MAURITIUS: An Introduction to Dispute Resolution

Introduction 

The past financial year has been one of rapid economic growth for Mauritius, on a par with its fastest-paced growth in over 35 years. Over the past year, the country has seen 50% more foreign direct investment than in the previous financial year. Mauritius cemented its place as one of the 20 fastest-growing economies in the world, according to the IMF’s World Economic Outlook in April 2023. The political situation in the country also remains stable, with the incumbent government planning to see out its term. The next general elections are due some time in 2024/2025. The political stability, fast economic growth and staunch independence of the judiciary have favoured investment. Mauritius also continues to act as a sound and safe bridge for investments into Africa and Asia.

According to the Annual Report of the Judiciary for 2022 (published on 17 July 2023), the year saw a 6% rise in the total number of cases lodged (excluding appeals) and an increase of 11.5% in the total number of cases (excluding appeals) which were disposed of by the Supreme Court of Mauritius. The Commercial Division recorded a high of 56.1% of cases disposed of within three months. The Mediation Division, which deals with an increasing number of cases each year and promotes the resolution of disputes through mediation, registered 20.4% of its “recorded agreements” before the Supreme Court.

Significant Cases 

Over the past year, there have been a number of significant cases both before the Supreme Court and the Judicial Committee of the Privy Council, which is Mauritius’ highest court of appeal.

In terms of public law, in S Boolell v The Independent Commission Against Corruption and others (2023) SCJ 53, the Supreme Court recognised the duty of candour imposed on a public body in the context of an application for judicial review. The court, however, while relying on English authority, also clarified that an order for disclosure of documents and information would only be made in the context of an application for judicial review, where such an order was deemed to be (really) necessary in order to resolve the matter before the court fairly and justly.

In relation to human rights, in Ah Seek v The State of Mauritius (2023) SCJ 399, the Mauritius Supreme Court read down Section 250 of the Criminal Code to allow sexual relations between consenting male adults. In doing so, the Supreme Court interpreted the word “sex” in Section 16 of the Constitution as “sexual orientation”. The judgment was a significant step in relation to the recognition of LGBT rights in the country, and in progressing the anti-discrimination provisions which are enshrined in the Constitution.

In Best Construct Co Ltd v The Central Water Authority and another (2023) SCJ 257, the applicant sought an injunction to prevent the Central Water Authority from enforcing performance guarantees pending mediation between the parties. The case is of interest in so far as it relates to the doctrine of “unconscionability”, which if relevant would have prevented the applicant from obtaining equitable relief. Ultimately, the judge in chambers refused the application, but did not find that the conduct of the applicant had been unconscionable.

In Stanford Asset Holdings Ltd v Afrasia Bank Limited (2023) UKPC 35, the Judicial Committee of the Privy Council was called upon to determine whether the victim of a fraud was entitled to a court order compelling a third party, a bank, to disclose information relating to the fraud, notwithstanding the obligation of confidentiality imposed on banks under Section 64 of the Banking Act. The Board concluded that the making of the order sought by the appellants was indeed an appropriate and proportionate response in the circumstances of the case and was necessary in order for justice to be done. The appeal was allowed and the disclosure order sought by the appellants was granted as a matter of urgency before the full judgment was eventually published two months later. The availability of Norwich Pharmacal relief in the jurisdiction, in relation to banks, is especially important in ensuring that victims of fraud are adequately protected. The decision is also important in so far as it reaffirms the availability of equitable relief in Mauritius.

Surendra Dayal v Pravind Kumar Jugnauth (2023) UKPC 37 was an appeal to the Judicial Committee of the Privy Council with respect to the last remaining election petition arising from general elections held in 2019. The Supreme Court had, by the time judgment was delivered by the Board, been called upon to deal with 11 election petitions (including this one). In this case, the appellant, who unsuccessfully ran for a parliamentary seat in the same constituency as the elected prime minister, sought to challenge the election of the three elected candidates on the grounds of alleged bribery and treating for the purpose of Section 64 of the Representation of the People Act. The Supreme Court dismissed the petition on all grounds. On appeal to the Judicial Committee of the Privy Council, the Board found that the Supreme Court was right to conclude that the respondents were not guilty of bribery or treating, and that what happened constituted normal electoral campaigning. The Board therefore dismissed the petition on all grounds.

ENL Limited and another v The Independent Commission Against Corruption in the presence of others (2023) SCJ 190 was a full bench decision of the Supreme Court which clarified an important point as to the representation of local companies (including global business companies) before the courts in Mauritius. The court found that the Deposit of Powers of Attorney Act (DPA) did not apply to local companies. Such entities could be represented in court pursuant to a resolution produced at the start of the process or if the representation was subsequently ratified by the company. This was an important correction to case law as there had, hitherto, been a body of authority which required a number of procedural hurdles to be cleared before a company was able to be properly represented in court.

The decision does not however deal with the DPA, which currently still appears to apply to foreign companies. Mauritius is a signatory of the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, but strict procedures have to be followed before these documents are used in Mauritius. The case law applying the DPA requires that any person who leaves or has left Mauritius and has appointed an attorney in Mauritius, including a foreign entity that wishes to give evidence before the Mauritian courts through an agent, must deposit their power of attorney with a notary in Mauritius, after which, it needs to be filed in the Registry of the Supreme Court. This has given rise to substantial issues for the unwary, for those who are unable to travel to Mauritius and for those requiring urgent access to the court. Furthermore, case law also requires that before any use is made of a foreign document before the courts in Mauritius, it needs to be apostilled in the country in which it was made, subject to that country also being a signatory to the Hague Convention. While (arguably) the better view is that the DPA should not apply to foreign entities, case law in its current form requires compliance with the provisions of the act.

Conclusion 

On the whole, 2023 has been an interesting year for dispute resolution, with the courts taking a progressive stance in terms of the protection of human rights, access to justice and the development of equitable relief.