2.

HISTORY OF LAW

We shall see that Mauritian law is a mixture of both French and English
Law. In fact, the law relating to practice and procedure is English whilst the
substantive part is French.

Also, the law relating to Judicial Review, trade,

commerce, shipping, finance, banking, trust is all English.

Above all, the

constitution follows the Westminster model and owes much to British and
commonwealth experience.

Though Mauritian law is both of French and English inspiration, yet by a kind of
osmosis the system has combined elements of its inherited traditions and in their
fusion produced a distinct corpus of Mauritian law.

French Period (1715 1810)

Laws in Force:
In the early years, there were different laws for different people living in
Mauritius e.g. for slaves we had the Code Noir.
With the French Revolution, a colonial Assembly was created.
In 1794, the colonial Assembly promulgated the 1789 French Dclaration
des Droits de lHomme et du Citoyen.
In 1804, the Civil Code was promulgated in the French Colonies (Reunion
and Mauritius).
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The Civil Code was re-promulgated on 21 April 1808 as the Code

Napolon.
The French Code de Procdure Civile of 1807 was promulgated on 20 July
1808.
The French Code de Commerce of 1807 was promulgated on 14 July
1809.
There was a Code Pnale in 1810 but it was not promulgated.

The Court System and Legal Profession

In 1721, a Conseil Provisoire with civil and criminal jurisdiction was set up.
By an Edict of 1723, a Conseil Provincial for Isle de France was created to
act as a Court of First Instance (Tribunal de Premire Instance).
Its decisions could be subjected to appeal, to the Conseil Suprieur of
Bourbon (Runion).
In 1734, the Conseil Provincial was replaced by the Conseil Suprieur for
the Isle de France, which acted as a court of first instance and last resort.
A tribunal Terrier (Land Court) was set up to deal with disputes involving
land.
One could appeal from the Conseil Suprieur to the Conseil du Roi.
In 1771, a Royal Edict established a Royal Court to hear cases at first
instance, the Conseil Suprieur being constituted as a court of appeal from
decisions of the newly created Court of Royal Jurisdiction.
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In 1793, the Conseil Suprieur was given appellation of Cour dAppel

which consisted of nine judges; the Court of Royal Jurisdiction was
restyled Tribunal de Premire Instance.

Decisions of the Conseil Suprieur could be the subject of a pourvoi en

cassation to the Tribunal, later the Cour de Cassation in Paris.
In 1723, the notariat as one of branches of the legal profession was
established. As from 1778, with the increase in the number of barristers
and attorneys coming from France, the legal profession was regulated. An
Ordre du Barreau was set on 9 May 1787. A Chamber of Attorneys was
created on 5 January 1804. In 1810, the British took possession.

The British Period (1810-1968)

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By virtue of Article 8 of the 1810 Treaty of Capitulation, the inhabitants

were allowed to preserve their religion, laws and customs.

The British preserved the French tribunals, except for the pourvoi to he
Cour de Cassation which was transferred to His Majesty the King in
Council

An order in Council dated 13 April 1831 maintained the actual

constitution of the Tribunal de Premire Instance which consisted of 2
Judges: a President and a Supplant.

The Cour dAppel became the Supreme Court but soon reverted back to the
Court of Appeal.

The Land Court (Tribunal Terrier), by Ordinance No. 13 of 1832 was abolished.
An Executive Council dealt with these land disputes and later these were vested
in ordinary tribunals.

On 16 November 1831, a Code dInstruction Criminelle, largely inspired from the

French CodedInstruction Criminelle of 1808 was enacted for regulate the
investigation and prosecution of offences and the conduct of criminal trials along
the lines of the French inquisitorial system.

But in Sewnarain v Queen 1986 MR 149, this does not seem to have been
always the case as it appears that the British judges sent to the then colony in
the early years found it difficult to familiarize with such a foreign form of process.

On 15 February 1832, a Penal Code was adopted but it did not meet the
approval of the Secretary to the Colonies.

By Ordinance No. 6 of 1838, a new Penal Code drafted in French and English
was enacted, largely inspired from the French 1810 Penal Code.

The Legal Profession, Judicial System and Law-Making Process

While during the early years of British rule, there was a willingness to be guided
by French law, this was no longer the case afterwards. They wanted to anglicize
the procedure.

The Chamber of Attorneys did not agree with such anglicisation.

By an order in Council 23 February 1836, the Judges of the Court of Appeal were
vested with the power to adopt Rules of Court for the proper administration of
justice.

On 12 August 1837, the first Rules of Court were promulgated.

The Rules of Court repealed various provisions of the Code de Procdure Civile
and had as consequence the introduction of English rules of civil procedure.

The Chamber of Attorneys was abolished and the restriction on the number of
practicing barristers and attorneys removed.
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During the first thirty years of British colonial rule, all Acts, Bills, Notices were
written in both French and English. But by Order in Council 25 February 1841,
all laws should be published in English only.

But another order dated 25 January 1962, authorized the Mauritian legislature to
legislate in French language. With regard to amendment to Codes which were
drafted in French or in English and French.

The Order in Council (25 Jan. 1962) further provide that the courts, in the
administration and interpretation of codes drafted in English and French, would
pay regard to the French version thereof.

An order dated 13 September 1845 provided that as from 15 July 1847, all
proceedings before the Superior Courts should be conducted in English
language only.

In 1850, there were a number of changes. An order in Council 23 October 1851,

established the Supreme Court and made provision for the institution of District
Courts.

The Supreme Court replaced the Cour dAppel and the Tribunal de

Premire Instance was abolished. It was vested with all the powers, authority

and jurisdiction that were possessed by the Queens Bench of UK (see DPP v
Mootoocarpen 1988 MR 195 and Section 18C of the Courts Act).

The SC would henceforth be a Court of Equity which would exercise its equitable
jurisdiction in all cases where no legal remedy was provided by written law (S 16
of Courts Act). The SC was vested with original jurisdiction in civil and criminal
matters (Assize), with appellate jurisdiction over decision of the Judge in
Chambers, of the Bankruptcy division and Admiralty division.

In 1955, a Court of Criminal Appeal was created to hear appeals from persons
convicted before the Supreme Court. A court of Civil Appeal was created in
1963, to hear appeal from the Supreme Court (Judge sitting alone).

Through Section 25 of Ordinance No. 10 of 1850, the Court of Assizes would

operate with a jury as judges of fact and a Judge of the SC as presiding Judge.

S 132 of Ordinance No. 9 of 1850 made detailed provision for the exercise of
criminal jurisdiction in District Courts.

In 1852, a Criminal Procedure Ordinance was enacted; it repealed the Code

dInstruction Criminelle of 1831. The 1852 Ordinance lapsed and was replaced
by Ord. No. 29 of 1853.
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With respect to the legal profession, in 1957 the Mauritius Bar Association was
set up. The code of ethics of UK for Barristers was to be followed in Mauritius.

In 1861, new rules were formulated for qualifications of attorneys.

The DPPs office was established by S88 of the 1964 Mauritius (Constitution)
Order in Council.

Adoption of Laws relating to Trade, Shipping, Banking and Finance

During the British era, several provisions of the code de commerce were
repealed.

Legislation relating to trade, shipping and finance was introduced.

Legislature regulating Stock Brokers profession was implemented. Provisions

relating to Stock Exchange were repealed and a Chamber of Brokers
established.

The Merchant Shipping Ordinance No. 17 of 1855 based on the UK Merchant

Shipping Act 1854 was introduced and repealed provisions of the code de
commerce relating to commerce maritime. This Ordinance was replaced in
1910.

The Bills of Exchange Ordinance of 1914 repealing provisions of the code de

commerce dealing with Lettre de change was introduced.

Amendments to the Penal Code

The Penal Code was enacted in 1838. It was written in both English and French.
But from 1841 to 1962, amendments to the Code could only be done in English.
During that period, offences such as coining, sedition, infanticide were inspired
from UK legislation. But during the same period, some provisions of the Indian
Penal Code were borrowed, like the offence of public servant taking gratification
and reward.

A Penal Code (supplementary) Ordinance was enacted in 1870. It provided for

offenceslike obscene publications, disorderly houses and in 1965 the offence of
conspiracy was added.

Amendments to the Code Napoleon

Several amendments were made to the Code Napolon. They relate to divorce
matters (Ordinance No. 14 of 1872), to illegitimate children, to publication of
weddings, to the various rgimes of communauts and separation de
biens( 1949).

Articles 1780 and 1781 of the Code were made to co exist with labour legislation.
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Concepts such as abandon du domicile conjugal were compared to desertion.

French and English grounds were combined in divorce cases (sodomy,

desertion, bestiality with adultre, svices, injures graves).

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A DISTINCT CORPUS OF MAURITIAN LAW

At first, in R v LEtendry 1953 MR 15, the Supreme Court reasserted that when
our law is borrowed from French law, we should resort for guidance as to its
interpretation to French case law.

However, in Pierrot v De Baize 1880 MR 158, our SC observed that they would
decline to follow French Courts when our Ordinance is different from French Law.
Similarly in Mangroo v Dahal 1937 MR 43, our SC refused to follow larrt
Jandheur of France.

In fact, in R v Shummoogum 1977 MRI, it is to effect that when we borrow a

piece of legislation from a foreign country, it ceases to be French or English law
and becomes Mauritian law.

This is the very root and fundamental tenet of our law.

Moreover, Mauritian law has consolidated both French and English law.

Family Law, Droit de Proprit, larceny, forgery, embezzlement (abus de

confiance), swindling (escroquerie) are all of French Law.

The Code de

Commerce (Law relating to commerants, societies) are of French inspiration.

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Law of Evidence, trusts (Trusts Act 1989), Company Law, Criminal Procedure are
of English inspiration. The offence of conspiracy is English. The law of
contempt is purely English.

Distinct Mauritian Law:

There are several concepts which are unique to Mauritius either by combining
French and UK Law:
I.

The law of defamation (see Forget v La Presse Mauricienne 1958 MR

248). Here the SC observed that actions for libel are actions in tort known
in French law as dlits or quasi dlits governed by Article 1382 of the Code

II.

Napolon.
The provisions relating to louage des choses of French inspiration are
made to apply to a lease governed by the Landlord and Tenant (Control)

III.

Act of English inspiration.

The rules of proof regarding contracts see the case of Sewnarain v
Queen 1986 MR 149, where in a case of embezzlement, it was held that
civil rules of proof cannot apply to criminal cases.

Similarly in Jaymangal v R 1968 MR 66, there was no need of a mise en

demeure in criminal cases.
IV.

The concept of suret fixe and suret flottante guaranteed by art 2202-12
to 2203-7 of ccm is typical of Mauritius.

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V.

The past Religious marriages; (see Nayeck v Nayeck 1987 SCJ 167) law
relating to lgitimation par adoption is typical of Mauritius. See Art 370 of
ccm (see case of Luckeenarain Boolauck 1990 MR 349 where an
adulterous child can be legitimated by his adoption by the mothers
spouse if his filiation is established with regard to the mother alone.

VI.

The law relating to Judicial Review though of English inspiration has

developed Mauritian flavor. See the case of Vallet v Ramgoolam 1973 MR
29 where the Supreme Court considered that it should and will, as far as
possible, follow the English principles applicable in matters of JR, but that
having regard to its special powers and duties under the Constitution, it
may find it necessary to evolve principles of its own, in certain
circumstances, which may not always accord with those applicable in UK.
See equally Berenger v Goburdhun 1985 MR 209, where SC held that it
would not blindly follow English Rules.

VII.

In Mauritius, we have Public Officers Protection Act (POPA) applying to

government workers. See the case of Jaggaseeah v Aubeeluck 1982 MR
28 with regard to faute de service and faute personnelle. Ramchurn v
Lamour 1989 MR 253

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Our Labour Law (see case of Lagesse v Marie Hussonia 1984 MR 74

which make a difference between contract for services and contract of
service) also compare French and UK Law.

So we can see from the above, that Mauritius has developed a distinct
corpus of Mauritian Law but has also consolidated both French and UK
law.

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