Table of Contents
Section
Appointment of the Commissioners and Secretary
Introduction
Chapter 1 – District Courts
1.2
1.2
1.5
Civil jurisdiction
Criminal jurisdiction
Procedure for small claims
New Bail & Remand Court
1.7
1.7
Establishment of a new Remand court
Remand Court to be under Intermediate Court Magistrate
Family Matters
1.12
1.13
1.14
Family jurisdiction of District Court
Flexibility in referring family matters to other Courts
Abolition of National Adoption Council
Procedures in the District Court
Criminal Proceedings in the District court
1.16
1.16
1.16
1.16
1.17
1.18
1.19
1.20
1.20
1.21
1.22
1.22
1.23
1.24
1.24
1.25
1.26
Time limits for lodging complaints in District Court
Procedure for statutory contraventions
Court to dismiss cases lodged out of time
Power of the Court to waive time limit.
Simplified procedure in cases of medical record on injuries
Form of Complaint
Payment of fines with stamps using Post office network
Payment at any District Court, and extension of opening hours of
Cashier’s office
Simplified procedure in cases of non-payment
Recording of proceedings by tape or other modern methods
Failure of Counsel or witnesses to appear
Fines on witnesses failing to appear
Conduct of prosecution
DPP to use panel of junior private practitioners for prosecutions
Delegation of authority by DPP to discontinue a case
Trial and Judgment
Setting of date on which reserved judgments to be given
1.26
1.27
Extempore judgments in cases of bail
Wasted Costs order against legal practitioners
District Court Building
1.28
1.29
Standard of buildings and amenities
Redefinition of boundaries for Rose Hill and Curepipe Courts
Chapter 2 – Intermediate Court
2.1
2.2
2.3
Regionalisation of Intermediate Court
Use of one Magistrate only to try cases with exceptions
No flat from the DPP needed to lodge a prosecution
Family matters
2.4
Family jurisdiction
Civil & Criminal Lists
2.5
Separation of civil & criminal lists, perhaps also family list
2.6
2.7
Procedure in the Intermediate Court-Cases Relating to Drugs
Separate list for drugs cases under designated Magistrates
Chapter 3 – Supreme Court
3.1
3.2
3.4
3.5
3.6
3.7
3.8
3.11
3.12
3.12
3.14
3.15
3.16
3.17
3.18
3.19
3.20
3.22
Setting up of appeal and High Court Sections
Constitution of Court of Appeal Section
Separate accommodation for the two sections
Amendments to Constitution to give effect to this recommendation
President of the High court
Abolition of need for leave to appeal to the Privy Council
Appeal to the Privy Council as of right
Removal of distinction between bankruptcy division and Supreme Court
Application of Order 53 in judicial review cases
Procedure for granting of leave to move in judicial review cases
Setting up of give divisions of the High Court Section
Constitutional and Administrative Law Division
Commercial Division
Civil Division
Criminal Division
Family Division
Flexibility in allocating cases to divisions
Number of Judges in each division, and in each section of the Supreme
Court
3.23
3.23
3.24
3.25
3.26
3.26
3.27
3.27
3.28
List in divisions
Handling of road traffic cases
Amendments to Transcription & Mortgage Act
Dealing wit approvals from administrative bodies
Registration of documents
Amendments to Section 14.1 of Registration Duty Act
Conservator of Mortgages’ records to be updated
Permission to notaries to issue certificates of inscriptions
Post of master to be open to an Attorney
Chapter 4 – Civil matters
4.1
4.3
4.4
4.5
4.5
4.5
4.5
4.7
4.8
4.10
4.11
4.12
4.12
4.13
4.14
4.14
4.14
4.15
4.16
4.17
4.18
4.19
4.22
4.23
4.24
4.25
4.26
4.27
4.28
4.30
4.31
4.31
4.32
Delivery by registered post for summons
Similar procedure for National Pension Fund
Same procedure for other similar cases
All actions to be entered by way of Plaint with Summons
Exceptional use of Motion, as for judicial review cases
Third party and interpleader procedure
New rules to be established by a new Rules Committee
Plaintiff in undefended action not required to make out his case
Execution of judgments
Evidence from persons abroad
Evidence by written statement provided unchallenged
Time limit fro action against public officers to be same as general public
Law Reform Commission to decide on appropriate time limit.
Allowance of pleading in the alternative in contract an din tort
Pre-trial management
Strong attitude of Courts against adjournments & postponements
Trial to continue from day to day until completed
Timely pronouncement of judgment
Abolition of Inscription Falsi Procedure
Production of skeleton argument by respondent to an appeal
Setting up and composition of Rules Committee
Dissemination of information about rules and procedures to general public
Need to register documents purely for use in Court to be abolished
Flat fee fro all civil actions to provide alternative sources of revenue
Power to attorneys to administer oaths
Use of District Court for oaths and affidavits
Execution on different types of properly not subject to specific order
Representation of worker by Ministry of Labour to continue even on
appeal
Review or arrangements dealing with Industrial Relations
Juge de la Mise en Etat
Master’s role in interlocutory work
Master’s role in management of judicial work
Privacy of chambers work
4.33
4.33
4.34
Procedure for granting of decrees of divorce
Changes in the law relating to provisional and final decrees
Power to relieve fro failure to observe rules of Court
Chapter 5 – The appointment and Terms of Service of Judges,
Magistrates, and State Law Officers
5.2
Appointment of Chief Justice and Senior Puisne Judge
5.2
Appointment of other Judges and Magistrates
5.5
Institution of modern system of performance appraisal
5.6,7,8Appointment of Solicitor General, private Barrister, and additional member
of Judicial & Legal Service commission
5.10 Constitution of Judicial & Legal Service commission
5.11 New Judicial & Legal Service commission regulations to be enacted
5.13 Contract appointment for Judges
5.14 Retirement age for Judiciary, Magistracy, and State Law Office
Terms & Conditions
5.16 Minimum qualifications for entry into the Magistracy
5.17 Recruitment to the Magistracy from among private practitioners
5.23 Status of the Office of Director of Public Prosecutions
Staffing of office of the Director of Public Prosecutions
5.26 Transfer between State Law Office and Magistracy
Authority responsible for determining the additional remuneration & related
conditions of service and the number of judicial officers
5.27
5.29
Standing Committee for determining additional remuneration and related
terms of service and number of judicial and legal officers
Rules of conduct for the Judiciary
Chapter 6 – The State Law Office
6.2
6.3
6.4
6.5
6.6
Security of tenure of solicitor General
Office of Director of Public Prosecutions to be a distinct unit
Specialisation of parliamentary drafting work – distinct unit
Laws to be avail ale by means of modern technology
Assignment of State Law Officers to Government ministries and
departments
Chapter 7 – Criminal Matters
7.1
7.3
7.4
Granting of bail, and abolition of need to deposit money
Prohibition against departure – to lapse unless confirmed by Supreme
Court
Time limits for commencement of prosecution in Intermediate Court &
Supreme Court
7.5
7.5
7.6
7.7
7.7
7.8
7.9
7.10
7.11
7.12
7.13
7.14
7.15
7.16
Appeal against acquittal
Appeal on questions of fact
Referral for sentence to Court of Appeal Section
Community Service
Assistance of Probation Service
Incentive for timely plea of guilty
Recording of confessions on audio tape or video
Admissibility of written evidence in the absence of challenge
Seating arrangement in Court
Accused to address Court after Prosecution
Consideration of other offences of a similar nature
Referral by the District court to the Intermediate Court for sentence
Use of caution as an alternative to prosecution
Award of costs against prosecution
Chapter 8 – Taxation of costs
8.1
8.2
8.3
Procedure for speedy & adequate taxation of costs
Use of taxed costs as disincentive to unnecessary litigation
offer to defendant to settle
Chapter 9 – Arbitration
9.1
9.2
9.3.
Law on Arbitration to be enacted in English
Need for Ratification of 1958 New York convention on Foreign Arbitral
awards
Permanent court of Arbitration of Mauritius Chamber of Commerce &
Industry
Chapter 10 – Forensic & Pathology Service
10.2
10.3
10.3
New institute independent of Police for provision of services to both
prosecution & defence
Setting up of Government sponsored trust for that purpose
Members of that institute to be independent of each other
Chapter 11 – Administration of the courts and Tribunals
11.1
11.2
11.2
11.3
11.6
11.6
11.7
Training of Court officers
Appointment of Director of Court Service
Staffing of Court Service
Recruitment of Information Technology Manager
Integration of staff of Courts and Tribunals
Daily record of start of Court and time taken for each Court
Chief Justice may delegate liaison between Judiciary & Court Service to
one other Judge
11.8
11.8
Recruitment of expertise in building and related works
Provision of adequate physical court infrastructure, including two Court
rooms, public reception room, and robbing room
11.8 Proceedings in Court to be audible
11.9 Respondibility of Clerks for Court administration
11.11 Training in legal or management subjects for Court officers
11.12 Improvement of public relations between courts and the public
11.15 Performance appraisal for Court officers
Chapter 12 – The Legal Profession
12.2
12.2
12.3
12.3
12.4
12.5
12.6
12.7
12.7
12.8
12.9
12.10
12.11
11.12
12.12
Qualifications and Training for legal profession
Timing of professional examinations to be after pupilage or practical
training rather than before
Duties of Council for Legal Education
Strengthening of regulation of the legal profession
Law Society to be established under Statute
Compulsory membership of Bar Association and Law Society
Codes of ethics for law practitioners
Receipts to be issued by law practitioners
Right of clients to obtain written statement of progress of a case
Association of Attorneys and Notaries
Barristers who do not practice in court may enter into lawful association
Barristers in practice to remain independent but may share common
Chambers and services
Right of practice for lawyers employed by University of Mauritius
Statutory Complaints Committee concerning law practitioners
Statutory Complaints Committee concerning law practitioners
Chapter 13 – Continuing legal Education
13.1
13.1
13.2
Coordination of training between different bodies
Public awareness of training activities
Client care to feature tin training programmes
Chapter 14 – Judicial Studies board
14.1
14.3
14.4
Establishment of Judicial Studies Board
Newly appointed Magistrate to be allotted to a more senior Magistrate
Integration of all available resources
Chapter 15 – Legal Aid & Related Matters
15.2
15.3
15.4
Variation of criteria for granting of legal aid
Application of income and capital limit
Master to review rates payable
15.6
15.6
15.7
15.8
15.14
Calculation of legal aid rates
Sharing of legal aid work
Setting up of Citizens Advice Bureaux
Conciliation service for settling of small claims
Provision of compensation for criminal injuries
Chapter 16 – The Ushers
16.5
16.6
16.7
Continuing legal education for Ushers
Allowing Ushers to set up in private practice
Chief Justice to be responsible for Ushers” practicing certificate
Chapter 17 – Supreme Court Library
17.3
17.3
17.4
17.6
17.7
17.7
17.7
17.7
17.8
Provision of information on disks or other modern methods
All users including Judges who borrow an item to provide receipt
Accessibility of library resources
Copies of International Treaties to be available
Provision of payment for access to library facilities
Basic annual subscription
Use of account card for specific charges
Opening hours of library
Borrowing and return of books
Chapter 18 – Rodrigues
18.4
18.4
18.6
18.8
18.9
18.10
18.12
Appointment of full time Intermediate Court Magistrate
Jurisdiction of Court in Rodrigues
Private legal profession to be promoted
Application of different scale of fixed penalties
Designation at State Law Office of specialist officers for Rodrigues
Appointment of usher
Accommodation for young offenders
Chapter 19 – Incidental Matters
19.1
19.2
19.3
19.4
19.5
Use of constat amiable in cases of road accidents
Reform of Land Records
Qualifications for Registrar General and Official Receiver
Law Reform Commission to review law on contempt of court
Muslim Personal law
Chapter 20 – Concluding Remarks
20.2
20.2
Strengthening of independence of the Judiciary
Judiciary to manage its own budget
20.4
20.5
Improvement of relations with the public
Dedicated team for implementation of recommendations
Schedules
REPORT OF THE
PRESIDENTIAL COMMISSION
TO EXAMINE AND REPORT
UPON THE STRUCTURE AND OPERATION
OF THE JUDICIAL SYSTEM AND LEGAL PROFESSIONS
OF MAURITIUS
In accordance with the Presidential Commission Act 1997, His Excellency the
President of the Republic of Mauritius, on 28 July, appointed Lord Mackay of
Clashfern as Chairman and Sir Abdool Hamid Adam Moollan, QC, Mr Georges
André Robert, SA and Mr Kishore Sunil Banymandhub to be members of the
Commission. On 7 August, His Excellency further appointed Professor Michel
Borysewicz as a member of the Commisison. On 29 July 1997, Mr Mohamed
Mallam Areff Malla Hassam was appointed Secretary to the Commission
INTRODUCTION
0.1
Prior to commencing formal sittings, the Chairman of the commission
visited the Supreme Court, the Intermediate Court, all the Districts Courts
in Mauritius, the Industrial Court and the Court in Rodrigues. He also met
with many people involved in the legal system of Mauritius, Judges, Court
Officers, Ushers, those concerned with Tribunals, the legal profession, the
Police and the Prisons as well as those representing consumers. In
addition Members of the Commission paid visits to a number of the Courts
in Mauritius and the Court in Rodrigues.
0.2
On 28 July 1997, the Commission issued to the public a memorandum
inviting any person or body or group of persons who wished to make
representations to the Commission on any matter falling within their remit,
to do so by writing to the Secretary of the Commission on or before
Monday the 22 September 1997. This period was extended till 30
September 1997. The Commission received representations after that
date and these have been considered.
0.3.
The Commission held formal sittings in the period from Monday 13
October 1997 until Wednesday 5 November 1997 when they heard
evidence from a number of those who had submitted written
representations to the Commission as well as hearing evidence from
others on the basis that it might assist the Commission in the discharge of
its responsibilities. A list of those who submitted memoranda to the
Commission and of those who gave evidence before the Commission is
appended to this Report.
0.4
Before turning to the detailed consideration of the proposals which the
Commission wishes to recommend, it is convenient to indicate the general
principles on which the Commission has agreed to proceed.
0.5.
The legal system of Mauritius is well established and is based upon a
unique combination of French and Common Law provisions and principles
which are specially suitable to the situation, history, tradition and
communities of Mauritius. The Commission believes that Mauritius is well
placed to take advantage of international legal business if its legal system,
legal profession and judiciary are sensitive to the needs of the
international business community and adapt to meet these needs.
0.6.
The Commission has been concerned to ensure that the proposals it
makes are based upon a development of the existing system to seek to
remedy the substantial perceived difficulties rather than to recommend a
completely new structure. However, the perceived difficulties presented in
evidence to the Commission are of such a character as in our view to
require far reaching reforms.
0.7.
A complaint often repeated against the present system is that members of
the public who use the system, individuals, companies or groups do not
receive sufficient consideration from the Courts and the legal profession.
The time taken to reach decisions and the number of occasions on which
persons are required to attend Court without these attendances, so far as
they can discover, contributing to the resolution of the cases in which they
are interested, are extremely wasteful. We have received strong evidence
to suggest that clients are not kept sufficiently informed by their legal
representatives has been paid or what he or she has undertaken to do in
return for the payment. The Commission has considered it essential to
make proposals designed to deal effectively with such complaints.
0.8
Fundamental questions have also been raised about the constitutional
position of the Judiciary. In particular the relationship between the
Judiciary and the State Law Office, from which the Judiciary are
appointed, has been questioned. Evidence has been given about the
difficulty involved in the varied responsibilities of State Law Officers, many
of which they may be called upon to discharge at the same time, and the
nature of the appointments process and the constitution and function of
the Judicial and Legal Service Commission have been the subject of
considerable evidence. Many detailed questions have been raised.
0.9.
From the senior ranks of the legal profession concern has been expressed
that the integrity of the Judiciary is now being called into question to a
greater degree than in the past. And concern about the Judiciary being
appointed from the State Law Office has focused on the perception that
because of their background the Judges have no doubt, sub-consciously
inhaled an atmosphere which makes it difficult for them to entertain in a
very open manner challenges to the exercise of State Power.
0.10. We have also heard evidence of the difficulty of fixing hearings due to
unavailability of counsel instructed in the case and in criminal cases the
relationship of this difficulty to the constitutional provision relating to the
choice of counsel.
0.11. A further head of complaint and one which an inspection of the
arrangements in the various courts shows has considerable substance is
the poor standard of accommodation generally provided which, we have
been informed, is considerably lower in standard than the provision made
for the rest of the public service.
0.12. We have also heard a good deal of evidence about the inadequacy of the
arrangements for backup to the Judiciary in the form of management of
personnel, finance, buildings and information technology.
0.13. The final main head of complaint we heard was in relation to the terms of
service of the Judiciary and the State Law Office. We consider it obvious
that the highest quality of lawyer is required if the functions of Judiciary
and the State Law Office are to be properly performed, and if they are not,
the economic interests of the Republic of Mauritius are likely to be
substantially damaged and the people of Mauritius are not likely to obtain
the standard of service to which they are entitled.
0.14
We give this summary of the perceived difficulties in the present system to
indicate at this stage just how far reaching the remedies have to be. On
the other hand it has to be kept in mind that the Republic of Mauritius with
its population of 1.2 million needs a legal system and legal profession
which fully utilize the resources available in Mauritius. According, to
propose setting up a new court to deal with every particular subject matter
is likely to lead to undue specialisation and considerable pressure on the
total resources available for the legal system. We have generally taken
the view that the Courts should have, at the various levels, general
jurisdiction not related to particular subject matters but that special
arrangements may need to be made for adequately delaying in a flexible
way with specialist matters to give Judiciary, courts staff an d practitioners
a degree of experience in specialist matters without depriving the Courts
of their other talents.
Chapter 1
District Court
1.1
In the District Court of Flacq facing the presiding Magistrate is the
following eloquent instruction –
DEFEND
THE POOR AND FATHERLESS;
SEE THAT SUCH AS ARE IN NEED AND
NECESSITY HAVE RIGHT
KEEP THE SIMPLE FOLK BY THEIR RIGHT;
DEFEND THE CHILDREN OF THE POOR AND
PUNISH THE WRONG DOER.
This is surely a good introduction to our consideration of the District court.
CIVIL AND CRIMINAL JURISDICTION
1.2
At present the District Court has civil and criminal jurisdiction and we
consider that it should retain these jurisdictions. So far as the civil
jurisdiction is concerned we recommend that it should be maintained as at
present established.
So far as criminal jurisdiction is concerned we
recommend, having regard to the present volume of business, that the
sentencing power should be increased from power to impose a fine up to
Rs 2,000 to power to impose a fine up to Rs 10,000 but that it would be
unwise to increase the present maximum term of imprisonment which the
District Court can impose. We see no reason to prevent the District Court
imposing consecutive sentences in respect of a number of offences so
long as the total term to be served under these consecutive sentences
does not exceed the two year limit of the jurisdiction of the Court.
1.3
We turn to special proposals which require to be considered in the context
of the District Court.
SMALL CLAIMS
1.4
We received a considerable body of evidence from which it is clear that it
is highly desirable that improved arrangements should be available fro
cases of small value. At present, it is clear that to pay for a lawyer to
recover a comparatively small sum will mean an expenditure altogether
disproportionate to the matters at stake and may indeed exceed the
amount in dispute. This, in our opinion, is a denial of justice in respect of
these matters and means that those who wish to do so can trample on the
rights of those who have been damaged in a comparatively small way, as
for example, in connection with small purchases. We believe that the
present jurisdiction of the District Court and the arrangements made
therein do permit a person to come and orally state a claim which the
District Court has the opportunity to pursue without the intervention of
lawyer. This seems to be very little known and not at practices. We
therefore consider that it is unnecessary to set up a new tribunal in
Mauritius for dealing with small claims, but that the present jurisdiction of
the District Court enables this to be done by adaptation.
1.5.
We recommend that for cases up to Rs 25,000 a claimant should be able
to make an application to the District Court by filling in a form which would
state the claimant’s name and address, the name and address of the party
against whom the claimant wishes to claim, the amount of the claim if it is
for a definite amount, or the estimated amount if it is a matter which
requires to be estimated, and then provide space for a brief account of the
transaction and the way in which the claim arises. This form should be
lodged with the Court and a time allotted for the return of a reply. A copy
of this form should be served by the Clerk of the Court in the way which
we shall suggest later in connection with our recommendations about the
service of proceedings, on the party against whom the claim is made,
requiring that party to state again in a form provided with the service
whether or not the claim is disputed in full, or in part; if it is disputed in full,
brief account of the reasons an dif it is disputed only in part, provides for a
statement of the part in respect of which it is disputed and the reasons
therefore. If the person against whom the claim is made admits the claim
in whole or in part and wishes to pay the undisputed amount by
instalments the form should provide opportunity for this to be stated with
the amount of the weekly or monthly instalment the respondent wishes to
offer, stated. This reply should be lodged with the District Court within the
time allotted and a copy sent to the claimant. If the claimant wishes to
accept the offer made by the respondent that should be intimated to the
District Court with in fourteen days. If no such intimation is received within
fourteen days, the District Court should fix an appointment within one
month for the claimant and the respondent with the District Magistrate as
soon as possible for the determination of the matter. At that appointment,
the District Magistrate should provide both parties with an opportunity to
state their position and then the District Magistrate should determine the
matter in the light of all the information then provided. In order that this
procedure should work satisfactorily it ought to be informal and not to be
the subject of rigid rules. Having regard to the nature of the matter the
time that the District Magistrate is to devote to the dispute ought to be
quite short and to facilitate the presentation by the parties an explanatory
leaflet should be provided to each of tem. This leaflet should set out the
procedure indicating to the parties that the procedure is to be informal and
that this appointment will determine the issue between them and that they
should bring to it any documents they might have supporting their position
and such witnesses as they think might be able to help them. We consider
that a very summary procedure of this kind could deal with quite a volume
of small matters in a satisfactory way. If at the appointment the District
Magistrate concluded that the dispute involved a question of law of
substantial importance or that for some other reason the case was clearly
unsuitable for summary determination, there should be a discretion
available to the District Magistrate to send the case to be tried in the
ordinary way but at that stage the claimant should have the option of
dropping the case rather than proceeding. The procedure should provide
that the respondent may counter-claim in the process. The form should
state that the respondent in the claim may counter-claim if, for example,
the price of the goods the subject of the dispute was unpaid, provided that
the sum in question did not exceed Rs 25,000. if the respondent has
made a counter-claim and the District Magistrate decides to send the case
for trial in the ordinary way the respondent should have the option to drop
his claim without incurring further expense.
1.6
The District Court to deal with a small claim should be that of the
respondent in the claim, subject to the power in the District Magistrate to
send the case to another District Court if in all the circumstances that
seems more convenient. We would expect the time required for disposal
of these cases to be fairly short and that appointments should be allotted
on a basis which made it unnecessary for parties to wait ground for long
periods before their case was taken.
NEW BAIL AND REMAND COURT
1.7
It has been proposed to us, and the proposal seems to be supported by
the Director of Public Prosecutions, that there should be instituted a new
Remand Court to deal with all matters of bail and the conditions related
thereto, arising within Mauritius at Grand River North West not far from the
prisons complex there but completely distinct therefrom. The proposal is
one which in our view is highly desirable and we therefore recommend it.
It would obviate the necessity of a great deal of traveling for prisoners and
escorts between prisons and the various courts in Mauritius.
At the
present time there is a great deal of this traveling and escorting going on
which is very costly and which in our view it would be possible to avoid.
We consider that it would be appropriate that jurisdiction should be given
to this Court to deal with all matters of bail in whatever Court the case
against the accused would normally be taken. We consider it desirable
and recommend that this Court should be presided over by a Magistrate of
the Intermediate Court. In order that the Court should function properly
and efficiently it would be essential that the information relating to the
cases be available to the Magistrate there.
1.8
This is primarily a matter for police organisation but we underline strongly
the necessity for it if this new Court is to function properly.
FAMILY MATTERS
1.9
It has been suggested to us that there should be a new separate Family
Court in Mauritius.
It is obvious that family matters requiring the
intervention of Court can arise all over Mauritius and also that people of
very limited means can be involved. It is essential therefore, if justice is to
be done, that the Court handling family matters should be available to
litigants of comparatively small means as close to their domestic situations
as possible.
A Family Court would require therefore to have facilities
available all over Mauritius.
1.10. The Commission has noted that a number of people with problems of a
family nature come to the Chambers of the District Magistrate to seek his
or her advice. The District Magistrate is supported in the exercise of this
responsibility by the local officer or officers of the Probation Service. The
Probation Service appears, both in Mauritius and Rodrigues, to us to be a
service devoted to high standards and with a considerable base of
experience covering not only family matters that would fall within the
jurisdiction of a Family Court, but also aspects of the family that come
within the criminal jurisdiction of the Courts. We have been impressed by
the high quality of officers of that Department and would recommend that
their social work be upheld and promoted.
1.11
Where one of the parties does not accept the advice of the District
Magistrate the latter, in most cases, has no power to enforce his advice.
The District Court has at present jurisdiction to make Place of Safety
Orders for children and this requires a certificate from the Permanent
Secretary of the Ministry for Women’s Affairs. There is also presently
jurisdiction under the Domestic Violence Act in the District Court.
1.12
It has been suggested to us that many of the District Magistrates are
young people with very little experience that would qualify them to
discharge the functions of a Family Court.
On the other hand, our
impression is that with the support of the Probation Service, in cases
where the District Magistrate has given advice and it has been taken, the
matter is often satisfactorily resolved. We have therefore concluded it
would be more efficient and conducive to justice in Mauritius if the
traditional advisory function of the District Magistrate, which has flowed
from his position as “Juge de Paix”, were developed to give the District
Magistrate a full family jurisdiction including the power to make awards of
alimony, but with the exception that the power to make awards of alimony,
but with the exception that the power to make an order for divorce or
judicial separation or an order relating to the civil status of parties or
succession should be reserved to the Supreme Court. We shall refer to
the foregoing exception as “the reserved matters”. We recommend that
such a family jurisdiction should be conferred on the District Court. We
also recommend that the talents presently available in the Ministry for
Women’s Affairs which are used in order to produce certificates necessary
for the grant of a Place of Safety Order and the talents used in the
advisory service on family matters presently available should be joined
with those of the Probation Service to give as full a supporting service in
the important area of family jurisdiction as can be obtained.
POWER TO REFER TO OTHER COURTS
1.13. We further recommend that in relation to family matters, the District Court,
the Intermediate Court and the Supreme Court should have power to
direct that a case before it, having regard to the nature of the matter, the
circumstances of the parties and the need for expedition, could be sent
either to another location at which that Court sits or to a Court of a
different level. For example, if he District Magistrate felt that the case
involved issues of substantial general importance he would have power to
remit the case to the Supreme Court and the Supreme Court would have
power if it thought it appropriate to remit a case before it, in whole or in
part, to be dealt with at a particular Magistrate’s court.
ABOLITION OF NATIONAL ADOPTION COUNCIL
1.14
In this connection it has been suggested to us that the very specialist work
presently carried out by the National Adoption Council in relation to interstate adoptions particularly could well form part of the assembly of
expertise in family matters to which we have referred and we have
concluded that this indeed would be a wise course to adopt. We therefore
recommend that the National Adoption Council should be abolished and
that the staff expertise available therein be utilized as part of the support
to the family jurisdiction which we have mentioned earlier.
CONSIDERAITON OF PROCEDURE IN THE DISTRICT COURT
1.15
At present we consider that the arrangements for hearings in the District
Courts are producing a great deal of quite unnecessary waste of time for
members of the public and for the Magistrates and staff of the Court and
this is creating unnecessary waste of other resources also.
CRIMINAL PROCEEDINGS IN THE DISTRICT COURT
TIME LIMITS FOR COMPLAINTS
1.16
If one listens to proceedings in the District Courts for a little time one
quickly realizes that many of the cases in these Courts relate to matters
which are alleged to have taken place a very considerable time before the
hearing. The District Court, being the Lowest Court of law with criminal
jurisdiction in the Republic, is intended to be a Court where criminal
matters are disposed of summarily and therefore we think it desirable not
only that the procedure once a case is taken should be a simple as
possible, but that a case should be brought after the alleged incident or
incidents within a reasonably short time. It has been explained to us that
the work of formally preparing the case requires Police resources and that
this is a cause of delay in some matters. We have reached the conclusion
that if the District Court is to function properly in relation to the cases
which are within its competence then it is important that these cases
should be brought within a reasonably short time and that the necessary
arrangements by the Police ought to be made. We recommend that where
a complaint to the District Court does not involve personal injury to any
person it should be lodged within three months of the date of the alleged
occurrence, or if it is a continuing default when the default ceased.
Otherwise the complaint should be lodged within six months of the
occurrence, or if it is a continuing default when it ceased. We recommend
that for statutory contraventions it is sufficient to state the time and place
of the alleged contravention with the statutory provisions all edged to have
been contravened. If a complaint is lodged later than the relevant date we
recommend that the Court should dismiss it unless it is shown that the
delay was not the fault of the police or the prosecution.
MEDICAL RECORDS
1.17
If an injury has been caused to any person by the offence alleged to have
been committed the medical record of the appropriate doctor or hospital
certified as a correct copy of that record should be sufficient evidence of
the nature of the injury suffered and that it relates to the person whose
record it is said to be. If counter evidence is to be led, any competent
evidence of the injury would remain competent. Delays are presently
caused in such cases by the requirement that the doctor who did the
examination personally sign the relevant form. We consider this to be
wasteful and therefore we recommend that the law and practice be
changed in the way just described.
FORM OF COMPLAINT
1.18
The form of complaint should be a simple one enclosing a form to be
returned to the Court issuing the complaint, by the accused within fourteen
days stating whether he pleads guilty or not guilty to the complaint and if
the complaint contained more than one contravention, whether guilty or
not guilty in respect of each, and providing space for such explanation as
the accused wished to tender of his circumstances if he considered that
might have a bearing on the Court’s consideration of penalty. The notice
should also state that if the accused pleads not guilty or fails to return the
form a date will be fixed for his trial and it should invite him to telephone to
the District Clerk to seek to arrange a date and time suitable for him or if
he is to be legally represented to both himself and his legal adviser, and
that if he pleads guilty he will not be required to attend Court unless a nonmonetary penalty is to be considered. If a non-monetary penalty is to be
considered the accused will be summoned to Court; otherwise he will be
informed of the amount of the fine and required to pay it within twenty
eight days of receiving notification of its.
We believe that these
arrangements would remove a great deal of formal appearances before
the District Court, avoid a great deal of unnecessary waste of time and
resources and enable the District Court’s time to be more productively
used.
FIXED PENALTIES
1.19
In this connection we should also comment on the fixed penalty system
which already exists in Mauritius which appears to work well. The only
adverse comment we have had is that the amounts of fixed penalties fixed
for Mauritius may not be appropriate for Rodrigues in view of the different
financial circumstances generally prevailing there. We will return to this
point when we deal separately with Rodrigues. So far as the mechanism
for dealing with fixed penalty is concerned, we regard it as important that
the method of payment of the fixed penalty should be as flexible as
possible. For example, we recommend that a system on the lines of that
operating in France should be considered. There, one can purchase
stamps in two parts, for affixing to the fixed penalty form which is also in
two parts. One half of the form with one part of each stamp attached is
sent to the Court under whose authority the fixed penalty is imposed. The
other half of the form with the other half of each stamp attached is retained
as proof of payment. In Mauritius we feel that the Post Office may be the
most appropriate place for providing this service.
1.20
With development of computer technology in the District Courts it ought to
be possible for a person receiving a fixed penalty notice to pay at any
office of the District Court and in this connection we recommend that the
District Court offices remain open to receive money throughout the day. A
certificate from the District Court Clerk should, we recommend, be
sufficient proof of non-payment to enable Court proceedings to be taken to
enforce a penalty, unless the accused produces proof of payment in
response to a summons.
RECORDING OF PROCEEDINGS
1.21
We return now to the more general aspects of the procedure in the District
Court. No one who attends the sittings of the District Courts in Mauritius
can fail to be impressed with the time it takes to record the proceedings
because the Magistrates require to record them word for word, often
translating from Creole, and witnesses, and indeed sometimes those
presenting the cases for the prosecution or defence, are directed to “follow
the Magistrate’s pen” which dictates the speed at which the proceedings
can progress.
We consider this practice to be utterly wasteful of the
talents of the Magistrates as well as diverting them form the fundamental
judicial role into transcribers, as well as wasteful of the time of all those
concerned with court proceedings and we recommend that as rapidly as
possible a system by recording by tape or otherwise, using modern
technology be introduced in all the Courts.
FAILURE OF COUNSEL OR WITNESSES TO APPEAR
1.22
A further cause of delay which we have observed is that although all the
parties and their witnesses may be present, counsel for the accused is
unable to appear and explains to the Court by letter that this has occurred
usually on account of ill health and suggesting dates in the future which
will be convenient to him or her. We consider that in the light of the
simplified procedure which we has described where a trial is necessary,
that the convenience of the accused, his counsel and witnesses should be
ascertained as far as possible and a date and time of trial given which will
not be departed from except for the most cogent reason. We consider
that this adequately applies the constitutional provision dealing with choice
of counsel in criminal cases at the same time providing reasonable speedy
justice. Once this date and time is decided upon it should be intimated to
the accused and to all the witnesses by the Court in the manner of service
we shall deal with later.
Once this system has been introduced and
working well we consider that it would be appropriate to increase the
penalty on a witness for failure to turn up at Court on the day required to
Rs 2,000. The justification for this is that where the witness’s attendance
is required and where his absence is likely to impede the progress of a
case it is right that the penalty should be considerable if he fails to honour
the citation. One of the reasons for witnesses failing to turn up in the
present system is that often they have a very good idea that even if they
do turn up they will not be required as the case is unlikely to go ahead in
any event. Once that practice no longer obtains we consider a substantial
rise in the penalty to be clearly justified. If counsel fails to turn up we
consider this to be a matter for professional discipline.
As we later
recommend, the Court should have power to impose a Wasted Costs
Order if the Counsel is not able to substantiate a reasonable excuse.
CONDUCT OF PROSECUTION
1.23. We have also noticed that it is frequently the case at present that
proceedings in criminal matters before the District Court are adjourned in
the course of a hearing in order that submissions of law should be made
by a State Law Officer. We consider that it should be made clear in all
Courts that anyone who appears, be he legally qualified or not, as a party
if he is making his or her case to the Court is entitled to make submissions
in matters of law as well as of fact for the consideration of the Court.
1.24. We consider that the present system of prosecution by Police Officers,
while often in our observations well conducted, does give rise to difficulty
because of the need from time to time to refer back to the Director of
Public Prosecutions.
We recommend the introduction of a system in
which the Director of Public Prosecutions creates a panel of reasonably
Junior Members of the Bar approved for the purposes of presenting
prosecutions in the District Court and that these Junior Barristers should
be authorized to act and take decisions necessary in the course of hearing
a case in which they are briefed. For example, if a witness who is crucial
to the prosecution under cross-examination effectively retracts the
evidence on which the prosecution was based it seems utterly unfair to the
accused that the case should be adjourned to refer back to the Director of
Public Prosecutions and we recommend that the Director’s authority to the
panel of prosecuting barristers should include authority within the
discretion of the prosecuting barrister to abandon the case without
referring back to the Director of Public Prosecutions. We are of course
aware that important judgments may be involved in such circumstances.
If, for example, it appears that the retraction was as result of improper
pressure from any quarter then doubt may arise on the effect to be given
to the retraction but we consider that this is sufficiently dealt with by giving
the prosecuting barrister discretion to drop the case if he or she in their
professional judgment thought that right, or if there was a real difficulty
about the matter to refer back to the Director. This in our opinion, should
eliminate the need for unnecessary references to the Director which
simply delay matters and cause an accused person, often unnecessarily,
to be subject to continued proceedings when the basis on which they were
brought has been effectively destroyed.
TRIAL AND JUDGMENT
1.25
We consider that where a date and time has been fixed for trial the Court
should proceed with the trial on the date and as nearly as possible at the
time stated. A judgment should be made at the time the trial is fixed about
its probable length and we hope that it will be possible to give reasonably
precise times for the commencement of trials throughout a day rather than
requiring all witnesses to attend at the beginning of the court day.
It
should also be understood that where a trial does not finish on one day it
will be carried forward to the immediately following court day.
1.26. We have noted that at present if a judgment is required the Magistrates
tend to postpone giving of judgment to a specified date. Where judgment
is postponed we certainly regard it as very appropriate to specify the date
on which it is to be given but we recommend to the Magistrates that, for
example, in decisions involving bail a very simple extempore written
judgment should be sufficient.
WASTED COSTS ORDERS
1.27
We recommend that the District Court should have power to make Wasted
Costs Orders against those who represent the prosecution or defence.
The Wasted Costs Order would be against the lawyer personally and
would be made only in the event of it being clear to the Court that the
lawyer’s decision had involved costs which at the time the decision was
made were clearly unnecessary in the conduct of the case and involved
expense to the other party. We do consider that for example, where an
advocate for no good reason did not appear on a day on which he has
said he was available with the result that a trail had to be postponed the
wasted costs involved in the abortive appearance could be properly
awarded against him.
DISTRICT COURT BUILDINGS
1.28
The District and Intermediate Courts in Port Louis have now occupied
along with the Industrial Court a purpose-built new building but most of the
District Courts still use old buildings with extremely poor facilities for the
Magistrates, the court staff, the witnesses and the public and while the
buildings certain in many cases have quite distinctive historical character
they no longer adequately serve the needs of a modern court and we
strongly recommend that early attention be given to this problem. We
return to this matter in more detail in connection with the resources
available to the Courts.
1.29. In the meantime, we have noted a particular problem in relation to the
District Court at Curepipe where there is a very substantial shortage of
accommodation whereas because the Intermediate Court has not moved
to the New Court House at Port Louis there is excess of accommodation
in the District Court of Rose Hill. We consider that as a matter of urgency
the boundaries of the jurisdiction of these two Courts should be redrawn
so as substantially to increase the jurisdiction of the Court sitting at Rose
Hill while reducing that of the District Court sitting at Curepipe
Chapter 2
INTERMEDIATE COURT
REGIONALISATION
2.1
The Intermediate Court has recently moved to the New Court House at
Port Louis with the result that apart from Rodrigues all Intermediate Court
business is disposed of there. We consider it right that the present civil
and criminal jurisdictions of the Intermediate Court should be preserved
but we are of the view, and this position is shared by those who gave
evidence before us from the Intermediate Court that it would be more
appropriate for the Intermediate Court to have four additional regional
divisions serving the Island.
Full implementation of this policy would
require the development of suitable buildings and facilities for the
Intermediate Court but we strongly recommend that this principle should
be in mind when consideration is being given to buildings for the Court
Service outside Port Louis. The present congestion in Port Louis itself
does not make for efficient travel backwards and forwards from the other
parts of the Island for litigants who have business in the Intermediate
Court and we think it a sound principle that justice should be available as
close as possible to the area in which it is required.
ONE MAGISTRATE TO PRESIDE
2.2
At present all criminal trials in the Intermediate Court require two
Magistrates. Over recent years there have been very few occasions on
which these Magistrates have disagreed. It is also worthy of not that over
the history of the legal system of Mauritius the number of Judges required
to sit for the hearing of particular cases has reduced and we consider it
appropriate in the light of the evidence we heard to recommend that it
should no longer be necessary to require two Magistrates to sit in every
case before the Intermediate Court. One Magistrate should suffice in the
vast majority of cases but a discretion should remain with the presiding
Magistrate of the Intermediate Court to decide that in a particular case two
Magistrates should sit if it in the judgment of the presiding Magistrate the
case was of such a special character that this was necessary.
The
Commission would envisage as a case appropriate for that treatment one
in which very delicate but crucial judgments of fact were required on which
an Appeal Court might find it difficult to intervene, not having the benefit of
hearing and seeing the witnesses.
In all cases a full judgment with
reasons is given where a conviction is entered and we do not consider
that the cogency of the judgment at first instance is substantially increased
in the vast majority of cases by being signed by two Magistrates rather
than by one.
ABOLITION OF FIAT
2.3
At present, the fiat of the Director of Public Prosecutions is required for the
commencement of criminal proceedings in the Intermediate Court. Having
regard to the power of the Director to lodge a notice of discontinuance in
any case, we consider this requirement now to be an unnecessary
formality and we recommend that it be abolished.
FAMILY MATTERS
2.4
For reasons similar to those we have given in respect of the District Court
we recommend that the Intermediate Court should have jurisdiction in all
family matters including the power to make awards of alimony except the
reserved matters, with power to the Intermediate Court to decide where in
the Court, once it comes to sit in different places, a case should be heard
but also with power to remit the case either to the Supreme Court if it
involves particular difficulty, or to remit to the District Court if that seem
more appropriate.
CIVIL AND CRIMINAL LISTS
2.5
We have had evidence suggesting that difficulties arise in the Intermediate
Court as a result of criminal cases taking priority over civil with the result
that where a criminal case is continued civil cases fixed fro the days over
which it has been continued have to be postponed. We consider that it
would be advisable to have two distinct list, one for criminal cases and one
for civil cases and that the Presiding Magistrate should assign Magistrates
to deal with one or other of these lists, that they should continue dealing
with these for a reasonably substantial time to gain experience in the
subject matter of the list and to facilitate the efficient disposal of the
Court’s business.
2.6
If our recommendation is accepted with regard to family business and a
sufficient amount of family business arises in the Intermediate Court then
a third list for family work would be appropriate. We consider that having
the Intermediate Court regionalized and the Magistrates in it available for
family work with power in the District Court to send cases up to the
Intermediate Court would meet the criticism that some of this work is not
suitable for very junior Magistrates in the District court.
PROCEDURE IN THE INTERMEDIATE COURT
2.7
Apart from the procedure relating to Small Claims, and the time limits for
the lodging of complaints the comments we have made about the
procedures in the District Court are applicable to the Intermediate Court
also.
CASES RELATING TO DRUGS
2.8
It has been suggested to us that there is a necessity for a distinct Drugs
Court, particularly in view of the present delay in drugs cases. We are of
opinion that it would not be wise to set up a completely separate Drugs
Court since the present jurisdictions of the existing courts allow them to
deal with drugs but we do suggest that in the Intermediate Court it would
be right to have a separate list to which drugs cases are assigned and that
the Magistrates to deal with these cases be designated for that purpose by
the Presiding Magistrate of the Intermediate Court and again for the
purpose of familiarizing the Magistrates with the basic problems of this
drugs jurisdiction those assigned to dealing with these cases should be so
assigned for a considerable period. In this way special priority can be
assigned to drugs cases since there is obviously a tendency in these
cases for some accused persons to do what they can to contrive for delay
in the disposal of their cases and it is vital that those responsible for the
administration of the court do not allow justice to be impeded in this way.
Chapter 3
COURT OF APPEAL AND HIGH COURT
3.1
At present, the Judges of the Supreme Court exercise appeal jurisdiction
in civil, family and criminal matters in accordance with the provisions of the
Constitution but the Judges who sit on appeals are themselves Judges of
the Supreme Court. A consequence is that a Judge today may be sitting
on appeal against the judgment of a Judge who in a week’s time will be
sitting on appeal from him or her. It has been suggested to us that this
causes, in the legal profession and perhaps more generally, a feeling that
the appeal work is not sufficiently separate from the work at first instance
and that it may inhibit a Judge sitting on an appeal from being as forthright
as he or she otherwise would in criticism of the judgment appealed from
by the consideration that in some short time in the future the Judge
appealed from may be sitting in judgment on an appeal from him or her.
We have not been persuaded that this is a significant factor in the
deliberations on appeal, but we have reached the conclusion that at this
stage of the development of the judicial system of Mauritius it would be
right to divide the Supreme Court into two sections, a Court of Appeal
Section and High Court Section, in order that the Judges exercising the
appeal jurisdiction should be freed from detailed consideration of cases at
first instance so that they may concentrate on the development of the law
and have appropriate opportunity to consider the way that other
jurisdictions have developed their law to deal with problems similar to
those which arise in Mauritius. If the Judges dealing with appeals have a
full opportunity to view matters in the light of a wider perspective that
earlier precedents decided in Mauritius we believe this will enhance the
status of the Mauritian Courts as well as bring to the legal system of
Mauritius a mature and developing perspective.
3.2
We have therefore concluded that it would be right to set up a Court of
Appeal Section of the Supreme Court to which appeals from every level of
court in Mauritius, the High Court Section of the Supreme Court, the
Intermediate Court and the District Court should be taken, and we so
recommend.
This Court of Appeal should be taken, and we so
recommend. This Court of Appeal Section should be the Court to which
appeals from the Industrial Court or any tribunal in respect of which an
appeal lies should be taken. This Section would have jurisdiction to hear
all appeals from courts and tribunals in Mauritius and would be concerned
with nothing other than appeals. On the present figures we consider that
a court of five Judges would be required. Who should be the Judges of
this court?
3.3
Since the age of retirement of Judges in Mauritius has hitherto been 62
there is an unusually large number of retired Supreme Court Judges
available in Mauritius and we have considered carefully whether it would
be right that they should form, at least in part, the new Court of Appeal
which we are recommending. While these Judges have great experience
of holding high judicial office in Mauritius the fact that they have retired
has broken the continuity of their judicial activity and we have reached the
conclusion that it would not be right that the Judges of the Court of Appeal
Section be recruited from the number of those who are retired. At present,
having regard to the age limit for Judges they are not qualified to serve
except under contract and in view of the need for the Court of Appeal
Section to be perceived as completely independent it would, we believe,
be unwise to provide Judges for that new Section by the use of contractual
powers in this way. We shall consider later whether the present age limit
for the Judiciary should still apply but even if it were thought right to raise
that limit the raising of it would not lead to Judges already retired under
the existing age limit being qualified to sit now. For these reasons we
have decided to recommend that the new Court of Appeal Section should
consist of the Chief Justice, who will continue to be the Head of the
Judiciary, the President of the Supreme Court and the Court of Appeal
Section of that Court. The other Judges should be the Senior Puisne
Judge and the three next most senior Judges of the present Supreme
Court.
3.4
It has also been suggested to us that the perception of the Court of Appeal
Section as a distinct court would be enhanced if it sat in a distinct building
from other courts. This we think could be achieved at present by the Court
of Appeal Section using the older building of the present Supreme Court,
leaving the first instance functions of the present Supreme Court to be
served in the remaining accommodation. We consider that a Section of
the Supreme Court staffed by fully serving senior Judges would be most
likely to accord with the expectations of the legal profession and the public
in Mauritius.
3.5
Since the Court of Appeal Section we have recommended would become
the highest judicial level of the Republic it would be appropriate to rename
the remaining section as the High Court Section of the Supreme Court. It
should retain all the present first instance jurisdiction of the Supreme
Court including the supervisory jurisdiction analogous to that available
under the prerogative by way of judicial review. The Judges of the Section
should include all the present members of the Supreme Court, other than
the five most senior. At present, while serving as Judges of the Supreme
Court they are the Judges of the Court of Civil Appeal and the Court of the
Criminal Appeal and exercise appellate jurisdiction over Subordinate
Courts, Tribunals and other prescribed bodies or persons. As such any
one or more of them might be called upon from time to time at the
discretion of the Chief Justice to serve on an appeal, unlike the Chief
Justice himself and the Senior Puisne Judge who are expressly called to
sit on the Court of Civil Appeal and the Court of Criminal Appeal. The
other Judges individually are not nominated under the present law as
having any specific appellate function and therefore we consider that there
is no valid objection that can be offered to making this separation between
the appellate and the first instance function, which we consider it is now
wise to make, in the interest of the development of the law of Mauritius
and the reputation of its Courts. In view of the clear necessity to separate
those two functions for the greater credibility and respect for the
dispensation of justice in Mauritius, the relevant amendments to the
Constitution and the Statutes are recommended. The Mauritius Report
shall continue to report judgments of the Supreme Court, whether of the
High Court Section or the Court of Appeal Section.
3.6
The new High Court Section should have a President responsible for the
judicial administration of the Court to be called President of the High court.
We recommend that the President should be the senior Judge serving in
the High Court Section.
APPEALS TO PRIVY COUNCIL
3.7
In the light of these changes and the concern that has been expressed
that certain important issues could not be pursued to the Privy Council due
to the technicalities of the type of proceedings involved, we consider that
the distinction between appeals to the Privy Council as of right and with
leave or based on the type of proceedings involved should be abolished.
3.8
Any party aggrieved with any final decision of the Court of Appeal Section
of the Supreme Court should be entitled as of right to appeal to the
Judicial Committee.
3.9
The provisions of the Constitution debarring appeals which are merely
frivolous and vexatious and the inherent power of the Judicial Committee
not to entertain certain types of appeals, are sufficient safeguards against
any abuse of the right to appeal.
BANKRUPTCY AND COMPANY MATTERS
3.10
In the evidence given to us, special attention was devoted to the position
of the Bankruptcy Division of the Supreme Court which has jurisdiction “to
deal with all matters of bankruptcy, insolvency or winding up of
companies”. The Bankruptcy Division is vested also with the jurisdiction to
hear all actions arising under the Companies Act as under Section 2 of the
Act, the word “Court” means “the Bankruptcy Division of the Supreme
Court”.
A particular feature of the Bankruptcy Division is that its
jurisdiction is exercised by the Master and Registrar concurrently with the
Judges of the Supreme Court.
However, in practice the Master and
Registrar and the Deputy Master and Registrar deal with all cases lodged
before the Bankruptcy Division. As regards actions under the Companies
Act the picture is different. While the Companies Act entrusts all actions
arising under it to the Bankruptcy Division it has been held that the
Supreme Court in the exercise of its original jurisdiction can hear actions
relating to the internal administration of companies.
In the case Ah
Chuen & others 1993 SCJ 110 the Supreme Court said “there is no
doubt that in the normal course of things, all matters relating to the
administration and management of companies and all disputes relating
thereto should be dealt with, in the first place, in the Bankruptcy Division.
A great number of provisions in the Companies Act clearly point to this.
Unfortunately, when the legal representatives of applicants resort to the
Judge in Chambers to settle these matters, with concurrent and theoretical
statements of claim in main actions being lodged, no objection is taken by
the legal representatives of the respondents with the result that in most
cases, except those where the Judge himself takes the point ex officio,
orders are made in Chambers relating to these matters.
Obviously,
because of this, the jurisdiction of the Judge in bankruptcy becomes
inhibited as a result of the orders made in Chambers”. The fact that the
Supreme Court can hear actions under the Companies Act in the exercise
of its original jurisdiction gives the litigants and their legal advisers the
choice in practice to enter their cases either before the Supreme Court or
the Bankruptcy Division. A further difficulty arises from a defence often
resorted to by litigants and their legal advisers in bankruptcy notices. The
principle is that in cases of bankruptcy notices, where the alleged debtor
has a serious defence to a debt allegedly due, the Judge in bankruptcy
must refer the matter to be decided on the merits by the competent Court.
We have come to the conclusion, in the light of the evidence submitted to
us, that this distinction between the Bankruptcy Division and the Supreme
Court in its original jurisdiction is conducive to technical argument and
confusion rather than to a smooth and efficient operation of the law in this
vitally important area.
We consider that the demands of a growing
economy and a need to respond to the complexities and trends of
sophistication of a fast developing off-shore sector require that the
bankruptcy work should be absorbed into the ordinary jurisdiction of the
Supreme Court and that the Supreme Court should have jurisdiction to
deal with commercial matters howsoever arising, including adjudication on
commercial debts so that, for example, if on a bankruptcy notice being
served a serious defence was raised that the debt was not due the court
could immediately proceed to determine that matter with expedition
without the necessity of referring it to a different court or part of the Court.
3.11
We therefore strongly recommend that no distinction should be made
between the bankruptcy division and the rest of the Supreme Court and
that references to the Court in the Companies Act should be to the
Supreme Court.
JUDICIAL REVIEW
3.12
The evidence given to us also requires special attention to the position of
judicial review applications presently made to the Supreme Court and
under our proposal these will be made to the High Court Section. The
Court in Mauritius has drawn its inspiration in developing the law on this
topic from Order 53 of the Rules of the Supreme Court of England and
Wales and the judgments made thereunder. This seems to us entirely
appropriate and we recommend that the development of this area of law
by the Courts in Mauritius should be allowed to continue untrammeled by
detailed statutory provisions.
We have heard suggestions that the
procedure at the initial stage has become rather elaborate and we
recommend that the application should be made in writing with supporting
affidavits and such other documentation, if any, as the applicant considers
appropriate. If on the papers presented, the Judge is satisfied that leave
to move should be granted he may do so without a hearing. Generally if a
hearing is required it should be ex parte and the matter decided on that
basis.
If, exceptionally, the Judge considers it necessary to hear the
respondent in the application, that hearing should take place only on the
affidavits and other documentation, if any, lodged by the applicant. The
appropriate place for any affidavit or other documents in answer from the
respondent is if and when the application for leave to move is granted.
DIVISIONS OF THE HIGH COURT
3.13
We have had considerable representations about the delays occurring in a
number of areas but particularly in the case of road traffic accidents and
again the suggestion is made that a separate court should be set up to
deal with these. In our opinion the business of the new High Court is likely
to be expedited if the Court is constituted in a number of divisions.
Generally speaking, allocation to a particular division should apply for a
sufficiently long period of time to give the Judge an opportunity of
developing special expertise in judging cases in that division.
On the
other hand, special allocation of a Judge of one division to the work of
another should occur where this is desirable in the interests of justice; for
example, if a criminal trial involves the technicalities of company law or
bankruptcy law it would be appropriate that the Judge presiding at the
criminal trial should be one who has experience in these matters and
therefore likely to be one who normally is working or has worked in the
commercial division. This system should be used in such a way as to
balance a degree of expertise with the need for a Judge’s general talents
to remain available and therefore after a reasonable period in one division
to move to work in another.
3.14
We have considered the best way of assigning cases at High Court level
while ensuring the appropriate degree of specialization, and have reached
the conclusion that the High Court should be organized into five divisions.
3.15
Matters relating to the interpretation of the Constitution or judicial review,
relating to supervision of lower courts or tribunals and generally everything
of an administrative character should be allotted to the constitutional and
administrative law division.
3.16. All work presently heard in the bankruptcy division, all application under
the Companies Act or any disputes relating to bills of exchange, bills of
lading, disputes between traders, matters connected with the off-shore
business or arising out of arbitration or relating to patent or trademark or
passing off or, more generally, anything that is of a commercial nature
should be heard in the commercial division. Such a move to constitute a
commercial division of the High Court would, in our opinion, also meet the
difficulties expressed to us by the banking sector in Mauritius of the need
for a court with special expertise to deal with banking transactions. While
we do not believe it right to set up a separate court to deal with particular
aspects of banking, we do consider that the commercial division of the
High Court should have such a general commercial jurisdiction with a
degree of continuity in the Judges serving in that division to provide a
greater level of expertise than is felt to be available at present.
3.17. All civil matters apart from those allotted to the commercial division and
the constitutional and administrative law division should be allocated to the
civil division.
3.18
All criminal matters presently within the jurisdiction of the Supreme Court
including in particular the Assize Court and those cases dealing with drugs
which are presently tried by a High Court Judge should be allocated to the
Criminal division.
3.19. All family cases that require to be determined at the level of the High Court
should be allocated to the Family division.
3.20. We strongly emphasize that it is an essential feature of our
recommendation that the allocation of a case to a particular division
should be a matter for the court administration to determine and that there
should be no question wherever of a case being dealt with in one division
having to be restarted before another division of the Court. The allocation
should proceed on the basis of the principal subject matter of the action as
presented.
This should determine the division to which the case is
assigned and in that division it should remain.
3.21
We deal later with the manner in which the number of Judges who are
members of the High Court Section should be determined. The number of
Judges required in each division from time to time will be a matter for
determination by the President of the High Court from among the
Supreme Court Judges who are members of the High Court Section.
3.22. At present we recommend that there should be two Judges in each
Division, except the criminal division where one would suffice. The Senior
Judge in each division should be responsible for the judicial administration
of that Division.
We suggest that the Master and Deputy Master be
considered for appointment as Judges of the Supreme Court and that
three further Judges be appointed making nine Judges in all in the High
Court Section. There are at present nine Judges in the Supreme Court.
We recommend that for the immediate future there be five in the Court of
Appeal Section and nine in the High Court Section making fourteen in all.
The arrangements we recommend later will provide for the required
complement of the Supreme Court from time to tome in the more distant
future.
LISTS IN DIVISIONS
3.23
Within each division it may be appropriate for distinct lists to be drawn up
so that particular attention can be given to cases so listed. For example,
we consider the present delays in road traffic cases to be unjustified and
we recommend that within the general civil division a list should be set up
to which a Judge is assigned to deal with and dispose of as rapidly as
possible road traffic cases which would normally come to that division.
The list should be arranged so that whenever one case is completed the
next can be called on and in this way we believe it will be possible for
several cases to be disposed of in one day, unless some special
complexity exists in a case for which special arrangements will be
required.
THE MASTER’S COURT
3.24. The Master of the Supreme Court presently conducts a weekly court to
hear applications for division in kind of properties of co-heirs and co-
owners and conducts judicial sales under the Sale of Immoveable
Property Act. In addition renunciation to succession rights can be and are
also made before the Master. It has been recommended to us and we
agree that such deeds of renunciation should be transcribed with the
Conservator of Mortgages and that the necessary amendments should be
brought to Section 3 of the Transcription and Mortgage Act. Problems
have been identified to us in relation to other aspects of the Master’s
Court. First, as regards applications for divisor in kind two main areas of
concern have been identified.
3.25
Much judicial time is taken to follow a case of division in kind from the
entry of the petition up to the confirmation of the appraiser’s report. The
time lapse between the entry of the petition and the confirmation order is
in most cases well over a year. Indeed there are outstanding applications
before the Court dating back as long ago as 1990. During all that time the
cases are called a number of times in Court only to be postponed
because, for a number of reasons, the appraiser’s report is not ready or
there are errors in the appraiser’s report. It was suggested to us that to
save judicial time petitions for divisions in kind should be lodged in Court
only when the appraiser’s report together with all the necessary approvals
from the relevant administrative authorities have been obtained. While we
consider the present situation for from satisfactory we doubt whether it
would be improved by the proposal to which we have referred. Such
pressure as the Master can put upon the process in order to secure
progress would be lost if the case was not in Court. On the other hand
were consider that more general intervention by the Master might help to
speed up the approvals and, although it is somewhat beyond the
boundary of our remit, we consider that the process of approval might be
considerably speeded if once an application for approval is lodged with the
relevant administrative authority a short time, say three months, is allowed
for the authority’s consideration and unless the authority decides not to
approve within that time deemed approval will result and we recommend
that this provision be enacted. So far as appraisers’ reports being timeous
are concerned we consider that the Master should have authority to
disqualify from giving a report an appraiser who on previous occasions
has taken an undue length of time to furnish his report.
3.26. The second difficulty is that for registration purposes the original court
records are now sent to the Registrar General thus causing practical
difficulties at times to officers of the court.
Difficulties arise when
documents in the original court records need to be referred to, and also
when documents are found missing after the records are returned to the
Court by the Registrar General. We recommend that registration may be
made on certified copies of Order of the Court and recommend also that
the necessary amendments be brought to Section 14.1 of the Registration
Duty Act to enable this to happen.
3.27. As regards judicial sales the main problem area is the time taken by the
Conservator of Mortgages to issue the Certificate of Inscriptions burdening
the property sold. It takes between two to five years for such certificates
to be issued. We consider this delay by a public officer to be altogether
unreasonable and it has a very damaging effect on the value of
immoveable property in relation to the obtaining of credit.
The best
solution would be for the Conservator of Mortgages; records to be up to
date and we recommend strongly that this be pursued with all vigour but in
the meantime, we recommend that notaries should be permitted by law to
issue Certificates of Inscriptions burdening properties to be sold, that the
Court should be entitled to proceed on such a Certificate and that the
necessary amendment be brought to Section 1.69 of the Sale of
Immoveable Property Act. Where a notary has given such a certificate
and the Court is minded to grant the Order for Sale it should have a
discretion to require the creditor receiving the benefit of the sale to
undertake to recompense any creditor not certified as inscribed who turns
out on some later date within perhaps a given period of say, five years, to
be inscribed.
QUALIFICAITON OF MASTER
3.28
We should mention at this stage that in our opinion, much of the work of
The Master’s Court falls within matters with which attorneys would
normally deal and we therefore consider it right and recommend that the
position of Master of the Supreme Court should be open to attorneys as
well as to barristers if our recommendation with regard to the bankruptcy
work is accepted and it passes to be dealt with by Judges of the
commercial division of the Supreme Court.
Chapter 4
CIVIL MATTERS
SERVICE OF PROCESS
4.1
We have a considerable body of evidence that delay in the courts of
Mauritius is caused to a substantial extent by the requirement of service of
process by ushers and that similar problems are encountered for example
by the National Pension Fund Officers in connection with responsibility of
employers for payment to that office of their own and employees’
contribution and other monies which the officers of that department are
required to collect.
In the light of all the evidence available to us we
recommend that where a summons or other document initiating a court
procedure requires to be served, this may be done by registered post
using the post office service for advice of delivery. The procedure can
readily be adapted to the requirements of the National Pension Fund
Office but we will describe what we have in mind by reference to a court
summons. The summons should be posted in an envelope on which there
is a notice that if the envelope is undelivered it should be returned to the
Clerk of the Court in respect of which the summons has been issued. The
person effecting service should then prepare a certificate that he served
the document by registered post in an envelope addressed and quote the
name and address on the envelope on a stated date, at a stated post
office and received a receipt therefore which is appended to the certificate
and that he received advice of delivery which is also appended to his
certificate if this has been the case.
4.2
Where a document is so served by registered post and a certificate by the
person authorized to effect service by registered post in the terms we
have indicated has been lodged in court then service shall be presumed to
have been effected on the person required to be served unless and until
he shows that due to no fault on his part he has not received the
document in question. We advise that this be made a general provision
for all types of service required by the Court and that it be used unless the
Court for a special reason considers another mode of service to be
necessary, or when the envelope sent by registered post has been
returned as undelivered.
In these cases service by an usher will be
required.
4.3
We consider and recommend that a similar provision applying to the
documents required to be served by a National Pension Fund Officer to
found the necessary criminal offences should provide a prima facie case
that the document was properly served on the person mentioned in the
certificate and in this case the envelope should require that, if undelivered
it should be returned to the National Pension Fund Officer making the
service and his certificate should add, if it be the fact, that the envelope
containing the document was not returned to him but was advised to have
been delivered in accordance with the receipt appended to this certificate..
4.4
There may well be other examples in existing legislation where difficulties
similar to that encountered by the National Pension Fund Officers arise
and if so we recommend similar provisions be incorporated in that
legislation also.
PLAINT WITH SUMMONS
4.5
We received evidence suggesting that the variety of ways in which
litigation may be commenced, particularly in the Supreme Court, is a
cause of difficulty which in our view is quite unnecessary and we
recommend that all actions in the Supreme Court should be begun by way
of plaint with summons but that in a case of urgency as for example in an
application for judicial review it should remain possible to apply to the
court by way of motion. The plaint with summons should be capable of
containing any request for relief which was previously made by way of
motion. Generally speaking, we consider that the procedure which has
been used in the District Court for civil matter and in the Intermediate
Court where again the same rules are applied should, generally speaking,
be the basis of procedure in the High Court as well. We consider that it
would be appropriate to introduce third party procedure and interpleaded
procedure. We append a set of rules which we have in mind could form
the basis for further work on the procedure of the High Court and we
recommend that it be put before the new Rules Committee we are
recommending should be set up. Consequential changes will be required
in other rules, for example the Bankruptcy Rules and therefore a good
deal of further and more detailed work is required before the new Rules
can be enacted. We consider that this work should be undertaken with
the utmost urgency.
4.6.
Where a plaint with summons is served the summons should contain an
intimation that unless the person served with the summons appears in
Court, either personally or through a representative on the return date
intimated in summons and then intimates an intention to defend, the Court
may pronounce an order against him in the terms sought in the plaint with
summons in the absence of the party who has been so served.
NO NEED TO MAKE OUT CASE
4.7
We consider that a requirement to make out the plaintiff’s case where the
action is undefended serves no useful purpose in modern conditions
unless there is a public interest in the Court’s not being allowed to make
an order of the kind proposed merely by consent of parties. An order of
divorce and some related orders of status and of bankruptcy and those
relating to minors, are of this character, but generally speaking there is no
such public interest and the Court is enforcing in effect rights which the
parties have agreed or have as matter of law and which any intervention
by the court, the only purpose of the Court’s intervention being to bring
into action the enforcement powers of the Court in assistance of the
plaintiff. Apart from the special orders of the kind mentioned we
recommend that there should no longer be a requirement on a plaintiff in
an action which is undefended to make out his case.
ENFORCEMENT
4.8
We have received evidence that after judgment from the Court is obtained
the process of enforcing that judgment is by way of further considerable
court process which takes up court time and causes considerable delay.
We recommend that where final judgment has been obtained in may court
and the time for lodging an appeal against that judgment has expired any
party to the proceedings should be able to obtain by application to the
Clerk of Court, forthwith a certified copy of the order of the Court and this
certified copy should be a warrant for all lawful execution of the judgment
without any need to register the judgment. This can then be used to
initiate any form of execution which is lawful on the particular judgment in
question. We consider that the protections involved in the process of
execution will bring forward any difficulties that may arise from the
defendant not having had appropriate opportunity to defend if indeed,
through some mischance, that has taken place. If at that stage a
defendant feels that because judgment has passed against him in his
absence an injustice of some kind has been done, either because he did
not receive service of the plaint with summons or because for some good
reason he was not in a position to intimate an intention to defend at that
stage or for similar reason, it is unjust that the execution should proceed,
he may apply to the Court for suspension of the process of execution and
on considering his submission the Court would have power to set aside
the undefended judgment or to do whatever the Court thought just in the
circumstances upon such conditions as to costs or otherwise as the Court
should deem appropriate. We consider that if these recommendations are
put in place it will save a great deal of time presently wasted in seeking
redress from the Court.
EVIDENCE FROM ABROAD
4.9
We have
received representations that
considerable
difficulty is
experienced with litigation in Mauritius due to the fact that while Mauritius
allows foreign courts to issue “Commissions Rogatoires” for obtaining
evidence for foreign courts from persons in Mauritius, no corresponding
power exists in the Courts of Mauritius to obtain evidence abroad. We
consider that there is also scope for extending considerably the statutory
provisions that allow certificates from public officials to be received in
evidence when not contradicted.
4.10
We recommend that the Courts in Mauritius should have power to issue
commissions to persons appointed by the Court to take evidence relevant
to cases before the Court from persons abroad which when the
commission is executed and a report of the evidence is returned, will be
available to the parties to the case and the evidence contained in it
available as evidence before the Court. The precise procedure for this
purpose will be that the Supreme Court will issue such a request and pass
it through the appropriate channels if the witness is in a country with which
Mauritius has arrangements for that to be done. If an inferior court wishes
such evidence the case will have to be remitted to the Supreme Court
purely for the purpose of obtaining an order from the Supreme court
granting the commission and passing it through the appropriate channels
to obtain the evidence from the country concerned.
WRITTEN STATEMENTS WITHOUT ORAL EVIDENCE
4.11
To deal with the second matter mentioned above we recommend that any
written statement relevant to a case pending before any Court and lodged
by a party should be taken as evidence of the facts or opinions stated
therein unless any other party duly challenges it and requires the
attendance of witnesses to depone to the facts or opinions stated. We
make this as a general recommendation but we apply it specifically to
statements made by accused persons and also to statements relating to
the medical examination of injured persons which may be relevant in
proceedings.
LIMITATION OF ACITONS
4.12
We have received representations that the present rule of limitation of
actions against public officers is having a detrimental effect on the
perception of fairness in the judicial process. The short period of limitation
available to protect public officers as distinct from other persons against
whom litigation can be taken puts the State and other authorities served
by such officers in a privileged position in comparison with other litigants.
We consider that in present circumstances this privileged position is not
justified. We therefore recommend (first) that the special position of public
officers should be abolished but what the correct limitation period should
be for different types of action is beyond the scope of the remit with which
we are charged and therefore we recommend (second) that consideration
be given to this problem by the Law Reform Commission who would no
doubt wish to proceed by way of public consultation
PLEADING IN ALTERNATIVE
4.13
A further procedural matter which has been drawn to our attention is the
extent to which pleading in the alternative, particularly in tort and contract
is at present restricted. For example, if one is suing a surveyor in private
practice for a bad valuation of a piece of real property his obligations arise
under the law of tort and of contract. It seems to us and we recommend
that the Court should not be restricted in taking what seems to it to be an
appropriate view in such matters by any technical rules of pleading.
Where such restrictions presently exist they should be abolished.
PRE-TRIAL MANAGEMENT
4.14
We turn now to consider how cases might be speeded up by pre-trial
management. The precise form that this takes will vary from one type of
case to another. We consider that for example, in relation to road traffic
cases a very definite timetable can be drawn up which should be adhered
to generally without the intervention of the Court until the case is ready for
trial. In more complicated types of case the intervention of a Judge or
Master to oversee the progress of preparation may be necessary and the
rules should provide for this. Once a case is ready for trial we consider
that the parties or their representatives should have to submit to the Court
Officer a form stating the length of time they expect to require and the
witnesses they expect to lead, with their availability as well as the
availability of counsel. These facts should be taken into account by the
Judge or Master who determines the date of trial and the amount of time
to be allotted to it and thereafter no adjournment should be permitted but
in the most exceptional circumstances. We believe that a strong attitude
of the Court against adjournments of the date of trial is an important factor
in securing reasonably speedy justice. In particular we do not agree that
adjournment
should
be
granted
readily
simply
because
the
representatives of the parties so agree. Once the case is in Court the
Court has a responsibility to see that it is efficiently conducted at a
reasonable pace and it is an important part of the discharge of that
responsibility to see that once a date is fixed for the trial it should not
readily be departed from. It is certainly fair that in fixing the original date,
as we have said, the availability of the legal representatives that the
clients have chosen should be taken fully into account but once the date is
fixed we consider that the legal representatives have a responsibility to
conduct their practices in such a way as to give effect to the decision of
the Court as to when the trial is to take place.
We know that
circumstances may emerge which were quite unforeseen at the time the
date was fixed but unless these circumstances are very special we would
expect the need for justice to be timeously dispensed to take precedence
over the convenience of the lawyers. We also recommend strongly, that
when a trial is begun it should continue from day to day until completed
and that legal representatives take this into account when making their
arrangements. In this connection it is vitally important that the estimates
of length of time required are carefully considered and as accurate as
possible.
JUDGMENT
4..15 When the trial has been completed, unless judgment has been given
immediately a date should be intimated at which judgment will be given
which should be within a reasonably short time of the completion of the
trial. Where a hearing has taken place on an urgent matter it is vital that
judgment be given immediately or if not, that the date for judgment be
intimated for a reasonably short time thereafter, such as a week. A delay
of months on an urgent matter is unacceptable.
ABOLITION OF INSCRIPTION FALSI
4.16
A particular problem has been raised in connection with the special
procedure required if one wishes to invalidate an authentic deed referred
to as “Inscriptio Falsi”.
In our opinion, in present circumstances, no
special procedure should be required designed to deal with a very
particular type of case. We think it sufficient that the rules of evidence
relating to authentic deeds should continue to apply and that the case in
which a deed is challenged should be dealt with in exactly the same way
so far as procedure is concerned as any other type of civil case. No doubt
the Court would be slow to disturb an authentic deed unless cogent
evidence suggesting that was just were adduced before it.
This is
precisely the reason for the special procedure of Inscriptio Falsi but we
consider that under present circumstances such special procedure is not
necessary to secure the result, the more general approach which we have
described being sufficient.
RESPONDENT’S SKELETON ARGUMENT
4.17
It has also been pointed out to us that there is a requirement on the
appellant to produce a skeleton argument for the appeal which he has
initiated. It has been suggested that a corresponding requirement should
be made on a respondent who wishes to maintain the judgment appealed
from and we agree that this is a well founded request and that the
respondent’s skeleton argument should be available say four weeks after
the skeleton argument for the appellant, subject to the Court adjusting this
time in the particular circumstances of the appeal.
RULES COMMITTEE
4.18
In this Chapter so far, we have dealt with a variety of matters arising under
the broad heading of civil procedure although a number of them carry
implications which go beyond what would be regarded strictly as
procedure and involve considerations on the laws of evidence and other
matters. However, we consider that the essence of a successful system
of civil litigation is adaptability to changed circumstances and the ability to
correct any defect which the experience of the system may demonstrate to
exist and therefore we recommend the setting up of a permanent
arrangement for making and altering the Rules of Court. We consider that
a Committee consisting of two Judges nominated by the Chief Justice,
one from the Court of Appeal Section and one from the High Court Section
of the Supreme Court, together with a Magistrate from the Intermediate
Court nominated by the Presiding Magistrate of the Intermediate Court,
and Barrister nominated by the Bar Council and an Attorney nominated
by the Law Society with drafting assistance provided by Parliamentary
Counsel’s office should have the power and responsibility of making Rules
of court which would guide the procedure in all the Courts of the Republic
with power to make different rules for different courts. This Committee
should be set up under statutory authority with power to modify existing
provisions with regard to practice and procedure as well as to enact new
rules. It would be essential in our view that this Rules Committee should
operate by full consultation with the professions and all those who have an
interest in litigation, such as bankers, insurers, commercial enterprises,
and consumer organizations. We recommend that it should be required in
the constitution of the Rules Committee that they carry out before
proposing a rule such consultation with those affected as is required to
give them a clear view on the desirability of the rule. We envisage that the
appointments would be perhaps for two years at a time and staggered so
as to give a degree of continuity to the Committee. We think it would be
right also that the Committee should have a responsibility for preparing
leaflets for the use of the general public describing the procedures and
changes in procedures as these will affect them.
LEAFLETS
4.19
We consider it highly desirable that, particularly for cases in which
members of the public may be involved without the benefit of legal advice
and assistance, clearly written leaflets should be available in French and
English and any other appropriate language describing the procedure in
sufficient detail to enable an ordinary member of the public, unversed in
legal matters, to follow what is required. We would regard it as urgent that
this be done in relation to the procedures of the courts in family matters.
By way of illustration, we append some leaflets describing procedures
which have been issued in England and Wales and in France and found
helpful to litigants.
4.20
The Rules Committee will replace the functions presently conferred on the
Judges of the Supreme Court to make rules of practice and procedure.
REGISTRATION
4.21
A further matter has been the occasion of repeated complaints to us. That
is the requirement that in may contexts civil, judicial, and extra judicial
acts, pleadings and documents that are to be produced in Court require to
be registered and duty paid upon them before that can happen and this is
also related to a problem of times at which documents can be produced
for registration unnecessary waiting becomes thereby inevitable.
4.22
We recognize fully that the State has an entitlement to substantial duty on
documents of a particular character in respect of which such liability is
provided by statue. We see no justification in present circumstances for
duty being payable on any document solely on the ground that it is to be
used in court proceedings. The idea of registration for this purpose is
rooted quite deeply in the history of the civil law but in our opinion it has no
modern justification. We understand that sometimes legal advisers seek
to negotiate to avoid the production of documents and thus avoid the
registration duty in circumstances where on the whole it would be better if
the Court had sight of the actual documents. We recommend strongly that
the requirement of registration for the purpose of allowing a document to
be used in court should be abolished and that section 38 (d) of the
Registration Duty Act should be repealed. We consider that this simple
abolition will have a very beneficial effect on the cost and progress of civil
actions in Mauritius.
4.23
We are mindful that the public revenue would not wish to be unduly
prejudiced by our proposals and we suggest that if this consideration
requires a substitute for the removal or registration which we have
recommended than it should be done by way of a flat fee on all civil
actions being lodged in Court with different rates for the different Courts
progressing from comparatively low rates in the District Courts to a
substantially higher rate in the Supreme Court.
AFFIDAVITS
4.24
A second general cause of complaint is the delay occasioned by requiring
those who wish to sear affidavits for use in court to attend at particular
times before the Master, the Deputy Master, the Chief Registrar and the
Secretary to the Chief Justice. We consider that it would be appropriate to
grant to all Attorneys of ten years’ standing and above the power to
administer oaths in connection with the swearing of affidavits and that the
procedure followed at present should apply also to Attorneys doing so. In
order that the public might be clear who would be entitled to act in this
connection we suggest that Attorneys who wish to provide this service and
are qualified to do so by their standing should be entitled to refer to
themselves as Commissioners for Oaths.
4.25
The District Magistrates already have the power to administer oaths in
connection with the swearing of affidavits and we understand that the
reason for this power not being used is the difficulty or ascertaining when
the District Magistrates may be available for this purpose. We suggest
that it would be useful for the District Courts to earmark some periods,
perhaps three times a week, during which the District Magistrate would be
available for a reasonably short period for this purpose.
EXECUTION OF JUDGMENTS
4.26
We have referred earlier to the need for efficient execution of judgments.
The procedure for execution depends upon the nature of the property that
is to be the subject of exception and we consider that provided the creditor
uses the correct procedure applicable to the type of properly in question
there should be no further restriction on the order on which different types
of property may be subject to execution, this being a matter for the creditor
to determine but that where immoveable property is concerned service of
notice of intended execution in respect of the property should be served
six weeks before the sale proceeds an din the case of all other property
service should be required with three weeks’ notice prior to sale. This
seems to us to afford reasonable protection to the debtor in view of the
simplification we have proposed of the procedure preliminary to execution.
REPRESENTAITON BY MINISTRY OF LABOUR
4.27
A rather special point has been raised in connection with the
representation of workers by the Ministry of Labour. Where the Ministry of
Labour represent a worker in accordance with statute at first instance we
recommend that if the opponent appeals the Ministry of Labour should
have a locus to continue to represent the worker if that is Judged to be
right. It may be that in some instances the Ministry would consider a
judgment appealed from to be wrong and unsustainable so we would
simply leave it as a matter of discretion as to whether or not the
representation should be continued but we do have in mind that it is wrong
to exclude the Ministry from representation if the person they have
represented has been successful in obtaining judgment and that judgment
is being appealed from. It seems to us unjust that the appeal should
deprive the respondent worker of the assistance by way of representation
from the Ministry.
RATIONALISATION OF TRIBUNALS
4.28
It has also been suggested to us that there are too many tribunals and
commissions having jurisdiction over industrial matters and that all should
be fused into the Industrial Court and the functions of these other tribunals
and commissions given to the Industrial Court. We understand that with
the help of the International Labour Organisation a review is being
undertaken of the arrangements for dealing with industrial disputes in
Mauritius and while we would recommend as a general principle against
the multiplication of tribunals and commissions in relation to a particular
subject matter we feel it would be inappropriate for this Commission to
look into this particular suggestion in more detail having regard to the
other enquiry presently proceeding.
DUTIES OF MASTER
4.29
So far we have considered the appointment of Judges and members of
the State Law Office and made a passing recommendation that an
Attorney could well be a suitable appointment for the office of Master in
the High Court in so far as he has to deal with the business of the Master’s
Court.
4.30
There remains the question whether in addition to the Master in this sense
there should be a person whose responsibility would be similar to that in
France of the “juge de la mise en Etat”. At the present moment the Chief
Justice has to sit to deal with allocation of cases and to consider whether
appropriate steps of procedure have been taken, in a way which we
conclude is completely wasteful of the time of the highest Judge in the
Republic. If it were appropriate to have a Master in this sense he should
have power to help parties to settle and to pronounce judgment in
accordance with agreements to settle, with jurisdiction to curb delays and
with power to fix the dates of trials having regard to the various
considerations we mentioned earlier in a way that would bind the parties
with the authority of the Court unless some very special circumstances
subsequently ensued.
4.31
It would also be possible for the Master to deal with all interlocutory work
subject to the Master being entitled to refer it for the hearing of a Judge in
Chambers or in open court according to the Master’s judgment of what the
circumstances of the case require. The talent for dealing with matters of
this kind is to some extent distinguishable form the judicial talent of
deciding cases. This is more in the nature of a management task and
would in our judgment be suitable for an experienced Attorney.
We
conclude it would be wise to have this facility and we therefore
recommend that the post of master should carry, in addition to the
responsibility for the Master’s Court, that of management as outlined and
that the appointment should be open to both Barristers and Attorneys. We
recommend that the Judicial and Legal Service Commission making the
appointment would have regard particularly to the applicant’s talent for
management of Court business as well as for soundness of judgment in
deciding cases.
Such an arrangement would we believe relieve the
Senior Judges of the Court of a great deal of management work and
enable them to concentrate on the task of deciding cases brought before
them.
CHAMBERS WORK
4.32
With regard to chambers work we had considered proposing that it should
be dealt with by a Judge or Judges sitting to do nothing else but we have
been persuaded by the evidence of he Senior Puisne Judge that this
might lead to delay rather than speed matters up as we had intended. It is
particularly important however in our opinion that the system we propose
should prevent parties being able to choose the Judge in Chambers
before whom their case would normally be heard in Chambers in the
Division to which it is allocated. Since Chambers work is supposed to be
done in private, it is important that the arrangements should prevent public
access to the room in which the Judge sits for the purpose of hearing in
Chambers.
DIVORCE PROCEDURE
4.33
The Senior Puisne Judge mentioned to us the desirability of the
provisional decree of divorce becoming permanent after the expiry of the
statutory time without the necessity of further court time being occupied
with that stage. We consider this to be a desirable improvement. This
leads us to suggest that consideration be given to altering the law so that
the decree is permanent on being pronounced and the provisional decree
is abolished, but the conditions mentioned in Section 11 of the Divorce
and Judicial Separation Act must be kept in view.
POWER TO GRANT RELIEF
4.34
We understand that from time to time in non criminal matters very
technical difficulties can arise as result of the failure of a party to conform
with the provisions of the relevant rules, particularly rules specifying a time
within which a particular step must be taken. We recommend that the
Court should have power to relieve a party from the consequences of his
failure to conform with any provision of a rule of court provided that the
failure was not deliberate and that in the opinion of the Court it would be in
the interests of justice to grant relief in such manner and on such terms as
to costs or otherwise that the Court might deem just.
Chapter 5
THE APPOINTMENT AND TERMS OF SERVICE OF JUDGES,
MAGISTRATES AND STATE LAW OFFICERS
5.1
We consider it of supreme importance that the Judges and Magistrates of
Mauritius whom we refer to collectively as the Judiciary should be of the
highest quality and carrying the confidence of the whole community in
Mauritius. This is necessary in the interest of the administration of justice
in Mauritius itself and is an important aspect of the attraction the Republic
presents to business people from overseas and other visitors as well as to
the use of Mauritius as a base for the resolution of disputes and the
operation of financial and other off-shore services.
5.2
At present the Chief Justice in terms of the Constitution is appointed by
the President after consultation with the Prime Minister; the Senior Puisne
Judge is appointed by the President, acting in accordance with the advice
of the Chief Justice. Since the Senior Puisne Judge is the second most
senior Judge in Mauritius and is in practice the deputy to the Chief Justice,
we recommend that be appointed in the same manner as the Chief
Justice. Since the Chief Justice has an important relationship to all the
people of Mauritius and he must be completely independent of the
Government, we recommend that both he and the Senior Puisne Judge
should be appointed by the President acting in his own deliberate
judgment after such consultation as he thinks fit. We consider that all the
other Judges should continue to be appointed by the President acting in
accordance with the advice of the Judicial and Legal Service Commission
and that the Magistrates should continue to be appointed by the
Commission.
5.3
A number of criticism have been offered to us of the present operation of
the Judicial and Legal Service Commission under which appointments are
presently made. The most general of these is that the methods of
selection for appointment used by the Commission are long outdated and
that modern methods of expertise in the Commission would have a greatly
beneficial effect in securing the best people for the vital and important
positions to which the Commission make appointments as well as
providing evidence that the system is fair to those competing for these
appointments.
It has also been said that the methods used and the
criteria employed by the Commission are not clear and our attention has
been drawn to the contrast between the regulations under which the
Public Service Commission operates and those under which the Judicial
and Legal Service Commission operates. In particular, questions have
been raised about the use of Ancienneté and Seniority or either of them in
making appointments. We understand the former to relate to the time for
which a person has been in the service of the State whether as a State
Law Officer or as a Magistrate or Judge whereas seniority applies to the
time for which a person has been in his or her present appointment. It is
also said that the present structure of the Commission does not regularly
enable it to take account of the work that State Law Officers do in an
advisory capacity or in a drafting capacity and although members of the
Commission may know something of the way in which candidate for
promotion exercise the office of a Magistrate particularly by reading
judgments that come before them, the other aspects of their career are not
readily apparent to the Commission in the absence of anyone from the
State Law Office on the Commission. There has also been criticism that
the Chairman of the Public Service Commission is a member of the
Judicial and Legal Service Commission and this has been criticized as
involving the executive in the appointment of the Judiciary.
5.4
Having examined their complaints, it does not appear to us essential that
only members of the Judiciary should make appointments to the Judiciary
and indeed in a country the size of Mauritius, having regard to the interest
which the general public have in the quality of the Judiciary it might be
inappropriate that the making of judicial appointments should be the
responsibility of members of the Judiciary only.
REPORTS BY SUPERIORS IN STATE LAW OFFICE
5.5
We understand that in the Civil Service in Mauritius there is a system of
confidential reports and these reports signed by the line manager and his
superior are the basis of assessment for promotion. We consider this to
be a useful method of fair assessment of candidates. The line manager
will have intimate knowledge of the work of his subordinates and if he
makes assessments of those whom he manages which are not borne out
by their later work, this will tell against him for promotion in the service.
The fact that the line manager’s superior also signs is a safeguard making
it likely that the assessments are as fair as the subjective judgment which
is called for can attain. There is no corresponding system in the State
Law Office and we do think it would be desirable that a system of
appraisal in accordance with modern methods be established in the State
Law Office as soon as possible.
Having such assessments available
would we consider be of great value to the Head of the State Law Office in
allotting people within his responsibility.
MEMBERSHIP OF JUDICIAL AND LEGAL SERVICE COMMISSION
5.6
If this is done as we recommend we believe it would be of assistance to
the operation of the Judicial and Legal Service Commission that it should
include as a member the Head of the State Law Office so that the
Commission would have within its membership a person able to give a full
background on the work standards and efficiency of members of the State
Law Office not only in public presentations as Magistrates or Advocates
but also in relation to their advisory and drafting work. It is true that at
present the Commission may consult the Head of the State Law Office if
they wish and usually will do so through the Chief Justice but having
regard to the responsibility of the Head of the Office for those who work
under him we consider it right that he should have a voice in their
appointed and also in their promotion either within or outside the office.
5.7
We think it also desirable that one member of the private legal profession
should be appointed to the Commission.
The private profession deal
extensively with members of the State Law Office and also encounter in
the course of their work the Magistrates and Judges and therefore if the
broadest view is to be obtained of the qualities of the individuals available
for appointment by the Judicial and Legal Service Commission we think it
right that a member of the private legal profession should be a member of
the Commission. We recommend that a barrister of at least fifteen years
standing designated by the Bar Council should be appointed to the
Commission.
5.8
The evidence shows us that very considerable changes have been made
in methods of appointment in the private sector in recent years and it is
important that the Judicial and Legal Service Commission should have an
input from these changes and therefore we consider that a person from
the private sector in Mauritius with knowledge of modern methods of
recruitment and appointment should be a member of the Commission.
We recommend that this appointment be made by the President in his
own deliberate judgment after such consultation with the private sector as
he thinks necessary.
each be for three years.
We recommend that these appointments should
5.9.
We have considered carefully whether the Judicial and Legal Service
Commission should be separate with two distinct Commissions one for the
judicial and the other for the legal service. Under present circumstances
in Mauritius it appears to us highly desirable that Senior Officers of the
State Law Office should be available for appointment to the Judiciary as
this is the most likely source of experience in international matters, and in
commercial as well as administrative law for members of the Judiciary.
We also consider that it underlines the independence of the legal advice
given by the State Law Office that the officers there are appointed by a
Commission presided over by the Chief Justice and including one or more
senior members of the Judiciary. We believe that the importance of high
quality independent advice to government cannot be over estimated. In
connection for example, with international negotiations as well as with
numerous regulatory contractual and administrative functions which the
Government requires to undertake it is necessary that legal advice
available to them on a regular basis should be of the highest quality.
Having regard to the size of Mauritius and the nature of its institutions and
their history we consider that this is best achieved by the maintenance of
the Judicial and Legal Service Commission subject to the other reforms
which we have suggested.
5.10
Taking these recommendations together we recommend that the Judicial
and Legal Service Commission be continued and that it shall consist of the
Chief Justice who shall be chairman and the following members –
(a)
the Senior Puisne Judge,
(b)
the Solicitor General,
(c)
a barrister of at least fifteen years standing nominated by the Bar
council, and
(d)
one other person from the private business sector with experience
of modern methods of recruitment and appointment, appointed by
the President acting in his own deliberate judgment after such
consultation as he thinks necessary.
5.11
We further recommend that within a short time of its reconstitution the
Commission should give advice to be incorporated in regulations of the
principles by which it will be guided in making appointments.
JUDGES ON CONTRACT
5.12
It has also been said that the possibility of Judges being appointed by
contract to serve beyond their normal retiring age should be removed,
since it is suggested that this may influence a Judge in the discharge of
his judicial responsibilities in order to secure for himself a contract
extension of his service.
5.13. We consider and recommend that in the present circumstances of
Mauritius the appointment by contract of Judges beyond the normal
retiring age should be discontinued. It is right that they should be able to
finish within a reasonable time beyond their normal retiring age work that
they had undertaken before attaining that age but this should be limited to
a period of say six months. This period should be sufficient to enable
completion of all work unfinished at the statutory retirement date.
5.14
We have recommended the setting up of a Court of Appeal Section of the
Supreme Court and it is clear that experience can be a very important
factor in the successful discharge of the responsibilities of a Court of
Appeal Judge. Having regard to the trends in the world generally and in
the Commonwealth we think it would be reasonable to raise the normal
retiring age for Judges to 67 leaving an option to those presently serving
to retire at 62 or go on until they attain 67. Because of the structure of the
Magistracy and the State Law Office and their relationship to the Supreme
Court we recommend that the retiring age of the Magistrates and the State
Law Officers should be raised to 65 again leaving an option to those
presently serving to retire at 60 or go until they attain 65.
TERMS & CONDITIONS
5.15
At present, two years service at the Bar is required for appointment of a
Barrister to the Magistracy. This was recently reduced from three years
because it was found impossible to get applicants of three years standing
to apply to join the magistracy at the salary being offered. We are of
opinion that this is a mistaken approach to the matter. We consider that
the previous requirement of three years at the bar is an important test of
ability of those who are to be appointed to the Magistracy and gives a
reasonable chance to assess their quality as Barristers. To reduce this
requirement because the remuneration offered is inadequate is, in our
view, to damage the quality of the Magistracy and particularly of the more
junior members of it. We have said, and we consider it important enough
to repeat, that the quality of those who join the State Law Office is of the
highest importance to the functioning of government, and in so far as the
State Law Office also often supplies the personnel who become
Magistrates and Judges is of vital importance to the quality of the Judiciary
and that quality is important both in the international standing of Mauritius
and in the service that the Judiciary gives to the public.
5.16
At present the remuneration of the Judiciary and the State Law Office is
determined by the Pay Research Bureau. We had the advantage of very
full explanations of how the Pay Research Bureau go about their task in
relation to the Judiciary but we have reached the firm conclusion that their
methods are not sufficiently flexible to give the legal and judicial service
the quality of applicants that is required. We consider that the proper way
of proceeding is to first fix the standard of experience required and so far
as appointments to the Magistracy are concerned we recommend a return
to three years in practice as the minimum requirement. The salary offered
at that stage must be sufficient to give the Judicial and Legal Service
Commission a choice of persons of quality to enter the Magistracy.
5.17
If the Judicial and Legal Service Commission on advertisement for
applicants to enter either the State Law Office or the Magistracy at the
most junior level does not produce a sufficient quality of candidates whom
the Commission would be comfortable to appoint then in our view it is vital
to raise the offered salary to a level at which such candidates do come
forward. In the light of the evidence we have heard we are of opinion that
the starting salary should be substantially higher than at present. We
consider that it should always be open to the Judicial and Legal Service
Commission to appoint applicants for judicial positions from private
practice, but in particular for the recruitment of District and Intermediate
Court Magistrates vacancies should be advertised. In the latter case,
members of the Magistracy and of the State Law Office should be able to
apply but the appointment should also be open to Barristers in private
practice. Again, the salary ought to be at a level which would give the
Judicial and Legal Service Commission a choice of candidates from within
the State Law Office and the Magistracy and also from outside who are of
sufficient quality that they would be comfortable to appoint, thus ensuring
adequate competition at that level for these important positions.
5.18
It has been suggested to us that it would be demotivating for members of
the Magistracy and State Law Office if persons could come in at the higher
level we have just suggested who had not carried the burden of earlier
service in the Magistracy or the State Law Office, but provided the
conditions which we have recommended are adhered to and the methods
of selection are fair so that the competition results in the best available
person being chosen we do not think there is a valid ground of complaint.
It is of course different if the persons in the public service are working for
remuneration which is unfairly below the level which they could expect to
earn taking account of overheads and the like in the private sector for then
it could be argued that having carried this burden at a reduced level of
remuneration they should have priority for promotion within the public
service. If our proposals are adhered to this ground of complaint will
disappear and the level of remuneration in the public service, taking
account of all the differences in circumstances between service in the
public sector and in the private sector, will be of the same order and of
course it is always open to a member of the Magistracy or the State Law
Office unless and until they become Supreme Court Judges to return to
private practice.
5.19
We consider that to have some members of the higher echelons of the
State Law Office and the Judiciary appointed after considerable service in
the private sector would enrich and broaden the character of the higher
Judiciary. On the other hand, we are strongly of the view that there is
nothing wrong with a system under which members of the State Law
Office are appointed to the higher Judiciary as we consider it unlikely that
there is a better source of experience available across the whole field of
law and in particular the law relating to international commerce and
regulation as well as administrative law than experience in the legal
service of the State.
We therefore recommend that for the future,
appointments to the higher Judiciary be made from the Magistracy and the
State Law Office with the Magistracy and the State Law Office being open
to admit members of the legal profession who have spent a considerable
time in successful private practice. We are fortified in this view by our
belief that it is vitally important that the State Law Office be seen as giving
completely independent legal advice and legal services to the Executive.
5.20
This brings us to consider whether there is a case for preventing transfer
above a certain level between the State Law Office and the Judiciary. For
a long period in Mauritius, there have been transfers from the legal service
to the judicial service and in the opposite direction.
Under the
arrangements that have been in place for a long time the Judicial and
Legal Service Commission appoint the professional members of the State
Law Office as well as the Judiciary apart from the Chief Justice and the
Senior Puisne Judge. In our opinion it is highly important as we have
already said that the executive of Mauritius should have available to it
independent, highly qualified legal advice. We believe that it is necessary
for efficient government in modern conditions that advice should be
regularly available and with a continuity between the adviser and the
advised to enable substantial projects of Government to have a single
adviser or team of advisers regularly available as the projects develop.
While this is true in all activity of the Government it is even more essential
in our opinion in the drafting of acts of the legislative assembly and
subordinate legislation. The policy of the Government is most likely to be
made effectual in accordance with the wishes of Ministers and the
legislative assembly if the acts of the legislative assembly are clearly
drafted by highly qualified lawyers who understand fully the policy of the
legislation and are able to elucidate the details of that policy in conjunction
with those responsible for developing it. This is a close and important
relationship and in the circumstances of Mauritius we consider that
parliamentary drafting requires to be an important and distinct part of the
institution or institutions giving legal advice to Government.
5.21. In addition Government requires a large variety of legal advice in respect
of developing policy in the various ministries and conducting the business
of the executive ministries in accordance with the provisions of the
relevant law. In present day conditions, and as those are likely to develop
in the future as we look forward to the next century, these subjects require
a considerable degree of specialisation and therefore there is much to be
said for the different departments of Government having their own legal
advisers, but Government as a whole is a coherent activity and activities
of one branch may well affect activities of another.
For example,
provisions relating to the treatment of offending children will be relating to
provisions affecting the prisons and similar institutions. The provisions
regulating road traffic require to be considered alongside provisions for
their enforcement by way of prosecution or otherwise.
5.22
Mauritius is a comparatively small jurisdiction and we believe it is
important therefore to have a sense of coherence in the operation of the
legal system and that to have a strong central State Law Office providing a
number of legal functions to Government is the best way forward.
5.23
On the other hand, as we have said the complexity of modern
Government makes it very difficult for anyone to be familiar with all the
details of what may be required and accordingly a certain amount of
specialization is necessary if the legal work and advice is to be of high
quality and efficiently delivered. This has been recognized already in the
Constitution by the provisions for the appointment of the Director of Public
Prosecutions. The powers of that office are extremely important in the
proper functioning of the Republic and we recommend that the importance
of it should be clearly recognized by the public and that the office holder
should enjoy the confidence of the public. We have heard it said that the
legal system in Mauritius is apt to catch the flies and miss the hornet. We
regard as an important aspect of the function of the Director of Public
Prosecutions that where there is sufficient evidence and it is appropriate in
the public interest to do so, a prosecution will be taken whoever the
person against whom the criminal allegations have been made may be,
and whatever his or her connections or rank may be. We consider that
this further requires that the Director should be supported lawyers of high
quality with experience of the law and developed judgment. We therefore
recommend that those who support the Director of Public Prosecutions in
the State Law Office should constitute a separate department reporting to
and managed by the Director of Public Prosecutions and with no
responsibilities except those relating to prosecution. We do not consider it
satisfactory that the prosecuting function should be discharged by people
who at the same time have other functions to discharge such as advising
other departments or drafting Bills, and are not under the management of
the Director of Public Prosecutions.
5.24. We have heard it said that there is a risk that those who come from the
State Law Office to the Magistracy may be prosecution minded.
We
would like it to be clear that those responsible for public prosecution, the
Director of Public Prosecutions and the Lawyers who work for and support
the Director in the execution of the Director’s functions are fair and decide
to prosecute only when they reach the judgment on the evidence and all
the circumstances that is fair and proper to do so and who consider it their
responsibility fairly an defectively to present the evidence before the court
when a decision to prosecute has been taken. The qualities of judgment
required in a fair Prosecutor and the strength and courage to act on these
judgments are qualities very similar to those which we consider desirable
in a Judge. And therefore we see no reason to doubt that extremely good
and fair-minded Magistrates and Judges may be recruited from amongst
those who have spent a considerable time in the office of the Director of
Public Prosecutions. Equally we consider that those who have performed
well in the Office of Magistrate may also be highly suitable for working in
support of the Director of Public Prosecutions as well as holding that office
itself.
5.25. As we have said, we consider the Director of Public Prosecutions should
direct a distinct department within the State Law Office and that those who
work in that department should do so only for that department and for a
reasonable period of time.
It should be open to members of that
department to be appointed to other parts of the State Law Office but we
consider it necessary that they should spend sufficient time, say three to
four years, continuously in the office of the Director to enable them to
acquire a high degree of expertise which they should use for the benefit of
the office for a reasonable time before moving elsewhere.
5.26. For these reasons we recommend that transfers between the State Law
Office including the office of the Director of Public Prosecutions and the
Magistracy should continue to be permissible.
AUTHORITY RESPONSIBLE FOR DETERMINING
THE REMUNERATION & RELATED CONDITIONS OF SERVICE
AND THE NUMBER OF JUDICIAL OFFICERS
5.27
The Pay Research Bureau determines remuneration across the public
service, but we are of opinion that the special position and importance of
the Judiciary and the Legal Service in Mauritius requires that special
consideration be given to their terms of service by a body with particular
knowledge of the importance to the economic and public well being of
Mauritius that the quality of the Judiciary and Legal Service be of the
highest standard, and we recommend that there should be instituted a
standing committee as a Judicial and Legal Service Establishment and
Additional Remuneration Committee consisting of a senior retired Judge, a
recently retired Head of the Civil Service, a member of the private legal
profession of senior standing and a senior member of the private,
commercial and business sector in Mauritius to have responsibility for
these matters. The appointments should be made by the President of the
Republic in his own deliberate judgment after such consultations as he
deems necessary. The remit of this committee would be to determine
from year to year the number of members of the Judiciary and the State
Law Office at each level that is required properly to serve the interests of
the people of Mauritius. They should also have authority to determine the
grades and numbers of supporting staff of the Judiciary and the State Law
Office. In addition they should be required to determine from year to year
what remuneration and allowances additional to that awarded by the Pay
Research Bureau would be appropriate for the various levels of the
Judiciary, the State Law Office and their supporting staff. It is important in
our view that the remuneration which the public know to be paid to the
Judiciary is of a sufficient amount to give confidence to the public that the
Judiciary can maintain the standard of life and devotion to work which the
public expect from them within the limits of the remuneration awarded. It
breeds suspicion if these conditions are not met and suspicion of any kind
relating to the Judiciary is in our opinion most damaging, not only to the
standing of the Judiciary in Mauritius itself but also to the position that
Mauritius holds in the international community and could damage the
potential for development of the economic position of Mauritius in the
world scene. In discharging their role of determining remuneration this
committee would particularly have in mind the results of competition for
appointment on entry to the State Law Office at the junior level and also at
the level of Intermediate Magistrate.
5.28
The committee should also consider the question whether any safeguards
are required in order to give public confidence in the integrity of the
Judiciary such as those presently placed upon politicians. This is a matter
of considerable delicacy and we have not heard evidence to suggest that
any specific measures are required.
We are simply concerned that
everyone in Mauritius should understand that the Judiciary is completely
beyond being influenced in any way by any motivation except a desire to
do justice according to the law to the parties before the court. If anyone in
Mauritius can entertain a reasonable doubt on this question and there
exist practical ways of resolving that doubt the committee will give effect to
these ways in their recommendations.
5.29
Questions have been raised about whether or not there should be rules of
conduct for all sections of the Judiciary and the legal profession. In our
view it is wise for the Judges and the Magistrates to have a code of a
conduct to which they will conform. Such a code would be valuable in
guiding the individual Judge or Magistrate and also in declaring to the
public the framework of conduct in which Judges work and live.
We
consider that there would be value in such a code but it must be a matter
for Judges and Magistrates themselves to formulate.
Chapter 6
THE STATE LAW OFFICE
6.1
We have already considered aspects of this office in earlier chapters since
they arose in connection with the subject matter of these chapters but we
turn now to look at the State Law Office in its own right.
SOLICITOR GENERAL
6.2
The Solicitor General is the head of the State Law Office and equivalent in
some aspects to the Permanent Secretary to a Ministry although he is also
an extremely important professional adviser to the Attorney General as his
Minister and to the Government as a whole. As the Constitution provides,
the Attorney General is the principal legal adviser of the Government and
is a Minister. The Solicitor General is a non-political public servant
appointed in terms of the constitution by the Judicial and Legal Service
Commission and we consider it important that he should have the security
of tenure appropriate to his status as the senior non-political legal adviser
to the Government which we consider should be that of a Supreme Court
Judge.
DIRECTOR OF PUBLIC PROSECUTIONS
6.3
We have suggested in a previous chapter that the Director of Public
Prosecutions and those who work as advisers and supporters of the
Director of Public Prosecution should be a distinct unit.
PARLIAMENTARY COUNSEL
6.4
We consider that it is important, as we have mentioned earlier, that the
work of drafting legislation should be done with reasonable continuity by a
person skilled in that work.
We consider therefore that the Office of
Parliamentary Counsel and those who support Parliamentary Counsel in
the advisory and drafting work should be assigned exclusively to that work
for a considerable period. Some may wish to devote their working lives to
it and it is important that the remuneration of the Parliamentary Counsel
should be determined on the basis that reaching that position is a fitting
conclusion to a successful legal career in the public service. The
Parliamentary Counsel should have a distinct unit for which he or she is
responsible which, while it forms part of the State Law Office, should be
under the management and direction of the Parliamentary Counsel.
6.5
While it is true that it is possible to obtain advice on a consultancy basis
from others, in our opinion there is nothing more likely to produce
coherence in the Stature Book of Mauritius than having the legislation
passed by the Legislative Assembly produced by those who have devoted
a great deal of time and effort to the study and production of the laws of
Mauritius. We should say in passing that we strongly recommend that
these laws be available readily by the use of modern information
technology since it is obvious that inaccessible laws are inefficient.
ARRANGEMENT IN STATE LAW OFFICE
6.6
Leaving aside now the work of the Director of Public Prosecutions and the
work of Parliamentary Counsel the remainder of the State Law Office is
available for the function of civil litigations and advice to Ministries. It has
been suggested that it would be efficient in present day conditions for
members of the State Law Office to be closely associated with particular
Ministries as legal advisers and we consider this is likely to be effective
because it will give the person appointed to assist a Ministry in this way,
opportunity to become particularly familiar with the legislation affecting that
Ministry and with which a generalist lawyer will not have the opportunity of
detailed acquaintance. It is however also important that legal advisers
should be independent and able to tell the Minister and senior officials of
the department what in their opinion is the correct view of the law and not
be under any obligation to tailor that opinion to what they perceive to be
the wishes of the Minister or department. Legal advice tailored in this way
is highly apt to be misleading and therefore dangerous for the Minister or
the department concerned.
We recommend that the members of the
State Law Office who may be allocated to advise particular Ministries may
certainly physically have their offices in these Ministries but they should
remain part of the State Law Office and on difficult matters of law or
propriety regard it as the proper course for them to bring these difficulties
to the attention of a senior colleague within the State Law Office including,
if necessary, the Solicitor General himself.
6.7
It will be apparent from what we have said that in our opinion the State
Law Office should remain as a single entity with distinct units for the
Director of Public Prosecutions and Parliamentary Counsel with
management responsibility in each of these units in the Director of Public
Prosecutions and Parliamentary Counsel respectively.
So long as the
principles upon which the State Law Office operates are in accordance
with those we have suggested, namely independence and high quality
with a degree of specialisation appropriate to the circumstances, we see
no need to separate it from the Judicial and the qualities required in the
Judiciary and the qualities requires in the State Law Office, if it is properly
to perform its functions to the State, are highly similar and in a
comparatively small country a degree of interchangeability between those
who serve the Judiciary and those who serve the State Law Office will be
the most likely to secure the best interests of the Republic.
6.8
Finally, in relation to this matter, we think that the requirements of the
Judiciary and the requirements of the State Law Office make necessary
and those who serve in these offices should be amongst the highest
quality of legal talent available in the country. It is for this read on that we
have made our earlier recommendations on the subjects of remuneration
and competition opened in some circumstances to the private practitioner.
Chapter 7
CRIMINAL MATTERS
BAIL
7.1
At this point we wish to deal with the question of whether the opportunity
should be taken to reform the system of bail. At present bail requires
generally the lodging of money or security and there are obviously
substantial costs to accused persons of limited means occasioned by this
system. The number of occasions on which people can effectively avoid
required appearance in Court in Mauritius is very small and therefore we
recommend that in future on the grant of bail, conditions should be
imposed to secure the attendance of the accused where necessary before
the Court and to require that the accused do not interfere with any of the
witnesses and that the court may impose any other particular
requirements that the Court should judge appropriate to the circumstances
of the case but it should be only in extremely exceptional circumstances
that any deposit of money or other security is required. As we said, the
opportunities for fleeing from justice in Mauritius for many of those
accused of crime is minimal. The breach of a bail condition should be a
criminal offence carrying a maximum penalty of Rs 5,000.
7.2
The type of exceptional case which we envisage in connection with
requiring money or other security in relation to bail is where organized
crime or very high stakes are involved for the individual concerned in
which it is possible to envisage that he or she might make elaborate
arrangements to flee from justice and in which case substantial money or
other security would be a reasonable way of counteracting that possibility.
ACCUSED PERSONS LEAVING MAURITIUS
7.3
The Police have been in the habit of intimating to the Passport and
Immigration Office when a person has been accused of crime that that
person should be prevented from leaving Mauritius.
While this is an
effective means of securing the continued presence in Mauritius of an
accused person in order that he may attend Court, we consider that in
many cases it can be an oppressively severe consequence of a criminal
accusation and that where this restriction on a person’s liberty to travel is
being used it should require the authority of a Supreme Court Judge. We
therefore recommend that where a prohibition against leaving Mauritius
has been initiated by the Police it should lapse after three days unless
confirmed by an Order of a Supreme Court Judge after notice to the
person accused. It should be possible for the Judge to impose conditions
in allowing the order to lapse, such as we have recommended above for
bail.
TIME LIMIT FOR PROSECUTION IN HIGHER COURTS
7.4
It has been clear from the evidence given to us that there can be a great
deal of delay after a matter has been reported to the police before a case
is lodged in Court.
We have already recommended time limits in the
District Court. For the Intermediate Court and the Supreme Court we
recommend that where a prosecution is commenced more than one year
after the police have received information that the offence is alleged to
have been committed, the Court shall dismiss the information unless the
prosecution can satisfy the Court that this delay was justified by reasons
for which the police or the prosecution are not responsible.
APPEAL AGAINST ACQUITTAL
7.5
We have dealt with certain procedural matters in relation to the District
Court but there are more general criminal matters which have been raised
with us and are related to our terms of reference with which we should
now deal.
The first is the suggestion that it is inappropriate that the
prosecution should have an appeal against acquittal. We recommend that
appeals should restricted in any other case to a question of law arising
within it. We do not consider it right that there should be an appeal on fact
in a criminal trial in which the accused has been acquitted but if the
Presiding Judge or Magistrate errs in law it seems to us appropriate and in
the public interest that error can be corrected by the Court of Appeal with
such consequence for the verdict may flow from that correction.
REFERENCE OF SENTENCES TO COURT OF APPEAL
7.6.
We have also had brought to our attention concern about variations in
sentence between cases that seem similar in circumstances.
Such
concerns may be generated by incomplete understanding of the factual
circumstances in the cases being compared, but we consider that the
existence of such concerns in relation to cases in the Intermediate or
Supreme Court should be dealt with by allowing the Director of Public
Prosecutions the opportunity to refer the case on sentence to the Court of
Appeal. This jurisdiction coupled with its jurisdiction in appeal against
sentence will enable the Court of Appeal to lay down guidelines for the
lower courts in dealing with different types of cases and this opportunity
should assist in giving a consistency to criminal sentences generally which
would be advantageous to the standing of the criminal justice system in
the minds of the people of Mauritius.
This procedure should not be
required in cases of a slip on the part of the Magistrate or Judge and we
recommend also that a Magistrate or Judge who considers that the
sentence he imposed on conviction was incorrect in law should have the
opportunity of correcting it in presence of the accused provided this is
done within seven days after the sentence has been pronounced.
COMMUNITY SERVICE
7.7
It was also suggested to us that consideration should be given to the
addition to the present powers of the Court to order a convicted person to
do community service. We consider that such an addition to the Court’s
powers could have considerable advantage.
The detail of the regime
requires to be considered and we have not had evidence to enable us to
form a conclusion on its matter but we provisionally recommend that the
Probation Service be asked to consider how such community service
orders might be put into practical effect and that in due course the
necessary legislation should be promoted.
INCENTIVE FOR TIMELY PLEA
7.8
Under the present system since the burden of proof is on the State there
is no real incentive for a person to plead guilty until the very last moment
before the trial. Pleas of guilty at the last moment are productive of waste
in relation to Court time and resources and more importantly wasteful of
the time and effort of witnesses including lay and police witnesses. This is
our view justifies as a matter of practical convenience making it known
that generally a discount will be allowed from the sentence if a plea of
guilty is timeously made. We think it unnecessary to do more than enact a
provision that the Court may mitigate the sentence that otherwise it would
pass having regard to the fact that a plea of guilty to the charge was
expeditiously tendered and we recommend a statutory provision to this
effect.
RECORDING OF STATEMENTS BY ACCUSED
7.9
We should mention that in our view the recording of confessions on audio
tape or where possible by video is an extremely effective way of cutting
down the need for Police oral evidence in court on this matter and usually
has the effect of considerably shortening the subsequent trial and we
recommend that facilities for this be urgently provided to the Police.
Although costly in their first provision such facilities would, we believe,
produce ultimate efficiency and savings which would very readily justify
that cost.
WRITTEN STATEMENTS AS EVIDENCE
7.10
We recommend that the present statutory provisions for certificates which
will be evidence of the facts stated therein should be extended to allow
any factor or opinion to be the subject of a written statement which can be
admitted in evidence in the absence of challenge. In particular where a
statement has been alleged to be made by an accused person, it would be
filed immediately after the fixing of the date of trial, and copied to the
accused and if not challenged, should be admissible on evidence. This
should save a great deal of time since in many cases such statements are
not challenged.
SITTING AND ORDER OF SPEECHES
7.11
Some evidence was directed to the seating arrangements for State Law
Officers at the Assize Court. It was suggested that there is an appearance
of preference being given to the lawyers prosecuting for the State over
those acting for the defence in the way the seating is arranged. We
recommend that in view of the misconception that this arrangement might
generate, even although we do not consider it to be in any way a
prejudicial arrangement but rather one dictated by tradition and history, it
would be abolished and the prosecution lawyers and the lawyers for the
defence should sit in approximately similar positions relative to the Court.
7.12
A more substantial point was raised in connection with the order of
speeches. Since the onus is on the prosecution to prove the case against
the accused it seems to us right that the last word should be afforded to
the accused.
We therefore recommend that in all cases the accused
should be afforded the opportunity to address the Court after all
submissions of the prosecution have been completed.
OFFENCES TAKEN INTO CONSIDERAITON
7.13
We have also considered whether the system of allowing a convicted
person to ask for other offences of a similar nature to be taken into
account by the Court in imposing sentence should be introduced in
Mauritius. We recommend that it should as it is a convenient way of
avoiding unnecessary appearances in court for the convicted person.
7.14. As a consequence we recommend that the District Court should have
power to remit a person convicted before it to the Intermediate Court for
sentence if the Magistrate considers his sentencing power inadequate to
deal with the full subject matter to be covered by this sentence. This
would apply where the convicted person had asked for other offences to
be taken into consideration but it might be appropriate in some exceptional
circumstances, and therefore we recommend it be conferred on the
District Court as a general power, to be used subject to appropriate
safeguards.
CAUTION
7.15
Another matter we wish to raise under this heading is that of caution as an
alternative to prosecution.
For a minor first offence it is often more
practical to warn the offender rather than prosecute but if he commits a
similar offence the next time he will be prosecuted. For persons of good
will this very often is more effective than prosecution itself with the
inconvenience that that can cause and we recommend that the Police
consider introducing a system under which an officer faced with an
incident out of which a prosecution could arise should consider whether a
caution would satisfy the ends of justice. We think it would be wise to
have safeguards in the form of a record preserved by the Police of the
incident, of the individual and the warning. Apart from any other reason
this would be required to make the warning effectual. The circumstances
in which such a caution or warning would be appropriate would be where,
as we said, the contravention or offence was a minor one, where it was a
first offence of the kind in question, where the accused did not seriously
dispute his guilt, and where his general manner was such as to make it
likely that a warning would suffice to produce law abiding conduct in this
respect for the future. The existence of such a system does we believe
help to generate respect for the criminal law and also avoids the Courts
being unnecessarily troubled with minor matters.
COSTS AGAINST PROSECTUTION
7.16. Finally, we were asked to consider the matter of costs against the
prosecution where the prosecution has failed. We consider it reasonable
and recommend that the Court should have power where a prosecution
has failed to award costs against the prosecution if the Court is satisfied
that on the information available to the prosecutor the prosecution should
not have been brought, or where the investigation by the prosecutor has
not been sufficiently thorough and if it has been, the prosecution would not
have been brought or in circumstances analogous to these. We do not
recommend that mere failure of the prosecution should give rise to costs
against the prosecution if, for example, that failure has arisen because a
witness has gone back upon a statement given to the prosecutor. We
make recommendations later in connection with a scale of costs which
could be relevant to this matter also.
Chapter 8
TAXATION OF COSTS
8.1
At present costs allowed by the Court to the winning party are quite
insubstantial and in no way adequately compensate that party for the cost
involved in going to law. Except in the case of small claims which we
consider should be exempt from this regime we recommend that, with the
consent of the Chief Justice, the Master should be allowed by law to
establish a realistic tariff for days in Court and matters related to litigation
generally. We hope that excessive detail would be avoided in this tariff
since attempting to fit too exactly the costs involved in individual cases is a
time consuming and unproductive exercise and we recommend that the
matter of taxation should be dealt with rapidly and this is more likely to be
achieved if each taxation is the responsibility of one officer. On the other
hand the evidence available to us suggests strongly that the Court should
have power to use the taxation of costs as a strong disincentive against
parties pursuing litigation unnecessarily and that where a person has had
to go to the costs of litigation and has been successful the party who has
put him to that necessity and whose position the Court has not sustained
should be liable to recompense the winning party to a reasonably
substantial extent for that cost. The tariff should take account of the
ordinary charges of Barristers and Attorneys and where appropriate
distinguish between cases in which the use of Senior Barristers would be
appropriate and those in which Junior Barristers only would be expected
to appear and also distinguish between fees charged in respect of the
different levels of Court. A reasonably simple tariff which is realistic would
in our view go a long way to assisting in the prevention of unnecessary
litigation without an unduly onerous and wasteful system of attempting too
accurately to assess the costs incurred by the litigant in the particular
case.
8.2
It this system which we recommend is introduced it will also provide an
incentive for settlement in cases which are reasonably being fought on the
basis, for example, of quantum.
8.3
We recommend that where a defendant offers to settle an action by way of
written offer to the plaintiff and the plaintiff does not accept it then
ordinarily if the plaintiff succeeds in recovering the amount offered or less
the plaintiff should also be found liable in the taxed costs of the
proceedings from the time by which he could reasonably have accepted
the offer to the conclusion of the action.
8.4
This would we think considerably assist is putting pressure on defendants
to consider the position of the case timeously and make a sensible offer.
It would also concentrate the minds of plaintiff on any offer made in view
of the consequences of proceeding without accepting it. We recommend
that this should be understood as the general rule. Obviously there could
be exceptional circumstances in which it would not be right to do so, and
for example in relation to actions of libel a successful plaintiff would
normally be entitled if he were going to settle the action to have an
apology as well as an award of damages so the rule which we have
suggested would apply in such cases only if in addition to an offer in
settlement of damages there was an adequate apology offered as well.
Chapter 9
ARBITRATION
9.1.
The Chamber of Commerce & Industry of Mauritius has forcefully drawn
our attention to the need for an up to date, effective law of arbitration in
Mauritius. The present law on arbitration is contained in the Code of civil
Procedure (Amendment Act) 1981. We feel that a text in the English
language will be more appropriate for the world business community. After
a good deal of careful deliberation an Arbitration Act was passed in
England and Wales in 1996 which in our opinion contains a possible
model for adaptation to Mauritius. As an alternative the present Mauritius
law may be translated into English.
9.2.
Mauritius has acceded to the 1958 New York convention on Foreign
Arbitral Awards but has not yet ratified this Convention. This could be
done extremely simply. The absence of ratification inhibits the opportunity
for Mauritius to participate in international arbitrations at present and we
recommend that as a matter of urgency this ratification should be enacted.
9.3.
The Chamber proposed to us that it would be highly desirable to produce
a booklet highlighting the advantages of Mauritius as a location for
international arbitrations and then providing a copy of the relevant
statutory provision of Mauritius and their own rules for conciliation and
arbitration of the permanent Court of Arbitration which they have set up.
We recommend this as a project to be pursued and we suggest that a
reasonably rapid way forward would be for copies of the English
Arbitration Act to be used as a basis for consultation in Mauritius on its
provisions, with a view to having in Mauritius a modern statutory text
which would incorporate the ratification of the New York Convention. If for
any reason it does not prove possible to carry this project through rapidly,
it would be very unwise to delay the simple ratification of the New York
Convention and we recommend that the ratification should happen quickly
in any event.
Chapter 10
FORENSIC AND PATHOLOGY SERVICES
10.1
At present forensic and pathology services in Mauritius are provided to the
Police by units which are part of the Police structure.
It follows that
generally speaking these services are available for the prosecution and
not for the defence and if the defence requires forensic or pathology
services frequently it is necessary for them to go beyond Mauritius at
considerable expense to obtain them.
10.2. We are strongly of the view that the forensic and pathology services
provided by the Republic of Mauritius should be so provided completely
independently of the Police and that an institute should be set up by the
Government of an independent kind with a trust deed and a grant for the
initial arrangements and then the institute should charge appropriately to
the Police of any other client wishing its services an appropriate amount to
meet its costs on a year by year basis. We have considered whether it
would be appropriate to seek to promote these services in conjunction
with the University of Mauritius but since the functions of the forensic and
pathology services are not primarily either as teaching or research this
does not seem appropriate and we conclude that the best way to proceed
is for the services to be provided under the structure of an independent
government sponsored trust.
10.3. We also should mention that in such a structure each member of the team
would be independent although using a common infrastructure in the trust
itself and for example therefore it would be perfectly reasonable for one
member of the institute to give advice to the prosecution whereas another
gives advice to the defence since each would be independent of the other
providing what we should regard as consultancy services within the
structure of the trust and the mere fact that the trust provided common
services to its consultants would not in any way preclude their
independence or prevent them from acting for different parties in a
litigation.
10.4. We regard this proposal as important to confidence in the administration of
justice, and in particular in expert evidence provided by the forensic and
pathology services to the Courts.
Chapter 11
ADMINSITRATION OF THE COURTS AND TRIBUNALS
11.1
Although ultimately the Judiciary of the Courts and Tribunals have the
responsibility for their administration, in our opinion, it is necessary for the
Judiciary to have proper support from persons qualified in the delicate
matter of court administration. Through no fault of their own the present
Court officers do not have this training. Many of them are keen to be
trained and we strongly recommend that they should be afforded every
reasonable opportunity to acquire this expertise and in order that they may
do so it will be necessary to enlarge the establishment to some extent so
that people may be relieved from their ordinary duties in order to study to
acquire these skills but we do not think the problem can be left to be
solved in this way although this is a major long term solution.
DIRECTOR OF COURT SERVICE
11.2
In the meantime we would recommend that the Chief Justice should be
given the support of a highly qualified manager with qualifications and
experience in resource, personnel and financial management.
That
person should be appointed to oversee under the Chief Justice all aspects
of the support which the Court Service gives to the Judiciary. We think it
might be appropriate to describe him as the Director of the Court Service
and we recommend that from amongst existing members of the Court staff
appointments should be made to assist the new Director in the various
aspects of his work and that early opportunity should be afforded to the
person so appointed top acquire management skills in respect of
resources, financial and personnel.
INFORMATION TECHNOLOGY
11.3
We have already recommended the use of information technology to
modernize the system of recording proceedings in the Courts in Mauritius.
Some work has already been done in this direction in the Supreme Court
and we recommend that it should be pushed ahead with all convenient
speed. We understand that the present proposals are based on very
effective systems being used in Singapore and Australia.
However,
information technology is a rapidly developing subject and it is highly
important that a person specially skilled in this area of expertise would be
appointed to the Court Service at managerial level as soon as possible.
We therefore recommend as a matter of urgency that an Information
Technology Manager be appointed reporting to the Director of the Court
Service to develop the proposals already in existence for information
technology in the Courts in connection with the recording of proceedings.
We believe that modern technology could greatly assist in the record
keeping of the court an din the cutting down of entries by hand in a variety
of books which is apt to be inefficient as a mode of reference
11.4
In our view unless these opportunities are grasped early the Courts in
Mauritius will drag behind those of other jurisdictions that are embracing
modern technology with considerable effect. The Information Technology
Manager should be a person of high calibre and considerable experience.
11.5
The Director will also need support on the personnel front and here we
hope it might be possible to provide for training for members of the
existing Court Service to take responsibility under the Director for this
aspect of the administration.
11.6. We consider that it would make for efficiency of the provision of Court
Services that there should be complete integration between the staffs of
the tribunals and the Courts in this respect and that the Director should be
able to allocate his staff appropriately to the various Courts. We consider
that a member of the Court Service should be allotted to each Court as
Court Clerk and that the Court Clerk would have the responsibility of
keeping a daily record of the time to f the start of the Court day and of the
time taken on each item of business transacted during that day apart from
purely formal matters which need not be catalogued individually.
We
believe that to have such a record is necessary if proper management
decisions are to be taken with regard to the listing of cases and the other
detailed arrangements which are required for the efficient running of the
Courts. These daily records should be available to the Director and the
Chief Justice on a regular basis.
The Court Clerk should have the
responsibility of listing the cases and making the day to day arrangements
necessary for the running of the Court under the direction of the
appropriate Presiding Judge or Magistrate.
11.7
Since in our recommended scheme the Chief Justice will have the
responsibility of presiding in the Court of Appeal he may find it convenient
to delegate the liaison between the Judiciary and the Court Service to one
of the other Judges since it is vital if the administration is to be successful
that the Director works to the instructions of the Judiciary and with the
support of the Judiciary while the Judiciary delegate to him and his
supporting staff the day to day running of the Courts.
COURT BUILDINGS
11.8
We have mentioned the state of the buildings and services therein
available to the Courts. We recommend that either a person with
experience of providing and maintaining buildings should be appointed as
Buildings Manager for the Court Service reporting to the Director, or that
provision be made for obtaining such services from the private sector on a
consultancy basis. The variety of services involved in the provision and
maintenance of buildings may well suggest the latter as the more
appropriate course. In any even we are clear that the Court Service must
have available to it expertise in the field of provision and maintenance of
court buildings if the Courts are to function properly and provide to the
Judges, Court Staff, professional users and the general public who resort
to them the accommodation and facilities which they require. In relation to
the future provision of Court Buildings, we recommend that it would greatly
facilitate listing, if at least two Court rooms were available in each Court
building and that a public reception room a robing room, and some
facilities for consultation as well as suitable office accommodation be also
provided. It is vital that the proceedings in Court be reasonably audible
and this aspect of the provision of Court rooms needs to be kept in mind.
SYSTEM OF ADMINISTRATION
11.9
In the Intermediate Court in its present location we recommend that a
Head Clerk should be appointed for each of the civil, criminal and possibly
family lists under which the cases being considered by that court are
grouped with responsibility under the Presiding Magistrate for the
administration of these lists in accordance with his directions.
11.10 Similar arrangements should apply to the District Court, a Senior Clerk
responsible in each District Court assisted by as many Court Clerks as are
required to service the number of Courts provided in the District. Again,
the individual Clerks should have the responsibility for the management of
their Court and the time keeping responsibility which we mentioned earlier.
11.11 We do not consider that it is necessary for the staff of the Court Service to
have legal qualifications but is should be regarded as a desirable
qualification carrying additional remuneration.
We think that it would
encourage initiative and full use of the talents of the existing members of
the Court Service if some of them were allotted the task of preparing the
necessary leaflets and information for the various matters on which the
public require information about the way the Courts work. We formed the
impression on the evidence we received that there are a number of very
enthusiastic members in the Court Service who would relish and give very
high quality of service in providing such material. We consider it extremely
important that the members of the Court Service who aspire to promotion
should have the opportunity not only of legal qualifications but also as an
alternative of management training as well as training in information
technology and we recommend that the service should be structured to
enable those who are willing to do so to have opportunities for study while
carrying on their work in the Courts.
RELATION OF COURTS WITH PUBLIC
11.12 We consider that there is considerable scope for improvement in the
public relations between the Courts and those who resort to them and that
the care of these clients is an aspect which requires very urgent and full
consideration. In each Court there should, we recommend, be a point to
which any member of the public attending the Court can go in order to
ascertain whether and when he is likely to be required and what is the
nature of the Court’s requirements in connection with him or her. These
points should also be provided with the leaflets and other information to
which we have already referred about the nature of the Court’s procedure,
including small claims, how to appeal, very clear information to go with the
notices from the District Court in regard to fixed penalties, and pleading
guilty by letter. This we consider to be an important aspect of relations
between the Court and the general public to minimize the extent to which
the public are unnecessarily inconvenienced by their attendances at
Court.
11.13 The arrangements made for the provision and maintenance of buildings
should include detailed instructions to the Court staff at the various Courts
on the maintenance of the fabric of and the services provided in their
buildings and how to deal with any problems that may arise so that they
may be efficiently disposed of.
11.14 It may be worth mentioning that in our opinion if the Court Service is to
function well as system for the passing of information from the
Headquarters to the various Officers involved in the work throughout
Mauritius plays an important part in the motivation of these Officers.
11.15. As for the public service generally we consider that a system of individual
appraisal should be instituted in the Court Service in which the line
manager of an officer is the person responsible for reporting on him or her.
At present we understand that the District Magistrate is the person
responsible for reporting on the staff who support him or her but we
consider that the appropriate line of reporting is the same as the line of
management and that, for example, the Senior Clerk in the District Court
should report on the Officers in that District Court and that the report on
the Senior Clerk should be made by his superior in the Court Service.
11.16 Obviously we have given only an outline of the management structure
which we think is important in order to provide effective support to the
Judiciary. The Director, whom we recommend should be appointed, will
have as his main responsibility to ensure an efficient management
structure for the Court Service as a whole.
Chapter 12
THE LEGAL PROFESSION
12.1
The present standards of entry to the legal profession are contained in the
Legal Practitioners Act as amended and the monitoring of the standards of
entry as laid down by these provisions is committed to the Council of
Legal Education.
QUALIFICATIONS AND TRAINING
12.2
We consider it necessary that a candidate for admission to the legal
profession in Mauritius should have a reasonable level of knowledge of
the laws of Mauritius and an intellectual ability which will enable that
knowledge to be effectively used but we also have to bear in mind the
practical aspects of legal service which impinge on the lives of ordinary
people in their day to day affairs. We consider therefore that while the
present academic attainments may be appropriate practical training is
equally important. We consider that examinations designed to test
knowledge of the practice of the law of intending Barristers, Attorneys and
Notaries should be at a time appropriate to their progress and in the light
of the submissions made to us we would Judge this to be after the
required period of pupilage or practical training rather than before it.
MAINTENANCE OF STANDARDS
12.3
The Council of Legal Education will have a responsibility for laying down
the generally accepted standards to which those who provide training
must adhere and we consider it an important part of the function of the
Council to monitor the provision of that training and to provide
examinations on it which take proper account of the different practical
techniques that practitioners may have who have been responsible for
providing training. It is not in the initial training of lawyers that we have
found concern but rather in the way that their profession is practised. The
regulation of the legal profession in Mauritius is in the hands of the
Supreme Court as they may be invited to carry out such regulation by the
Attorney General in particular cases and we have had illustrations of
complaints being made to the Chief Justice has little option other than to
refer the complaint to the practitioner complained of and receive his
explanation.
We consider that the system of regulations should be
strengthened.
12.4
The Bar Association has already been set up under statute and we
recommend that the Law Society should similarly be set up under stature
as it has proposed.
12.5
We have considered whether membership of the Bar Association should
be made compulsory for practice as a Barrister or membership of the Law
Society to be made compulsory for a member of the Attorney’s profession
to practice, and have reached the conclusion it is essential to the
maintenance of professional standards that it should be made compulsory
for practicing as a barrister that a person be a member of the bar
Association and that if and when the Law Society is set up under statute,
membership of the Law Society should be made compulsory for practicing
as an Attorney. This seems to us to be necessary in order to promote
high professional standards and to be of importance to safeguard public
order.
12.6
But in the light of the evidence we have heard we consider the urgent
necessity is for the promulgation of codes of ethics for the branches of the
profession by the professional bodies in the light of the circumstances that
now obtain. It will be for those bodies to draw up these codes, but there
are certain matters which we consider it essential that the codes should
provide.
12.7
The codes should require that where a payment is made by a client to a
legal practitioner, that legal practitioner should be under obligation to
deliver to the client a receipt for the full sum paid with a clear statement of
the work in respect of which the payment is made. This is particularly
important, for it appears often to happen that payment is taken before
work is commenced and the client is not aware of precisely what it is the
lawyer has undertaken to do in return for the payment. In our opinion it is
essential that a person having resort to the legal profession should know
precisely what it is the lawyer has undertaken to do in return for the
payment. In our opinion it is essential that a person having resort to the
legal profession should know precisely what it is he has paid for and be
able to ensure that the legal practitioner carries out the obligations in
return for which he has received the payment. We consider that it should
be open to a client every six months to require his legal practitioner if the
case is continuing, whether barrister or attorney, who has responsibility for
the conduct of his case to provide on request a report to him in writing in
language which he can be expected to understand on the situation in the
case at the date of the report.
It appears to us from what has been
submitted that members of the public are often left lamentably without
information about the progress of litigations in which they have a
fundamental and continuing interest.
We do not have to reach a
conclusion upon whether these complaints are all justified but we do most
strongly conclude that the possibility of such complaints should be
eliminated.
12.8
We have mentioned earlier the need for a degree of specialization in the
Judiciary and the State Law Office. These days it is even more important
for lawyers to be able to meet a variety of clients’ needs and it is becoming
more and more difficult for a single practitioner to provide a general
service.
We have therefore concluded that it is right that legal
practitioners in Mauritius other than Barristers should be allowed to
associate among themselves in any way which is in accord with the law of
association in Mauritius subject to the important condition that the legal
practitioner retains his own personal responsibility to the Court and the
client for his action or inaction in any litigation in which he is concerned
and that this duty should not be capable of delegation to any form of
association or partnership. Subject to that, we are of opinion that it would
be in the interests of a good standard of provision of legal service in
Mauritius that such associations should be promoted.
12.9
On the other hand, the barrister’s practice in Mauritius is still very much on
an individual basis and we recommend that the present situation should
be preserved so far as barristers who practice in the Courts of Mauritius
are concerned. Barristers who do not so practice would be able to enter
into any lawful Association among themselves.
12.10 This does not prevent any barrister working in an arrangement in which
more than one barrister has access to the Court file.
Such an
arrangement can have a very beneficial effect on the progress of a
litigation since the more junior member can often take over if a senior
member is for some reason suddenly unable to attend. We think that in
this way also the valuable experience acquired by senior members of the
profession can be transmitted to the more junior in a practical and
effective way without undue cost to the client. The provision of libraries
and other services is now so expensive that common services for a
number of practitioners is vital if their practice is to be carried on in a
reasonably economically viable fashion.
We therefore encourage
barristers to establish such arrangements. We deal later with the special
position of the Library of the Supreme Court.
12.11 We have been asked to consider the position of a barrister employed as a
law professor or teacher at the University of Mauritius. We recommend
that subject to the requirements of his arrangement with the University and
his terms of service which must have priority, such a barrister should not
be disqualified from practice by such employment.
ENFORCEMENT OF STANDARDS
12.12 We had thought in the early stages of our deliberations that it might be
right to entrust the regulation of the profession to the professional bodies
themselves but in the light of the representations made to us we have
concluded that this is not acceptable to them and therefore we propose
that there should be set up under statute a complaints committee with the
responsibility of considering complaints against any member of the legal
profession, of hearing evidence in support of and in contradiction of any
such complaint and reaching a conclusion upon whether or not the
complaint is made out. If the complaint has been made out which in the
opinion of the committee is of a serious nature the committee should be
obliged to report that to the Attorney General with a request that he place
the matter before the Supreme Court as a matter of urgency.
If the
committee is of the view that the complaint is made out but is not of a
serious nature, the committee may warn the practitioner concerned in
relation to his or her conduct for the future and may require the practitioner
to return to the client the whole or any part of the fees which have been
paid by the client in connection with the matter complained of.
We
consider that this committee should have statutory power to enforce the
attendance of witnesses and the production of documents and to conduct
its hearings in public or private as the circumstances may require. We
recommend that the Committee consist of a Supreme Court Judge
nominated by the Chief Justice, a Barrister of at least fifteen years
standing nominated by the Bar Council, an Attorney of at least fifteen
years standing nominated by the Law Society, a member of a State Law
Office nominated by the Solicitor General, the Committee to be services
by the State Law Office.
Chapter 13
CONTINUING LEGAL EDUCAITON
13.1
The law is a continuously developing subject and therefore the passing
today of an examination of competence in it does not necessarily mean
continuing competence for the future. The University of Mauritius has
made considerable progress in providing sound legal teaching and
research and in preparing students for qualification for legal practice in
Mauritius and providing innovative continuing legal education.
We
consider this an important source of training also for supporting staff of the
Courts and Lawyers. We think it highly desirable that the Council of Legal
Education in conjunction with the Judicial Studies Board which we later
recommend should be set up and the University of Mauritius should
organise
courses
for
continuing
education
of
Lawyers
in
legal
developments from time to time. In the present state of matters we do not
consider that those attendances could be made compulsory but we think
that the Bar Council and the Law Society should make public, from year to
year, the courses which have been given and the names of those who
have attended, that this information should be generally available to any
member of the public who may enquire, and that the profession should
undertake, from time to time, the necessary steps to make the public
aware that this information is obtainable.
13.2
We consider it particularly desirable that the members of the legal
profession should show a high standard of client care particularly where
they are dealing with the more deprived segments of the population who
cannot be expected to be familiar with the law and its requirements or to
have a ready understanding of its procedures.
Amongst the courses
which we hope will be available from year to year, we strongly recommend
that a course dealing with client care should permanently feature and we
consider that it may well be appropriate in some cases of complaint that
the Legal Profession Practices Committee, that we have recommended
should be set up, should require the practitioner against whom they have
found complaints substantiated to attend the next course on this subject.
Chapter 14
JUDICIAL STUDIES BOARD
14.1
At present there is no formal arrangement for studies by the Judiciary
following on their appointment. We consider that in the circumstances of
the present time such studies are vitally important to the success of the
Judiciary and we strongly recommend that a Judicial Studies Board be set
up to have the responsibility of organizing suitable induction training and
continuing training for Judges and Magistrates at their various levels. We
consider that the Judicial Studies Board should consist of two Judges, one
from the Court of Appeal and one from the High Court, an Intermediate
Court Magistrate, an Industrial Court Magistrate and a District Magistrate
with a suitably qualified academic lawyer and senior member of the
practicing private profession, all appointed by the Chief Justice to organise
the relevant courses. A suitable budget would require to be given and for
this essential purpose we consider that the Board should have a secretary
from the Court Service who would be responsible for making the
necessary practical arrangements to carry out the instructions of the
Board. We would hope that close integration of the relevant resources in
Mauritius would provide the backbone of these studies but we consider
that it may be necessary for participation in regional courses in view of the
comparatively small number that would require induction courses in
Mauritius at any one time and therefore that co-operation with other
institutions in the region providing judicial training might well be
appropriate.
It should be open to the Judicial Studies Board to invite
lectures from Judges from overseas and it should also be within the scope
of the responsibility of Judicial Studies Board to arrange for Judges and
Magistrates to travel overseas from time to time to participate in study
conferences also. We consider that the decisions on these matters should
be for the Judicial Studies Board with the budget allotted to it.
14.2
In view of the importance of the independence of the Judiciary we wish to
make it clear that we consider that the nature of the curriculum and the
selection of those who would take part in providing it would be a matter for
the judicial members of the Board primarily but we consider in view of the
nature of the State Law Office should be able to participate in the courses
and that from time to time courses might be provided of particular
relevance to them.
14.3
The Judicial Studies Board should, in our opinion, also have responsibility
for ensuring that newly appointed Magistrates are able to get the help and
support from their more senior colleagues that they require and we think it
would be advantageous that a newly appointed Magistrate should be
allotted to a more senior Magistrate as a person to whom he should have
recourse for help and discussion of problems that might emerge in the
early days of his service as a Magistrate.
14.4
The Council of Legal Education, the Law Faculty of the University, the Law
Reform Commission all have need for high quality legal resources in the
carrying out of their functions. In order that his be done economically in
the interests of the Republic we consider that care should be taken to
integrate the available resources as fully as possible.
Chapter 15
LEGAL AID AND RELATED MATTERS
15.1
We consider that legal aid should be available in serious criminal cases
and in civil cases to those who are genuinely unable to pay.
The
development of an affordable and fair provision of legal aid is a matter of
evolution and we consider it wise at the present stage simply to make
suggestions for modification of the scheme which has been operating for
some time with an indication of how, in our view, the matter might be
developed for the future.
15.2
In our opinion it would be fair to make the monthly income, which is the
basis for the grant of legal aid, the net after allowing for all necessary
outgoings and we so recommend. The present system would allow a
single man with no dependents legal aid on the same basis as a married
man with several dependents. We consider this to be unfair, and the best
way to alleviate the situation is to allow the deduction from the actual
income of reasonable outgoings before considering whether the monthly
income is under the required limit. A form should be provided for the
monthly income to be stated and then a list of the necessary outgoings
detailed so that the officer concerned with the assessment of legal aid in
the Court Service would have before him on a single form the necessary
information.
15.3
We also consider there may be injustice occasioned by the present
absolute nature of the capital and revenue limit.
For example we have
been told informally of a case in which a seriously disabled person’s only
asset was a house which had been inherited and which was let to a tenant
who refused to pay the rent. The rent was the only source of income for
this person and the house was worth considerably more than Rs 50,000.
The result was that because of his capital position the disabled person
was disqualified from obtaining legal aid, he had no hope of raising the
money because his only source of security was the house occupied by the
tenant refusing to pay any rent, and so a serious injustice arose. We
recommend that when an application is made for legal aid the person
responsible for grant or refusal should have a discretion in a case where
disqualification depends only on the capital limit to consider whether it is
reasonable for the applicant to finance the litigation out of his capital
assets. This would we consider make for fairer system than operates at
present.
15.4
It has been represented to us that the legal aid rates payable to Lawyers
are scarcely adequate to cover the services they are required to render in
return for the payment.
We consider that it would be necessary to
upgrade these rates and we believe it is a matter that should be dealt with
by the Master of the Supreme Court when revising the figures to be
allowed din taxation.
15.5
It has been drawn to our attention that where a case is conducted on legal
aid the lawyers sometimes feel that it is appropriate to provide a lesser
profession doing work during the year without knowing how much it will
earn and which will be paid only after the end of the year. Provided that
the work of legal aid is properly shared through the profession and that the
senior members (when called upon so to do) as well as the junior took an
appropriate amount of the responsibility, this we consider would provide a
possible way forward.
LEGAL ADVICE FOR THOSE WHO CANNOT PAY
15.7
But associated with the problem of legal aid is the problem of people in
poor circumstances unable to afford legal advice.
For this purpose a
network throughout the Republic, of advice bureaux would we consider be
extremely advantageous and likely to avoid unnecessary appearances in
Court by poorer people. We would hope that this structure could be set up
primarily by volunteers using a database written by experts to deal with
the legal situation arising from the common problems that confront one in
day to day life in Mauritius. The volunteers would require some training in
the principles of the law but the information provided by the database we
would hope would enable reasonably educated persons to provide
adequate help to deal with the problem in question. In the cases where
this was not so the bureaux would advise a person resorting to it to seek
legal advice.
We would hope that the legal profession would find it
possible to provide a service linked to these bureaux for people with
especially difficult problems. No doubt that would fall short of appearing for
them in Court. Appearance in Court we would expect to be dealt with
through the legal aid scheme proper but we would hope that legal advice
preparatory to action could be covered by these arrangements. We would
hope that the legal profession, the Bar Council and the Law Society
particularly would be prepared to join in setting up a committee to consider
a plan on these lines in which the consumer organizations would be
strongly represented.
An initiative on these lines led by the legal
profession would we consider be an act of public service suitable for the
profession and make a considerable contribution to the social conditions
of many people of low income in Mauritius.
CONCILIATION
15.8
We have recommended in relation to the District Court that a system for
disposing of small claims there should be set up, if as we hope a citizens
advice bureau on the lines just discussed be set up in Mauritius, we
consider and recommend that it should also provide for conciliation in
which both parties to a dispute would have an opportunity to go before a
person that we refer to as a conciliator in order that he might consider their
differences and suggest means for their resolution. The conciliator could
listen to the parties express their position orally, he could listen to any
witnesses either of them might have and he could accompany them to any
relevant scene.
15.9
if, and only if, an agreement is reached between the parties a written
document setting out the agreement should be prepared using a form
which should state.
(a)
the identity of the parties
(b)
the essential points that had been in dispute between them
(c)
what the parties had agreed, and
15.10 The form should be signed by both parties and the conciliator and issued
in three originals using self duplicating paper, one for each party and one
for the conciliator who should file it with the local office of the citizens’
advice bureau.
15.11 This agreement would be a mere private agreement and the fact that
parties were talking with the conciliator should have no effect on time
limitation to exercise the right or lodge a case in Court.
15.12 The qualities required for the conciliator would be pleasant manner, an
interest in the resolution of disputes and a good local reputation. We
would expect the appointment to be voluntary and to be made by the local
management of the citizens’ advice bureau.
15.13 This informal system is suggested as an option parallel to the procedure
we have suggested for small claims, without involving the Court.
COMPENSATION FOR CRIMINAL INJURIES
15.14 There have also been suggestions made to us that where people are the
victims of crime or offences such as road traffic offences and either the
person perpetrating the wrong is without resources or that person is never
brought to justice the injured person should be entitled to compensation
and that a criminal injuries compensation scheme is required. We believe
that such a scheme would add to the effectiveness of the rule of law in
Mauritius and should be considered by the Government.
Many such
schemes exist and we commend them for consideration but we do not
consider that it is within our remit to make detailed proposals for an
entirely new provision of this kind.
Chapter 16
THE USHERS
16.1
The Ushers are an important part of the structure of the Courts in
Mauritius, providing basically three distinct services. First the Ushers are
the Court Officers who call the cases and generally serve the Magistrates
and Judges in Court by supervising the practical arrangements that are
required, informing witnesses and defendants when they are required and
generally providing the practical backup which is necessary in the daily
functioning of the Court. Second, they serve process where service on a
person is required. This aspect of their work will be considerably affected
if our recommendation is accepted to use the postal service much more
widely than at present. The third function of the Usher is in the relation to
the execution of court orders.
16.2
Merely enumerating the functions of the Ushers is sufficient to underline
their importance in the efficient functioning of the Court. In earlier times in
Mauritius the Ushers were a private group paid for by fees from members
of the public using their services but, as we understand, largely by
pressure from the Ushers themselves they became State servants and
that is the present position.
16.3
We have had numerous complaints that cases are seriously delayed by
the lack of Usher services, for example, particularly in relation to the
service of process. We have been told that although the return dates
assigned when process is lodged gives ample time for service, because of
pressure on the Usher’s availability, service is often not effected until very
near the end of the return period with the result that an application is made
which can hardly be resisted for an extension of time in which to process
the defence.
16.4
It is obvious that when the Ushers are required to perform Court duties the
time available for their other activities is very restricted and it is also clear
that these days the execution of some types of court order requires a
considerable degree of specialization as, for example, the preparation of
an inventory of the assets of an important operating company.
16.5
We consider that the terms of service of the Ushers should require not
only the initial passing of examinations but also a programme of
continuing education which should be under the supervision of the Council
of Legal Education and these requirements are quite independent of the
question whether the Usher should be provided as part of the public
service or should be a private person authorized by the Court to perform
usher’s functions.
16.6
The principal question raised with us is whether the Usher’ services
should continue to be provided by public servants or should be provided
privately.
On this question we understand the Ushers themselves are
split.
16.7
The service of acting as Court Officers is we consider intimately bound up
with the day to day functioning of the Court and the requirement a close
liaison with the presiding Judge or Magistrate makes it necessary in our
view that the Court Officer should be a public servant with the terms of
service, including hours of work appropriate for the day to day running of
the Court, and we do not consider that this aspect of the usher’s work is
suitable for a person not in the public service. On the other hand, much of
the rest of the work of the Usher can and should be done outside the
Court but some at least during court hours and we see considerable
advantage in suitably qualified persons being authorized to perform these
functions as part of a profession organized by themselves. The provision
of sufficient people to carry out the available work would then be a matter
for ordinary business acumen of those seeking to provide this service. We
do not consider that it is necessary to prevent a continuation of the
present arrangement under which the service of process, so far as it shall
continue to be necessary, and the execution of judgment can be
performed by ushers who are full time public servants but we recommend
that it should be possible for a person properly qualified as an Usher in
accordance with the requirements laid down for that purpose to be
authorized to act as an Usher for the purpose of serving Court process or
executing Court judgments by the Chief Justice if the Chief Justice is
satisfied that he or she is suitably qualified and is a person of integrity
appropriate to be granted a certificate to act as an Usher. Any complaints
against Ushers should be dealt with by the disciplinary committee that we
have suggested for the legal profession, the result of any decision by that
committee in relation to an Usher should be communicated to the Chief
Justice who would have the right to withdraw the Usher’s certificate or, if
the thought it appropriate, to make conditions on his continuing to act as
an Usher.
16.8
We believe that these recommendations, if implemented, would
considerably contribute to the efficiency of the Ushers service.
In
particular the rather specialized work arising from the necessity for
enforcement against companies would create opportunities for Ushers in
the private profession to specialize in a way in which we would expect to
improve the efficiency of the discharge of these specialist activities.
16.9
In view of their representations to us we would expect some of the present
Ushers to elect to become private Ushers and in any event the balance
between public and private Ushers would we think gradually be
determined by the demands made by Court users to that the public
service establishment of Ushers should be reviewed in the light of this
experience over the next year or two if our recommendation is accepted.
Chapter 17
SUPREME COURT LIBRARY
17.1
The most important resource for a lawyer is that which provides him with
information about the law in its legislated form and in decisions of the
Courts. The amount of such information required by and that should he
available to the modern Lawyer in a jurisdiction such as Mauritius is very
considerable and the idea of every Lawyer providing himself or herself
independently with it would involve a great amount of resources and in our
judgment this is unnecessary. For the Judges of the Supreme Court this
is met by the provision of the Supreme Court Library.
This library is
essentially the main working resource of the higher Judiciary and their
requirements must be the primary guide to the provision made in it. We
were very much impressed by the devotion of the Librarian and staff in
their efforts to meet the Judges’ requirements.
17.2
It is in our opinion vital for the preservation of the value of the Library that
it be adequately resourced to maintain the older books presently part of it
and that adequate accommodation for their storage and adequate
provision for the repair and maintenance of these books should be
available.
17.3
The nature of present purchases should be decided by reference to the
requirements of the Judges and, generally speaking, we feel that the
budget of the Library should provide sufficient funds to enable the
Librarian to purchase any book or periodical which the higher Judiciary
may reasonably require for the discharge of their judicial duties and in
view of the modern technology available it may be that some of these
requirements are best met in the form of disks or other modes of storage.
But in any even each of these items is valuable, and the responsibility for
their maintenance being on the Librarian, any Judge who borrows an item
from the Library must be required to sign a receipt as a condition of taking
it out of the Library precincts. The signature should be either that of the
Judge himself or herself or an authorised officer of the Judge, it being
understood that their responsibility for re-delivery to the Library will
ultimately be that of the Judge.
17.4
It is also important that the Magistrates, the State Law Office officials and
Barristers, Attorneys and Notaries, academic Lawyers and indeed the
legal profession in Mauritius as a whole should have access to library
resources to a reasonable extent since it is obviously not feasible for them
all to provide themselves fully with these resources.
17.5
However, the principal law Library in Mauritius must in our view continue
to be that of the higher Judiciary with close support from the law Library of
the University of Mauritius.
For the more academic works one would
expect the law Library of the University to be the principal repository but
we hope that the law Library of the University and the Library of the higher
Judiciary maintain a close liaison.
Where it would be reasonably
convenient for the Judges and other members of the profession to obtain
the item from either library it would be important to avoid unnecessary
duplication.
17.6
It has been pointed out to us that there is no readily accessible list of
Treaties to which the Republic of Mauritius is a party. We recommend that
as a matter of urgency, the Supreme Court Library should, with the help of
the Ministry of Foreign Affairs and the State Law Office, compile such a list
with copies of the relevant Treaties. To have such information accessible
is of vital importance for international transactions in Mauritius.
17.7
We recommend that the State Law Office and the private legal profession,
including students and academic lawyers, should have access to the
Library of the Judges in return for reasonable payments and that these
should be determined by the Librarian in conjunction with the Chief Justice
after consultation with the legal profession. This could include a basic
annual subscription in particular, access to information services,
photocopying and the like should be the subject of specific charges and
we think that it would be very convenient if a practitioner had an account
with an account card in respect of which entries could be made as and
when the Library service was used with an obligation on the practitioner to
pay the balance on his account on some convenient basis such as
monthly or quarterly. We consider that it is important that the opening
hours should accommodate the needs of the profession to do research
and that the financial arrangements with the profession should take
account of this.
17.8
The reading accommodation is at the moment somewhat restricted. In the
proposals for the provision of buildings for the Courts in Mauritius, this
would be an important aspect to be taken into account, but we would
suggest that so long as the present situation prevails practitioners who
can borrow the books to consult them outside the Library itself should be
permitted to do so, as long as there is a receipt given by the practitioner
and an obligation stringently enforced to return the item within a
reasonable time.
Chapter 18
RODRIGUES
18.1
Rodrigues is part of the Republic of Mauritius and at the moment the Court
there is served by a Magistrate who attends roughly on a five week cycle
and a Judge of the Supreme Court who goes from time to time as
necessary, particularly to deal with family cases.
18.2
Although the only formal representation we received with regard to
Rodrigues was from the Senior Probation Officer of Rodrigues we had
considerable opportunity to ascertain the position in Rodrigues as a result
of our visits there.
18.3
The court building in Rodrigues is new and by comparison with many of
the Courts in Mauritius itself is of very high functional standard.
18.4
Historically the Court in Rodrigues was served by a full-time Magistrate
who was also responsible for the administration in Rodrigues. Since the
establishment of a separate civil administration in Rodrigues the Court has
been served by visits from Magistrates and Judges based in Mauritius and
visiting Rodrigues on a part-time basis.
Rodrigues has developed
considerably over the years since that change was made and we found a
considerable degree of feeling in Rodrigues that while the Island of
Rodrigues is an integral part of the Republic of Mauritius, so far as justice
was concerned it was being served only on a part-time basis. The amount
of work in the Court in Rodrigues would not, in our opinion, justify a
Magistrate full-time, but on the other hand, it is growing and we have
reached the conclusion that particularly in regard to matters of bail, it
would now be wise to provide for a Magistrate to be situated on Rodrigues
on a permanent basis.
This would meet the strong feeling in the
community for a representative of the justice system to be seen to be
present among them and we recommend that an Intermediate Court
Magistrate should be appointed. The Court in Rodrigues has jurisdiction
not only of a District Court in Mauritius but also of the Intermediate Court
in criminal and Industrial court matters and on this aspect up until now
there has been a discrimination between Rodrigues and the Island of
Mauritius itself in the respect that two Magistrates have been required in
the Intermediate Court whereas only one has sat on cases of
corresponding seriousness in Rodrigues.
Our recommendation with
regard to the position in Mauritius will remove this anomaly and if on
occasion two Magistrates were required to sit on a case in Rodrigues no
doubt this could be arranged. We recommend that the Court in Rodrigues
should have the full jurisdiction of the Intermediate Court, the Industrial
Court, and the District Court and all family matters except the reserved
matters.
18.5
We perfectly appreciate that there may be personal problems to be
resolved in arranging for a Intermediate Court Magistrate to be
permanently situated in Rodrigues but we recommend that these should
be tackled and that the necessary steps for this purpose should be taken,
including the provision of a suitable residence, reasonably generous
travelling allowances for return to Mauritius and a period of service in
Rodrigues which would not be unduly long and yet provide a degree of
continuity for the people of Rodrigues.
18.6
We also consider that there is pressing need for legal advice and
representation to be available from practitioners based in Rodrigues. We
suggest that one way in which this could be encouraged now that
graduates from Rodrigues are turning to the law is that the Government in
Rodrigues might enter into arrangements with perhaps two private
practitioners that if they were to set up offices there the Government would
use their services to a contracted extent which would be sufficient to
encourage them to start up in practice with a guaranteed base for a period
of perhaps three years.
18.7
It was suggested to us that the State Law Office should send an officer to
Rodrigues on a permanent basis to assist the various Government
agencies there including the Police since it takes quite an inordinate time
to get suitable advice from Mauritius In view of the complete absence of
legal advice from practitioners based in Rodrigues for the people of
Rodrigues itself we have preferred to suggest the use of private
practitioners to provide legal advice to the Minister, the Island Secretary
and generally to the administration in Rodrigues.
The law applying in
Rodrigues is in important respects different from the law applying in the
Island of Mauritius and for this reason also we think that specialisaiton in
the law of Rodrigues is more likely to be of interest to a practitioner
established in Rodrigues than it would be to a member of the State Law
Office allocated to Rodrigues only for a limited time but the principal
reason for the recommendation we have made is the pressing importance
of making legal advice available in Rodrigues to the people there.
18.8
We also mentioned earlier in relation to the fixed penalty system that
consideration should be given to fix a different level in Rodrigues from that
in the island of Mauritius in view of the different economic circumstances
there.
18.9
But notwithstanding these recommendations, it will still be necessary from
time to time for the Government, the Police, the Coast Guard and the
Forestry Protection Service to obtain advice from the State Law Office in
Port Louis. We strongly recommend that the State Law Office designate a
particular officer in each of the three units which we have recommended
should be set up, namely the Director of Public Prosecutions, the Office of
Parliamentary Counsel and the General State Law Office, to deal with
problems referred from Rodrigues. That officer should be known by name
to the relevant authorities in Rodrigues and be capable of being referred to
directly without the matter having to go through any other Ministry or
authority in Mauritius.
The present arrangements seem to us to be
productive of quite inordinate and unnecessary delay and we consider that
what we are proposing will greatly assist in the expedition of justice in
Rodrigues.
18.10 The Court in Rodrigues is special in one other respect, that the person
acting as an Usher in Rodrigues is a Police Officer. While we were greatly
impressed by his efficiency, authority and independence from the police
we do not consider it satisfactory that the principal court officer should be
a Policeman and therefore we recommend that this situation be changed.
We consider that a qualified Usher should be authorised for Rodrigues.
18.11 The arrangements we have proposed for family work would mean that
family jurisdiction will be continuously available in Rodrigues with obvious
advantages.
If the jurisdiction of the High Court were required to be
invoked in Rodrigues, then a Judge would require to travel to Rodrigues
but the number of occasions when this would be so would be considerably
fewer than at present.
18.12 A further problem has been drawn to our attention arising out of the
distance of Rodrigues from the Island of Mauritius in that young persons
who require to be committed for care to a residential home have to be
taken from Rodrigues to Mauritius.
These are children normally
somewhat disturbed, which has led them into the position of requiring
care, and transferring them so far from home has a very damaging effect
on these children. Apart from the journey, they are likely to be completely
cut off from their relatives who are likely to be unable to afford to travel
from Rodrigues to visit them in Mauritius. We therefore recommend that
an early opportunity be taken to provide suitable accommodation in
Rodrigues. We have been informed of the difficulty of obtaining suitable
accommodation for this purpose, having regard to the small number
required to be catered for, but we do consider this to be an important
matter and one that should engage the attention of the Government so as
to ensure that the children of Rodrigues who requires residential care are
looked after in an appropriate way on that island.
Chapter 19
INCIDENTAL MATTERS THAT HAVE BEEN RAISED WITH US
SIMPLE SYSTEM FOR RECORDING ROAD ACCIDENTS
19.1
It has been suggested to us that in road traffic accident matters to save
the time of police officers and to simplify the process of establishing
evidence, Mauritius should adopt a practice inspired from the European
system of informal statement of the circumstances of the accident by the
parties.
A printed form is distributed to their clients by insurance
companies to be kept in each car. This form, the same for all companies,
is made on self duplicating paper so that each driver can keep a copy of
what has been mentioned, signed by both parties and sent to each party’s
insurer. At the time of the accident, by ticking boxes on these forms, the
drivers may agree on a report of the facts. Space is provided for a simple
drawing showing the places of the vehicles at the moment of the accident
and any other relevant detail. This form is not an acknowledgment of
liability. These forms are used by Insurance Companies to settle between
them most of the road traffic accident cases on the basis of a general
agreement dealing with a pre-established scheme of distribution of
liabilities.
LAND RECORDS
19.2
We have already mentioned the problem of delay caused by the state of
the records of the Conservator of Mortgages. We understand that reform
of the procedure for Registration of Title in Mauritius is under way and we
would strongly recommend this being pursued with the utmost vigour. A
system of public reliable registers of landholding is, in our opinion,
essential to sound economic development, the registers including not only
the Title of Ownership but also of debts or other charges affecting the
ownership of land.
QUALIFICATIONS OF OFFICIALS
19.3
We have had some evidence of persons not qualified in law in official
positions taking decisions which depended on views of the law which were
controversial and we recommend that consideration be given to making
both the Registrar General and the Official Receiver offices that require
appropriate legal qualification in both cases as Attorneys.
CONTEMPT OF COURT
19.4
We have also received representations with regard to the law of Contempt
of Court in Mauritius. We consider that the proper basis for the law of
Contempt of Court rests not on preventing legitimate criticism of a court
judgment once issued but rather is directed against publications or
activities which are apt to prejudice the course of justice while a case is
pending, or interferes with the actual conduct of the case in such a way as
to inhibit the course of justice. We consider that it is not within our remit to
propose detailed provisions affecting the law of Contempt of Court but we
do consider this is a subject upon which the Law Reform Commission
should take an early opportunity of reviewing the existing law with a view
to its reform.
MUSLIM PERSONAL LAW
19.5
We were also invited to recommend that Muslim Personal law be
incorporated into the law of Mauritius.
After carefully considering the
argument persuasively advanced to us, we have reached the conclusion
that this matter is not within the terms of our remit and we must leave it
therefore to be considered elsewhere.
Chapter 20
CONCLUDING REMARKS
20.1
We have endeavoured to report on the full subject matter of our remit with
particular emphasis on representations made to us on particular issues.
We consider that the recommendations we have made, particularly those
that will involve budget expenditure are the most economical that we could
suggest having regard to the need for an efficient, modern system of
justice and a modern structure for the legal professions to be operating in
Mauritius in the future. It is not easy to estimate the amount of budget
expenditure involved since it is very much a matter of testing the market in
relation to most of the measures that we have proposed. Some increases
in remuneration will result but again we consider that these are the
minimum likely to produce the quality of Judiciary, Magistrates and legal
advice and assistance to Government that the modern Republic of
Mauritius requires. A good deal of the cost savings that our proposals will
entail, will accrue not to central Government but to the business
community and the public of Mauritius.
20.2
Our recommendations are designed strongly to underline the integrity and
independence of the Judiciary in Mauritius enabling the members of the
Judiciary to perform their functions without any improper interference from
any quarter. It is important in our view that the Judiciary be allotted a
budget and with the support which we recommend they should have in
discharging their functions we believe that the budget should be left to
them to administer under the various heads in respect of which it is
allotted without any reference back to the Legislature or the Executive.
The accounts of the Judiciary would be audited in the usual way and be
subject to the same scrutiny from that point of view as any other
expenditure of public money.
20.3
As we said in our introduction one of the problems of the present situation
of the legal system of Mauritius is the extent to which the interest of those
who use it but are not part of it seem to them to be neglected.
20.4
We have considered essential to the discharge of our responsibilities to
make recommendations which deal fully with this problem. We have done
so in relation to the structure and proceedings of the various Courts but
particularly the District Court, in relation to the legal profession, and in
relation to the provision of Court buildings with full account being taken of
the needs of members of the public who resort to them.
We have
recommended that not only should full information be available to anyone
who asks for it in the form of leaflets and information personally
communicated but also that the convenience of individual members of the
public who require to attend Court either as parties to a litigation or as
witnesses should be taken into account in the arrangements the court
makes.
20.5
Given the urgency, the wide scope and the far reaching nature of our
recommendations in this Report, we recommend that, if they are
accepted, the detail work required for their timely implementation, should
be entrusted to a small dedicated team under the leadership of an
experienced lawyer.
20.6
We would like to record our thanks to all those who submitted written
memoranda to us and also to those who came to give evidence orally. The
Commission benefited greatly from the chance of discussing problems in this
way. We would like to thank our Secretary and the secretarial staff and their
technical support for the loyal and efficient service they have given us in the
preparation of the report and we would like to thank His Excellency the
President and the Government of Mauritius for entrusting us with this task
which by the submission of this report we have concluded.
Lord Mackay of Clashfern ……………….Chairman
Professor Michel Borysewicz ……………Member
Sir Abdool Hamid Adam Moollan QC……Member
Mr. George Andre Robert ,SA………… ...Member
Mr. Kishore Sunil Banymandhut……….…Member
February 1998