing, whose duty it shall be to tax costs, conduct and manage
judicial sales, probate of wills and the matter connected therewith, interdictions and local
examinations, and who shall deal with matters of audit, inquiry, and accounts, and generally, all
such matters as may be referred to him by the Chief Justice or the Judges”.
Section 19 Courts Act 1945 Master and Registrar
(1) There shall be a Master and Registrar of the Supreme Court who shall be a barrister of not
less than 5 years standing at the bar.
(2) The duties of the Master shall include (a) the conduct and hearing of all formal matters relating to cases, other than criminal matters,
pending before the Supreme Court;
(b) the taxation of costs, the conduct and management of judicial sales, probate of wills and
incidental matters connected therewith;
(c) the dealing with matters of audit, inquiry and accounts; and
(d) all such matters as may be referred to him by the Chief Justice, Judge or Court.
9.5 The Administrative Secretary for Rodrigues. In the absence of the Magistrate for
Rodrigues the Adminstrative Secreatary for Rodrigues has powers to affix and remove seals,
issue warrants of arrest, search warrants, and remanding persons in custody. The island of
Rodriques became partially autonomous with huge powers in the hands of the Commissaire de
Rodrigues.
9.6 The Official Receiver
Section 81 Bankruptcy Act Status of Official Receiver
(1)The duties of the Official Receiver shall have relation both to the conduct of the debtor and to
the administration of his estate.
(2)The Official Receiver may, for the purpose of affidavits verifying proofs, petitions, or other
proceedings under this Act, administer oaths.
(3)All expressions referring to the trustee under a bankruptcy include, unless the context
otherwise requires, the Official Receiver when acting as trustee.
(4)The trustee shall supply the Official Receiver with such information and give him such access
to, and facilities for, inspecting the bankrupt’s books and documents and generally shall give him
such aid as may be requisite for enabling the Official Receiver to perform his duties under this
Act.
9.7 The police. In order for law and order to prevail in Mauritius it is important to have law and
regulations such that the police forces have powers of arrest, seizure and detention, and to give
fine where needful. There is a Police de l’Environnement and various branches of the police
force which specializes in various fields and sectors. The Commissioner of Police also plays an
important role in giving orders and directions to the Police Force in Mauritius.
Section 9 Police Act 1974 Duties of the Police Force
(1)The duties of the Police Force shall be to take all lawful measures for –
(a) preserving the public peace;
(b) preventing and detecting offences;
(c) apprehending persons who have committed, or who are reasonably suspected of having
committed offences;
(d) regulating processions and gatherings on public roads and in public places, or places of
public resort;
(e) regulating traffic and preventing or removing obstructions from public roads;
(f) preserving order in public places and places of public resort, at public gatherings and
assemblies for public amusement;
(g) assisting in implementing health, quarantine, customs and excise laws;
(h) assisting in preserving order in ports, harbours and airports;
(i) executing process issued by a court;
(j) swearing information and conducting prosecutions;
(k) performing such other functions as may be conferred on police officers under any other
enactment.
(2)Every police officer shall perform such para-military duties as he may be required to do and
for that purpose may serve in any specialized unit of the Police Force.
(3)For the purposes of subsection (1) (f), a police officer on duty shall have free admission
to the places, gatherings and assemblies specified while they are open to the public.
9.8 The Magistrate/Presiding Magistrate/Senior District Magistrate. In each District Court,
Industrial Court or Intermediate Courts there are one, two or three Magistrates. And they may be
a Temporary Magistrate, Magistrate or Senior Magistrates. They have huge powers to hold
preliminary enquiries and/or judicial enquiries and to ensure that the plaintiffs or applicants
enjoy a fair trial and that justice is done by any person to a suit may appeal to a higher
jurisdiction against a decision reached by a Magistrate (the decision reached by the Magistrate
was biased, ultra vires, wrong decisions, amendment of an information on appeal).
9.9 The Director of Public Prosecutions. The DPP holds constitutional powers (section 72 of
the Constitution 1968).
Section 72 Constitution 1968
Director of Public Prosecutions
(1)There shall be a Director of Public Prosecutions whose office shall be a public office and
who shall be appointed by the Judicial and Legal Service Commission.
(2)No person shall be qualified to hold or act in the office of Director or Public Prosecutions
unless he is qualified for appointment as a Judge of the Supreme Court.
(3)The Director of Public Prosecutions shall have power in any case in which he considers it
desirable so to do –
(a)to institute and undertake criminal proceedings before any court of law (not being a court
established by a disciplinary law);
(b)to take over and continue any such criminal proceedings that may have been instituted by any
other person or authority; and
(c)to discontinue at any stage before judgment is delivered any such criminal proceedings
instituted or undertaken by himself or any other person or authority.
(4)The powers of the Director of Public Prosecutions under subsection (3) may be exercised by
him in person or through other persons acting in accordance with his general or specific
instructions.
(5)The powers conferred upon the Director of Public Prosecutions by subsection (3) (b) and (c)
shall be vested in him to the exclusion of any other person or authority
Provided that, where any other person or authority has instituted criminal proceedings, nothing in
this subsection shall prevent the withdrawal of those proceedings by or at the instance of that
person or authority at any stage before the person against whom the proceedings have been
instituted has been charged before the court.
(6)In the exercise of the powers conferred upon him by this section, the Director of Public
Prosecutions shall not be subject to the direction or control of any other person or authority.
(7)For the purposes of this section, any appeal from any determination in any criminal
proceedings before any court, or any case stated or question of law reserved for the purposes of
any such proceedings to any other court, shall be deemed to be part of those proceedings
Provided that the power conferred on the Director of Public Prosecutions by subsection (3) (c)
shall not be exercised in relation to any appeal by a person convicted in any criminal proceedings
or to any case stated or question of law reserved except at the instance of such a person.
Courts Act, 1945 118 Director of Public Prosecutions may prosecute
The Director of Public Prosecutions may prosecute any offender and cause the prosecution to be
conducted, under his direction by any officer of his department, or any person deputed by him.
9.10 Counsels for the Prosecution. They are ‘prosecuting counsels’, appointed by the DPP and
they are known as ‘avocats au Parquet’. They must hold at least an LLB (Hons) and have been
admitted to the Bar of England or according to various requirements which are provided under
the Law Practitioners Act 1984 (as amended by the The Law Practitioners Act (Amendment) Act
2011) after various training and practice with their Pupilage Master.
9.11 The accused party. In criminal cases there is an accused party who is tried alone or with
others if they are accomplices or co-authors. The court would ensure that the accused party
enjoys all his rights to a fair hearing prior to his conviction or acquittal. He must be informed the
reasons of his arrest and detention, the right to be represented by a legal representative of his
own choice, time for him to prepare his fence and to be tried within a reasonable time. He has the
right to appeal against sentence and conviction and pending his appeal he may be granted bail or
kept in custody depending upon the nature of the offence (murder, drug trafficking, rape or
arson). He has also a right to silence. He may appeal to the Judicial Committee of the Privy
Council, in England, from a final decision of the Supreme Court (conditional leave).
9.12 Defence Counsel. In civil and/or criminal cases the plaintiff or accused party is represented
in court by a counsel who will do his best that his client enjoys a fair trial and to have damages
for plaintiff. He should not mislead the Court as he also owes a duty to the Court (Code of
Conduct).
9.13 Attorneys. An attorney (avoué) is specialized in drafting various complaints in the form of
proecipes which they send to the defendant in order for him to appear in court. The defendant is
also represented in court by his attorney. They are expert in various procedures (ex parte
application, injunctions, de benne esse examination, tierce opposition, new trial or la requête
civile, rogation, interpleader, l’arbitrage et la clause compromissoire, divorce proceedings)
instructing to the best of their capacity defence counsels or counsels for the prosecution with a
view to win the case.
9.14 Barristers. They hold an LLB (Hons) degree in general from UK or local universities in
Mauritius. The Law Practitioner’s (Amendment) Act 2011 provides all the requirements for a
person to become a barrister with respect to training, examinations and education requirements,
Pupilage Master and after an oath before the Chief Justice their names appear on the Rolls
officially as a qualified barrister. They may wish and choose to become avocats du Parquet or
private barristers. In Mauritius, most Magistrates are recruited from les avocats du Parquet by
the Judicial and Legal Service Commission (JLSC) provided they have more than 02 years as a
practising barrister.
9.15 Notary. All requirements as to training and education requirements are provided in The
Law Practitioner’s (Amendment) Act 2011. Only examinations held and conducted by the
Council Vocational Legal Education (CVLE) and its Board are recognized as such. Successful
candidates may then undergo two years of pupilage and after an oath before the Chief Justice of
the Supreme Court they may now draw deeds on behalf of their clients.
9.16 Judges and the Chief Justice.
Section 77 Constitution 1968 Appointment of Judges of Supreme Court
(1)The Chief Justice shall be appointed by the President acting after consultation with the Prime
Minister.
(2)The Senior Puisne Judge shall be appointed by the President, acting in accordance with the
advice of the Chief Justice.
(3)The Puisne Judges shall be appointed by the President, acting in accordance with the advice of
the Judicial and Legal Service Commission.
(4)No person shall be qualified for appointment as a Judge of the Supreme Court unless he is,
and has been for at least 5 years, a barrister entitled to practice before the Supreme Court.
(5)Where the office of Chief Justice is vacant or the person holding that office is for any reason
unable to perform the functions of the office, those functions shall be discharged by such one of
the other Judges of the Supreme Court as may be designated in that behalf by the President
acting in accordance with the advice of the person holding the office of Chief Justice
Provided that if the office of Chief Justice is vacant or if the person holding that office is on
leave of absence, pending retirement, or if the President, acting in his own deliberate judgment,
considers that it is impracticable to obtain the advice of that person owing to that person’s
absence or illness, the President shall act after consultation with the Prime Minister.
(6)Where the office of Senior Puisne Judge is vacant or the person holding that office is acting as
Chief Justice or is for any reason unable to perform the functions of the office, such one of the
Judges of the Supreme Court as the President, acting in accordance with the advice of the Chief
Justice, may appoint shall act in the office of Senior Puisne Judge.
(7)Where the office of any Puisne Judge is vacant or where a person holding the office of Puisne
Judge is acting as Chief Justice or as Senior Puisne Judge or is for any reason unable to perform
the functions of his office or where the Prime Minister, having been informed by the Chief
Justice that the state of business in the Supreme Court requires that the number of Judges should
be temporarily increased and having consulted with the Chief Justice, request the President to
appoint an additional Judge, the President, acting in accordance with the advice of the Judicial
and Legal Service Commission, may appoint a person qualified for appointment as a Judge of the
Supreme Court to act as a Puisne Judge of that court
Provided that a person may act as a Puisne Judge notwithstanding that he has attained the age
prescribed for the purposes of section 78 (1).
(8)Any person appointed under this section to act as a Puisne Judge shall, unless he is removed
from office under section 78, continue to act for the period of his appointment or, if no such
period is specified, until his appointment is revoked by the President, acting in accordance with
the advice of the Chief Justice
Provided that a person whose appointment to act as a Puisne Judge has expired or has been
revoked may, with the permission of the President, acting in accordance with the advice of the
Chief Justice, continue to act as such for such a period as may be necessary to enable him to
deliver judgment or to do any other thing in relation to proceedings that were commenced before
him previously thereto.[Amended 48/91]
9.17 The other protagonists. They are the Attorney-General, Assistant Solicitor-General,
clerks, ushers and officers of the Courts.
9.18 Summary. For a country to function properly and that there is law and order it is important
to have a judiciary which is completely autonomous and independent.
9.19 Further reading
R.P.Gunputh (2012): The professional and vocational training of lawyers according to the
Anglo-Saxon model in a mixed legal system
9.20 Activities
1. Write short notes on the following:
(a) a barrister.
(b) a notary.
(c) a solicitor.
(d) A magistrate of the Intermediate Court.
2. Nomination of Judges of the Supreme Court. Explain.
3. The role of the President of the Republic of Mauritius and the Prime Minister in the
nomination of judges of the Supreme Court.
4. What do you understand by déni de justice?
UNIT 10 – LES DROITS SUBJECTIFS – LES DROITS PATRIMONIUAX ET LES
DROITS EXTRAPATRIMONIAUX
10.1
Le droit objectif
Le droit objectif mauricien se compose de toutes les règles légales régissant les rapports des
personnes qui vivent dans la société mauricienne. Ces règles sont assorties de sanctions
juridiques, c’est-à-dire de contraintes appliquées par les autorités publiques mauriciennes. Par
exemple, le Code civil mauricien oblige l’acheteur à payer le prix (l’article 1582 du Code civil
mauricien)13 au jour prévu dans le contrat de vente (l’article 1650 du Code civil mauricien)14 ou,
à défaut de stipulation des parties, au jour où doit se faire la délivrance de la chose vendue
(article 1651 du Code civil mauricien)15. Si l’acheteur n’exécute pas de son propre gré cette
obligation imposée par le Code civil, le vendeur peut agir en justice et obtenir un jugement
condamnant l’acheteur à payer. Si, en dépit de cette condamnation, l’acheteur ne paye pas, le
vendeur peut recourir à l’exécution forcée de l’obligation de l’acheteur. En l’absence d’une
sûreté spécifique, tous les biens de l’acheteur servent de gage commun du vendeur et celui-ci
peut poursuivre, à égalité avec d’autres créanciers, l’exécution forcée du paiement sur tous les
biens de l’acheteur (les articles 213716 et 214117 du Code civil mauricien). Il est utile de rappeler
une spécificité du droit civil mauricien par rapport au droit civil français : outre la loi (Acts) et les
règlements (Regulations), les règles dont se compose le droit objectif mauricien se trouvent aussi
dans les jugements de la Cour suprême (Judgments). En effet, les raisons historiques expliquent
que (il s’agit des sections 2 et 4 de l’Ordonnance n° 2/1850), et ce en dépit de l’article 5 du Code
civil mauricien18, le raisonnement exprimé dans tel ou tel jugement de la Cour suprême de
Maurice sera obligatoirement suivi par cette même juridiction ou par une juridiction inférieure
(District Court, Intermediate Court) dans une future affaire portant sur la même question
juridique. Tout ça jusqu’au revirement de la jurisprudence. Ainsi, dans l’arrêt de la Cour
13
« La vente est une convention par laquelle l'un s'oblige à livrer une chose, et l'autre à la payer. »
« La principale obligation de l'acheteur est de payer le prix au jour et au lieu réglés par la vente. »
15
« S'il n'a rien été réglé à cet égard lors de la vente, l'acheteur doit payer au lieu et dans le temps où doit se faire
la délivrance. »
16
« Quiconque s'est obligé personnellement, est tenu de remplir son engagement sur tous ses biens mobiliers et
immobiliers, présents et à venir. »
17
« Les biens du débiteur sont le gage commun de ses créanciers; et le prix s'en distribue entre eux par
contribution, à moins qu'il n'y ait entre les créanciers des causes légitimes de préférence. »
18
« Il est défendu aux juges de prononcer par voie de disposition générale et réglementaire sur les causes qui leur
sont soumises. »
14
Suprême DPP vs Mootoocarpen (1988) MR 195 : “It is quite clear that if a treatise were to be
written on Mauritian Law, the sources of our law would not be limited to statute but would have
to include case-law."
10.2
Les droits subjectifs
Les droits subjectifs sont les prérogatives reconnues aux sujets de droits (titulaires de droits) par
le droit objectif. Par conséquent, les sanctions juridiques prévues par le droit objectif (l’exécution
forcée, les dommages et intérêts) protègent les droits subjectifs. Le droit subjectif est le droit de
faire ou d’exiger quelque chose sous la sanction étatique.
Par exemple, le droit du propriétaire sur un meuble ou un immeuble qui lui appartient est un droit
subjectif qui s’appelle droit de propriété. Le droit du vendeur de demander de l’acheteur le
paiement du prix est aussi un droit subjectif qui s’appelle droit de créance.
Un courant théorique (Duguit et Kelsen) a remis en question l’existence de la catégorie des droits
subjectifs. Selon ce courant, il n’y a pas de droit subjectifs appartenant aux personnes qui
s’appellent titulaires de droits ; il n’y a que des situations juridiques auxquelles il faut appliquer
des règles de droit objectif. D’une part, il est vrai que le droit objectif ne se réduit pas à
l’attribution de droits subjectifs aux titulaires de droit. Par exemple, le Criminal Code Act 1838
(Code pénal mauricien) ne confère pas de droits subjectifs aux sujets de droit, il réprime des
comportements déviants tels que le meurtre (les articles 21519 et 22220 du Code pénal mauricien),
le vol (l’article 30121) etc. D’autre part, il n’est pas possible de contester l’existence de droits
subjectifs, car ils sont une réalité du droit mauricien.
19
« L’homicide commis volontairement est qualifiée de meurtre. »
“(1) Any person who is convicted of –
(a) murder or murder of a newly born child, shall be sentenced to penal servitude for life or, where the Court is
satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence and
has entered those circumstances on the record of the proceedings, for a term not exceeding 60 years;
(b) attempt at murder or attempt at murder of a newly born child, shall be liable to penal servitude for life or,
where the Court is satisfied that substantial and compelling circumstances exist which justify the imposition of a
lesser sentence and has entered those circumstances on the record of the proceedings, for a term not exceeding
60 years.”
21
“(1) Any person who fraudulently abstracts anything not belonging to himself shall commit larceny and be liable
on conviction to imprisonment, and to a fine not exceeding 100,000 rupees.
(2) The abstraction of property by the husband to the prejudice of the wife, or by the wife to the prejudice of the
husband, shall not give rise to a prosecution.”
20
Les droits subjectifs, en droit civil, sont tantôt patrimoniaux tantôt extrapatrimoniaux.
10.3
Les droits patrimoniaux
Les droits subjectifs patrimoniaux sont susceptibles d’une évaluation pécuniaire. Ils sont
appréciables en argent et constituent le patrimoine de leur titulaire. Le droit de propriété et le
droit de créance sont les droits patrimoniaux. Un exemple est une maison de 2 500 pieds carrés
située à Quatre-Bornes et valant 5 000 000 roupies. En réalité c’est le droit de propriété de cette
maison qui vaut 5 000 000 roupies. Il s’agit d’un droit patrimonial qui peut être exprimé en
argent. Ou encore, lorsque d’après un contrat de vente d’une voiture Mitsubishi fabriquée en
2003, l’acheteur doit payer un prix de 375 000 roupies, la somme en question fait l’objet d’une
créance du vendeur. Cette créance est donc un droit patrimonial exprimé en argent.
Les droits patrimoniaux s’appellent biens et peuvent être transmis aux tiers ou saisis par les
créanciers.
10.3.1 La notion de patrimoine
Toute personne physique et morale possède un patrimoine ; les mêmes éléments (droits
patrimoniaux) composent le patrimoine dans tous les cas. Le patrimoine apparaît au jour de la
naissance/création d’une personne et disparaît au jour de son décès/sa disparition.
Le patrimoine se définit comme un ensemble de biens (droits subjectifs à caractère
patrimonial) et obligations de nature financière et est une universalité de droit. L’universalité de
droit est un ensemble de biens (voitures, livres, etc.) et des dettes considérées comme un tout,
comme une seule unité soumise à des règles différentes que celles appliquées aux choses qui la
composent envisagées isolément (par exemple, on n’applique pas les mêmes règles au legs d’une
chose (une voiture par exemple) et à la succession de tout le patrimoine de la personne décédée).
Le patrimoine comporte donc un actif, qui se compose des droits subjectifs appréciables en
argent, et un passif, où rentrent les obligations exprimables en argent.
Le patrimoine se compose des biens, qui sont les droits subjectifs appréciables en argent.
Parmi les biens, il y a, d’une part, bien corporels, et d’autre part, biens incorporels. Les biens
corporels sont les choses matérielles ayant une valeur financière (par exemple, une maison valant
4 000 000 roupies située à Quartier Militaire, une voiture de marque Kia valant 425 000 roupies
etc.). En réalité, ce sont les droits subjectifs portant directement sur ces biens (notamment la
propriété) qui font partie du patrimoine. Les biens incorporels sont les droits subjectifs ayant une
valeur financière et ne reposant pas directement sur une chose corporelle (une créance de prix de
150 000 roupies par exemple).
Comme le patrimoine est une universalité de droit, le passif répond de l’actif. Plus
précisément, tout l’actif répond du passif. Il faut donc impérativement rappeler qu’en droit
mauricien, faute d’une sûreté spécifique (un gage ou une hypothèque, une fixed charge) tous les
biens de l’acheteur servent de gage commun du vendeur et celui-ci peut poursuivre, à égalité
avec d’autres créanciers, l’exécution forcée du paiement sur tous les biens de l’acheteur (les
articles 213722 et 214123 du Code civil mauricien). En effet, le créancier impayé peut saisir un
bien quelconque du débiteur, le faire vendre et se payer sur le prix. Tous les créanciers d’un
même débiteur ont ce même droit : on les appelle créanciers chirographaires. En revanche, un
créancier aura la priorité dans la saisie d’un bien et la réalisation de sa créance s’il existe à son
profit une sûreté sur ce bien (l’article 2142 du Code civil mauricien)24, par exemple un gage, une
hypothèque ou une fixed charge. Un tel créancier s’appelle créancier privilégié. Le patrimoine
est aussi une universalité de droit en ce sens qu’au jour du décès d’une personne, ses héritiers ou
légataires universels reçoivent les biens à condition de payer les dettes du défunt.
Le patrimoine est une sorte de personnalité économique de l’individu (hommes et les femmes
sans distinction). Seules les personnes peuvent avoir un patrimoine et il n’y a pas de patrimoine
sans titulaire, même si, dans ce dernier cas, le Code civil mauricien prévoit une petite entorse à la
règle à propos des trusts (l’article 1100-2 du Code civil)25. En droit mauricien, il y a deux types
de personnes. Il existe, d’une part, les personnes physiques qui sont les êtres humains, et d’autres
part, les personnes morales, qui sont les groupements de personnes physiques dotés d’un
patrimoine et des organes de représentation qui expriment leur volonté et agissent en leur nom
22
« Quiconque s'est obligé personnellement, est tenu de remplir son engagement sur tous ses biens mobiliers et
immobiliers, présents et à venir. »
23
« Les biens du débiteur sont le gage commun de ses créanciers; et le prix s'en distribue entre eux par
contribution, à moins qu'il n'y ait entre les créanciers des causes légitimes de préférence. »
24
« Les causes légitimes de préférence sont les privilèges et hypothèques ainsi que les sûretés fixes ou flottantes. »
- Il s’agit d’une liste dressée exempli causa et pas d’une liste exhaustive.
25
« Le bien fiduciaire formé de biens et de droits transférés en fiducie, constitue un patrimoine d'affectation
autonome et distinct de celui du constituant, du fiduciaire ou du bénéficiaire, sur lequel aucun d' entre eux n'a de
droit réel. »
(directeurs, conseils d’administration, etc.). Les sociétés commerciales (companies) et les
associations, par exemple, sont les personnes morales.
Toute personne a un patrimoine, même si le passif dépasse l’actif. Dans ce dernier cas le
patrimoine se ramène à l’aptitude à acquérir les droits subjectifs patrimoniaux. En ce sens-là, le
patrimoine est intransmissible entre vifs : on peut aliéner une ou plusieurs choses (vendre une
voiture ou un livre, donner une maison, par exemple) mais on ne peut jamais aliéner, c’est-à-dire
renoncer à cette aptitude de devenir propriétaire de nouvelles choses.
Finalement, chaque personne n’a qu’un seul patrimoine et celui-ci sert à répondre de toutes
les dettes de cette personne. Une personne ne peut créer toute seule plusieurs patrimoines et dire
qu’un seul d’entre eux répondra de ses dettes. Cependant, une personne physique peut parvenir à
ce résultat en créant une société commerciale à responsabilité limitée. Cette société est une
personne morale, qui a son propre patrimoine qui répond de ses dettes. Le patrimoine personnel
du créateur de cette société commerciale ne répond pas, sous réserve d’abus, des dettes de la
société.
Le patrimoine se compose essentiellement des droits réels et des droits personnels (créances).
10.3.2 Les droits réels
Les droits réels (du latin res qui veut dire ‘chose’) reposent directement sur une chose et sont
opposables erga omnes, c’est-à-dire à tous les tiers. Les droits réels peuvent être principaux ou
accessoires. Les premiers ont une existence autonome et indépendante, alors que les seconds
nécessitent l’existence d’une créance. Quant aux droits réels accessoires, il s’agit des sûretés
réelles (droit de gage, droit d’hypothèque).
10.4
Le droit de propriété. L’article 544 du Code civil mauricien définit la propriété comme
« le droit de jouir et disposer des choses de la manière la plus absolue, pourvu qu’on n’en fasse
pas un usage prohibé par les lois ou par les règlements ». De cette définition résultent trois
attributs du droit de propriété :
-le droit d’user de la chose (usus) ;
-le droits d’en retirer tous les fruits et produits (récoltes, loyers, intérêts, etc.) (fructus) ; et
-le droit de disposer de la chose, matériellement (consommation, destruction, modification de
sa structure) ou juridiquement (vente, donation, bail, etc.) (abusus).
Le droit de propriété est exclusif en ce sens qu’il ne peut pas y avoir deux propriétaires
exclusifs (qui ont tous les pouvoirs complets) sur une même chose ; en revanche, il peut y avoir
deux ou plusieurs copropriétaires (qui ont les pouvoirs limités et complémentaires sur la chose).
La propriété englobe non seulement la chose telle qu’elle est initialement, au moment de la
création ou de l’acquisition du droit, mais aussi tout ce qui s’unit ou s’incorpore à la chose
(l’article 551). Ainsi, le propriétaire d’un terrain est aussi le propriétaire de ses constructions et
plantations sur ce terrain (l’article 553 du Code civil mauricien)26.
Le droit de propriété peut être limité par la loi, en cas d’expropriation (privation forcée de la
propriété) par exemple. De plus, il est limité par les rapports de voisinage. En cas de troubles
anormaux de voisinages (bruits, odeurs et fumées insupportables), le propriétaire de fonds voisin
(c’est-à-dire du terrain voisin), victime des troubles, peut engager la responsabilité de l’autre.
Finalement, le droit de propriété peut être limité par le contrat : par exemple, le bénéficiaire
d’une donation s’engage à ne pas aliéner (vendre ou donner) le bien qui en fait l’objet pendant un
temps (l’article 900-1 du Code civil mauricien)27.
Le droit de propriété est en principe éternel, perpétuel, à condition, bien sûr, que la chose qui
en est l’objet existe matériellement. Il ne se prescrit pas par l’écoulement du temps, même si
pendant ce temps la chose n’est pas utilisée (40 ans, 50 ans ou plus). Il n’y a donc pas de
prescription extinctive du droit de propriété. En revanche, si un tiers use de la chose d’autrui
pendant un certain temps, il peut devenir propriétaire de cette chose par prescription acquisitive,
ce qui fera le propriétaire initial perdre son droit de propriété.
10.5
L’usufruit. L’usufruit est un démembrement (une division) de la propriété : il confère à
son titulaire (usufruitier) une partie des prérogatives appartenant au plein-propriétaire. Le
26
« Toutes constructions, plantations et ouvrages sur un terrain ou dans l’intérieur, sont présumés faits par le
propriétaire à ses frais et lui appartenir ».
27
« Les clauses d'inaliénabilité affectant un bien donné ou légué ne sont valables que si elles sont temporaires et
justifiées par un intérêt sérieux et légitime. Même dans ce cas, le donataire ou le légataire peut être judiciairement
autorisé à disposer du bien si l'intérêt qui avait justifié la clause a disparu ou s'il advient qu'un intérêt plus
important l'exige. »
propriétaire qui a créé un usufruit sur la chose qui lui appartient n’est plus le plein-propriétaire
mais le nu-propriétaire : il est temporairement privé des prérogatives qu’il a données à
l’usufruitier.
L’usufruit est le droit d’user de la chose (usus) et de percevoir les fruits (fructus) d’une chose
appartenant à autrui. L’usufruitier peut aussi louer la chose qui fait l’objet de l’usufruit. Il peut
aussi vendre ou donner son droit d’usufruit. En revanche, l’usufruitier n’a pas le droit de disposer
de la chose, ni matériellement ni juridiquement (l’article 578 du Code civil mauricien) 28 : il ne
peut pas vendre la chose, ni la donner.
L’usufruitier doit se servir de la chose en bon père de famille, c’est-à-dire comme une
personne judicieuse et raisonnable. Il doit ainsi payer les charges annuelles (taxes et impôts),
effectuer certains travaux de réparation (petites réparations), ne pas dégrader la chose, etc.
L’usufruit est, de par sa nature, un droit temporaire : il est limité à la durée de la vie de
l’usufruitier-personne physique (l’article 617 du Code civil)29 ou à 30 ans si l’usufruitier est une
personne morale (l’article 619)30.
L’usufruit peut porter sur toutes les sortes de chose (l’article 581)31.
10.6
Les servitudes. Les servitudes sont définies dans l’article 637 du Code civil mauricien :
« Une servitude est une charge imposée sur un héritage pour l’usage et l’utilité d’un héritage
appartenant à un autre ». La servitude est donc un rapport qui existe entre deux biens
immobiliers : le fonds (terrain) dominant qui bénéficie de la servitude et le fonds servant qui la
supporte. Il ne s’agit pas de rapport entre deux propriétaires, c’est-à-dire entre deux personnes.
Exemples : servitude de passage, servitude de non construction… .
La conséquence principale en est que la servitude se transmet activement et passivement à
tout nouveau propriétaire du fonds dominant et du fonds servant (en cas d’achat d’un de ces
terrains ou de leur donation). Le propriétaire du fonds dominant peut se servir de la servitude
28
« L’usufruit est le droit de jouir des choses dont un autre a la propriété, comme le propriétaire lui-même, mais à
la charge d’en conserver la substance. »
29
« L’usufruit s’éteint : Par la mort de l’usufruitier (…) »
30
« L’usufruit qui n’est pas accordé à des particuliers ne dure que trente ans. »
31
« Il peut être établi sur toute espèce de bien meubles ou immeubles ».
(par exemple, passer sur le terrain d’autrui, construire sur ce terrain) et le second doit la
supporter (laisser l’autre passer sur son terrain ou y construire). La servitude dure aussi
longtemps qu’il existe la chose qui en fait l’objet : elle est perpétuelle. Cependant, la servitude
peut être perdue si n’est pas utilisée pendant 30 ans (l’article 706)32. Si le contrat stipule que la
servitude est temporaire, elle cessera à l’expiration du temps prévu dans le contrat.
La servitude est souvent établie par un contrat.
Le propriétaire du fonds servant doit supporter la servitude, mais il n’a aucune obligation
positive. Par exemple, le propriétaire du fonds servant doit supporter la servitude de passage,
mais n’a pas l’obligation de réparer la voiture du propriétaire du fonds dominant qui s’en sert
pour exercer son droit de passage.
10.6.1 Les droits personnels (créances)
Les droits personnels (créances) sont le pouvoir qu’a une personne (créancier) envers une
autre (débiteur). La créance autorise le créancier à demander au débiteur de donner quelque
chose, de faire quelque chose ou de ne pas faire quelque chose (voir l’article 1101 du Code
civil)33.
A la différence des droits réels dont le nombre est limité, le nombre de créances est illimité.
Les obligations qui sont indissolublement liées aux créances peuvent être de donner, de faire
ou de ne pas faire.
L’obligation de donner est l’obligation de transférer la propriété d’une chose. En droit
mauricien, le principe veut que le transfert de la propriété de la chose se fasse au moment de la
conclusion du contrat (les articles 113834 et 158335 du Code civil). L’obligation de donner est
donc née et exécutée au moment de la conclusion du contrat. Cependant, il peut arriver que
32
« La servitude est éteinte par le non-usage pendant trente ans. »
« Le contrat est une convention par laquelle une ou plusieurs personnes s'obligent, envers une ou plusieurs
autres, à donner, à faire ou ne pas faire quelque chose. »
34
« L’obligation de livrer la chose est parfaite par le seul consentement des parties contractantes.
Elle rend le créancier propriétaire et met la chose à ses risques dès l’instant où elle a dû être livrée, encore que la
tradition n’en ait point été faite, à moins que le débiteur ne soit en demeure de la livrer ; auquel cas la chose reste
aux risques de ce dernier. »
35
La vente « est parfaite entre les parties, et la propriété est acquise de droit à l'acheteur à l'égard du vendeur, dès
qu'on est convenu de la chose et du prix, quoique la chose n'ait pas encore été livrée ni le prix payé. »
33
l’obligation de donner soit exécutée après la conclusion du contrat. Par exemple, lorsque le
vendeur vend une quantité ou un nombre de choses de genre (légumes, sucre, sel, etc.) le
transfert de propriété se produit au moment où la quantité ou le nombre de ces choses est
individualisé et remis à l’acheteur (par exemple, la remise d’un kilo de légumes). C’est à ce
moment que l’obligation de donner est exécutée.
L’obligation de faire est l’obligation d’accomplir un acte positif au profit du créancier.
L’obligation de livrer la chose vendue à l’acheteur est une obligation de faire liée à l’obligation
de donner. L’obligation de fabriquer la chose commandée par le client (dessiner les plans
architecturaux par exemple) est une obligation de faire.
L’obligation de ne pas faire est l’obligation de s’abstenir de faire quelque chose. L’obligation
de non-concurrence d’un ancien salarié au profit d’un ancien employeur pendant un temps (deux
ans par exemple) est une obligation de ne pas faire.
Les obligations peuvent être d’origine contractuelle ou légale. Les premières résultent d’un
contrat et les secondes directement de la loi. Par exemple, les articles 1382 et 1383 du Code civil
mauricien obligent l’auteur d’un préjudice (une porte cassée ou une voiture endommagée par
exemple) qui a commis une faute (un mauvais comportement) intentionnelle ou non intentionnel
à le réparer.
Les obligations civiles permettent au créancier d’agir en justice et de demander l’exécution
forcée si le débiteur s’obstine à ne pas donner satisfaction au créancier. Par exemple, si
l’emprunteur ne rembourse pas les mensualités de son prêt, le prêteur peut engager une
procédure d’exécution forcée (Sale of Immovables Act par exemple) et récupérer son argent.
Dans les obligations naturelles ce n’est pas possible. Cependant, si le débiteur d’une
obligation naturelle paye spontanément en sachant qu’il doit payer, il ne peut pas demander
qu’on lui restitue ce qu’il a payé. L’article 1235 alinéa 2 du Code civil est clair : « La répétition
n'est pas admise à l’égard des obligations naturelles qui ont été volontairement acquittées. » Les
obligations naturelles sont donc les obligations juridiques. Une obligation peut devenir naturelle
car elle a été ou aurait dû être civile mais s’est gâchée ou a été défectueuse. Par exemple, en cas
de prescription extinctive, où le créancier perd son droit parce qu’il ne l’a pas exercé pendant un
certain temps, le créancier perd la possibilité d’agir en justice contre le débiteur. Néanmoins, le
débiteur reste lié par une obligation naturelle et s’il paye volontairement, il ne peut pas exiger
qu’on lui rembourse l’argent. L’obligation d’aider financièrement un bon ami ou un frère en
difficulté financière est aussi une obligation naturelle fondée sur les exigences de la morale,
aucun remboursement de l’argent payé n’est possible.
Le débiteur doit, en principe, exécuter son obligation entre les mains du créancier et de
personne d’autre (sauf s’il y a stipulation pour autrui, au profit d’une tierce personne). Le
créancier ne peut demander l’exécution de sa créance qu’au débiteur et à personne d’autre.
10.6.2 Les droits patrimoniaux entre membres d’une famille
Il existe un certain nombre de droits patrimoniaux entre époux. Aux termes de l’article 212 du
Code civil mauricien « les époux se doivent mutuellement fidélité, secours, assistance ».
L’obligation de secours pour un époux équivaut à une créance alimentaire pour autre : si l’un des
poux ne peut pas travailler, en raison d’une maladie ou d’un handicap, l’autre a l’obligation de
lui fournir des aliments (argent, nourriture, vêtement, etc.). La créance en question est exprimée
ou appréciable en argent, il s’agit donc d’un droit patrimonial. De façon similaire, les enfants
mineurs ont une créance alimentaire envers leurs parents. Ceux-ci doivent leurs fournir des
aliments qui sont appréciables en argent, ce qui fait de la créance des enfants un droit patrimonial
(l’article 203 du Code civil)36. La créance alimentaire marche aussi en sens inverse, si les parents
sont « dans le besoin » (l’article 205 du Code civil).
10.7
Les droits extrapatrimoniaux
Les droits extrapatrimoniaux ne peuvent pas être exprimés en argent. Cependant, ces droits
peuvent produire des conséquences financières. Par exemple, le droit à l’honneur ne peut être
exprimé en argent, il s’agit d’un sentiment personnel du titulaire de ce droit portant sur sa propre
valeur en tant que personne. La même remarque vaut pour le droit à la vie privée. Cependant, en
cas de violation du droit à l’honneur, par insulte par exemple, le titulaire de ce droit pour
demander une somme d’argent au titre des dommages et intérêts (l’arrêt de la Cour suprême de
Maurice La Sentinelle Ltd contre J. R. Dayal 2000 SCJ 092). De plus, la violation du droit à la
36
« Les époux contractent ensemble, par le seul fait du mariage, l’obligation de nourrir, entretenir et élever leurs
enfants. »
vie privée d’une personne, par une révélation non autorisée, peut être financièrement
sanctionnée, en allouant les dommages et intérêts (une somme d’argent) à la victime.
Les droits extrapatrimoniaux sont intransmissibles (vente, donation par exemple) et
insaisissables (pas de possibilité de saisie ni de vente forcée).
10.8
Les droits extrapatrimoniaux entre membres d’une famille
Outre les droits patrimoniaux, il existe, au sein d’une famille, des droits extrapatrimoniaux.
Rappelons qu’aux termes de l’article 212 du Code civil mauricien « les époux se doivent
mutuellement fidélité, secours, assistance ». Un époux a donc le droit de demander de l’autre
qu’il lui soit fidèle et ce non seulement sexuellement mais aussi sentimentalement37. Ce droit
subjectif ne peut, bien sûr, être apprécié en argent. Par ailleurs, pendant le mariage, les époux ne
peuvent pas éteindre ce droit par une convention. De plus, chaque époux a le droit de demander à
l’autre de l’assistance, c’est-à-dire du soutien moral dans les moments difficiles (maladie,
chaumage, etc.). Une fois de plus, ce droit ne peut être évalué en argent.
Les droits de la personnalité en tant que droits extrapatrimoniaux
Les droits de la personnalité sont ceux qui sont inhérents à toute personne humaine, qui
appartiennent à tout homme et à toute femme par le seul fait d’appartenir à l’espèce humaine.
Ces droits – même si leur violation peut engendrer des conséquences financières - sont
extrapatrimoniaux, car leur objet n’est pas appréciable en argent.
Le droit à la vie privée et le droit à l’image. Le droit à la vie privé est un droit extrapatrimonial
consacré dans notre Code civil (l’article 22)38. Ainsi, chaque Mauricien a le droit de s’opposer à
une divulgation non-autorisée, par les médias ou d’autres voies, d’éléments de sa vie privée (sur
ses vacances ou sur ses fréquentations par exemple).
37
Ainsi, porte atteinte à l’obligation de fidélité un époux qui entretient une relation « amicale » trop proche (il
passe trop de temps avec elle, il lui donne des détails trop personnels sur sa vie familiale) avec une dame, tout en
négligent les besoins sentimentaux de son épouse légitime.
38
« Chacun a droit au respect de sa vie privée.
Les juridictions compétentes peuvent, sans préjudice de la réparation du dommage subi, prescrire toutes mesures,
telles que séquestre, saisie et autres, propres à empêcher ou faire cesser une atteinte à l’intimité de la vie privée.
Ces mesures peuvent, s’il y a urgence, être ordonnées par le juge en chambre. »
Le droit à l’image est aussi un droit extrapatrimonial, portant sur un objet non appréciable en
argent qui est l’image d’une personne. Ainsi, chaque Mauricien a le droit de s’opposer à une
reproduction de son image sans son autorisation.
Il est sûr que les personnes physiques (les êtres humains) ont le droit à la vie privée et à l’image :
peu importe que la personne soit une personne publique ou une personne privée39. A propos de la
personne publique (artiste, politicien, etc.), la Cour de cassation rappelle qu’elle aussi a le droit à
la vie privée (Cass. 2ème 14 novembre 1975). Relèvent de la vie privée, la vie chez soi, la vie
familiale, la vie intime ou amoureuse, la pratique religieuse, l’état de santé, etc. En ce qui
concerne les personnes morales, la protection de leur vie privée est parfois accordée (CA Aix 10
mai 2001).
Même si le droit à l’image est un droit extrapatrimonial, il peut créer des conséquences
financières. Par exemple, un sportif de haut niveau ou un acteur peut autoriser une société
commerciale à exploiter son image (dans sa publicité par exemple) contre rémunération. De plus,
la violation de la vie privée justifie qu’on attribue à la victime une somme d’argent au titre des
dommages et intérêts.
Le droit au respect et à l’inviolabilité du corps humain. En droit français, l’article 16-1 établit
le droit au respect du corps et à son inviolabilité, qui est aussi un droit extrapatrimonial. Le
respect du corps humain explique l’interdiction en France des conventions de mère porteuse, de
porter un enfant pour le donner à sa naissance à un couple, (l’article 16-7 du Code civil)40, alors
qu’à Maurice cette question pour l’instant est un vide juridique, aucune loi ne l’autorise ni
l’interdit. Il est d’ailleurs explicitement dit en droit français que « le corps humain, ses éléments
et ses produits ne peuvent faire l’objet d’un droit patrimonial », ce qui vise à protéger la dignité
de la personne humaine. On retrouve une idée équivalente dans la section 1441 de notre Human
39
Il est à noter qu’une personne privée (Monsieur ou Madame «tout le monde ») ne peut invoquer son droit à la
ère
vie privée ou à l’image en cas d’une photographie d’une foule ou d’un événement public (Cass. 1 11 fév. 1970).
40
« Toute convention portant sur la procréation ou la gestation pour le compte d'autrui est nulle. »
41
“No person shall (a) make or receive any payment for the supply of, or for an offer to supply, any tissue;
(b) seek to find a person willing to supply any tissue for payment;
(c) initiate or negotiate any arrangement involving the making of any payment for the supply of, or for an offer to
supply, any tissue;
(d) take part in the management or control of any association or combination of persons, the activities of which
consist of, or include, the initiation or the negotiation of any arrangement referred to in paragraph (c).”
Tissue (Removal, Preservation and Transplant) Act 2006. Pour les besoins de la science et de la
société mauricienne, le droit à l’inviolabilité du corps connaît quelques atténuations réglementées
dans la loi mentionnée plus haut. Ainsi par exemple, selon la section 4 “any person may make a
donation, to take effect forthwith, for the purpose of a transplant to the body of a relative of - (a)
any regenerative tissue from his body ; (b) any non-regenerative tissue from his body, where it is
certified by 2 medical practitioners that the removal of the tissue is not likely to endanger his
health”. De plus, il n’est pas possible de nier que le contrat medical, qui implique souvent une
atteinte au corps du patient (en cas d’intervention chirurgicale ou d’un examen approfondi), est
licite à Maurice. Dans les deux cas présentés plus haut l’atteinte au corps humain est tolérée car
elle s’explique par un intérêt thérapeutique, soit dans son intérêt soit dans l’intérêt d’autrui. En
revanche, en dehors de l’intérêt thérapeutique42, et lorsque l’acte est jugé inutile, aucune atteinte
au corps humain d’autrui n’est envisageable, même si cette autre personne donne son
consentement. Par exemple, en dehors des cas exceptionnels prévus par notre Criminal Code Act
(en cas de conception d’enfant par viol ou en cas de déformations extrêmes du fœtus), il est
interdit de pratiquer l’avortement sur la personne d’autrui. Cependant, les pratiques répandues du
tatouage et du piercing (pour les boucles d’oreilles ou autres) ne sont pas illégales car l’atteinte
portée au corps humain est très minime.
Le droit à l’inviolabilité du domicile. Chaque mauricien a le droit à l’inviolabilité du domicile,
l’endroit où il vit à titre permanent ou temporaire, qui est un droit extrapatrimonial. Il s’agit du
prolongement du droit à la vie privée. Ce droit appartient tant aux personnes physiques qu’aux
personnes morales (leur siège). De plus, peu importe qu’il s’agisse du propriétaire du domicile,
de son locataire ou d’un occupant à titre gratuit. Peu importe aussi que le domicile soit la
résidence principale ou secondaire. Il existe tout de même quelques atténuations. Par exemple, le
locataire doit subir les visites du propriétaire prévues dans le contrat de bail. De plus, le titulaire
du droit au domicile doit subir les interventions des autorités publiques (police, huissiers de
justice) prévues par la loi.
Le droit au secret. Chaque Mauricien a le droit au secret des correspondances (lettres et emails) et des correspondances téléphoniques (l’interdiction des écoutes téléphoniques, sauf dans
des cas prévues dans la loi et basés sur les besoins de la sécurité nationale).
42
La chirurgie esthétique rentre dans cet intérêt thérapeutique.
Le droit à l’honneur. Chaque Mauricien a droit à l’honneur, au respect de sa dignité et de sa
réputation. La violation de ce droit peut donner à la victime le droit aux dommages et intérêts.