French and English legal cultures
meet - aspects of recent Mauritian
legislation
AHAngelo*
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).
Senior Lecturer in LalV
Victoria University of Wellington
The fascination of the Mauritian legal system lies in its mixed cultural
heritage. A French colony till 1810 and a British possession till 1968,
Mauritius has a pre-Napoleonic French Penal Code, the bulk of its civil law
in the Code Napoleon, the basis of its commercial life in the Code de Commerce of 1809, and a significant portion of its civil procedural rules stilI in
the Code de Procedure Civil of 1808. Alongside this is a public law structure
in the Common law mould, and company, banking, and other specific
commercial law topics dealt with in statutes which follow the corresponding
English laws.!
Reform within the system was rarely radical and when it took place
was usually made on a narrow base. If, for instance, a rule found in a French
based law was to be revised, the revision proceeded at the level of that
French law without cross-reference to the system as a whole. Over the years
this practice, logical as it may be in one sense, led to contradictory rules
existing within the system - one rule might have developed on the French
base while a conflicting rule existed in the English influenced materials.
The accession of Mauritius to independence in 1968 started the Mauritian legislator on a programme of reform 2 which calls for an examination
of the interrelation between the principles inherited from the English and
French legal cultures and the resolution of any conflicts between these
principles found in the Mauritian system. It is the purpose of this note to
comment briefly on some points of cross-cultural legal interest brought to
light in legislation promulgated as part of the current law reform programme.
*BA LLB, LLM.
lAdd to this a basic taxing law on registration duty, the Arrete de 16 Frimaite An Xl!,
a profession made up half of barristers trained in the English Inns of Court, and half of
solicitors and notaries trained locally in the civil law, and something of the originality of
the inter-operation of two legal cultures on Mauritius can be appreciated.
"This was in some respects a constitutional necessity given the pre-1968 state of law.
On the other hand, the program was fostered by a feeling of national pride in the
development of local institutions somewhat neglected by the colonial administrators.
Reforming legislation of the period 1968-1971 is largely that required by Constitution.
From 1972 the statute book e'Vidences reforms of a more general nature.
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).
Aspects of recmt A[allritian legislation
373
Contract of service or I01lage des services
In the field of labour law the legal relationship between employer and
employee had, till 1975, long been regulated by statutory dispositions on a
variety of specific topics just as in France and England. The principal statute
was the Employment and Labour Ordinance, promulgated in 1938, prior
to which there had been a consolid;)ting statute called the Labour Ordinance
of 1878. These two basic laws were simi lar in purport and sufficiently lengthy
to provide something of a code of the local labour law. Their inspiration
was English and they had their raison d'etre in the large numbers of indentured
Indian labourers who began arriving in Mauritius from about 1835, the
time of the repression of slavery. A statute of 1840 3 mentioned a "contract
of hiring and service" in article 1, but the later laws all proceeded on the
apparent basis of a contract of service being a hiring of the person not of
the services. Existing side by side with these laws are articles 1780 and 1781
of the Civil Code. 4 The French law specifically treated a work contract as a
hiring of services as opposed to the hiring of things. The French provisions
were in the Roman tradition 5 and provided an approach to employment
contracts conceptually different from that of English law. The Mauritian
statutes of 1878 and 1938 neither mentioned the conceptual problem nor
referred to the French based laws, except to specifically incorporate the
privilege for the payment of wages found in article 2101 of the Civil Code.
When the 1975 Labour Act was drafted the difference of approach
between the Common law, the Civil Code, and the English based statutory
law was brought to light and discussed. It was found that the practical
consequences flowing from the English and French categorisation of a work
contract are not great. Nevertheless, steps were taken which to some extent
integrated the divergent lines of thought. Article 1780 of the Civil Code was
amended 6 to read "Contracts for the hire of employees are regulated by the
J >abour Act 1975", and article 1781 was repealed. Therefore, while formally7
treated in the Civil Code as a contract of hire, the work contract is by the
new article 1780, and by the resultant deletion of mention of "hiring of
services", in practice totally regulated by the 1975 Act which proceeds on
rather different bases from those of the Civil Code of 1804.
"No 5 of 1840: An Ordinance for the purpose of ensuring the reimbursement of the
sums retained from the wages of Indian servants and labourers, as also the amount of
their return passage to India and for fixing and determining the privilege in regard
thereto.
4The Code Napoleon waS originally promulgated on Mauritius (lIe de France) by
Arrete du 1 Brumaire An XIV (23 October 1805).
Article 1780 - On ne peut engager ses services qu'a temps, ou pour une entreprisc
determinee.
Article 1781 - Le maitre cst cru sur son affirmation:
Pour la quotite des gages;
Pour Ie paiement du salaite de l'annee echue;
Et pour les acomptes donnees pour l'annee courante.
"Cf Locatio (ol1dllctio operaYllm, Institllles, Book Ill, Title XXIV,
·Section 59 (1)(a). The official text of article 1780 is now "Les contracts de louage des
gens de travail qui s'engagent au service de quelqu'un seront regis par Ie Labour Act
1975" - which is, of course, largely a repetition of the wording of article 1779 all.
'Ie Book III, Title VIII, Du contrat de louage, chapter III.
374
IX CILSA 1976
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).
Nil] lie petit etre cOllimint de ceder sa propriete
In its labour legislation Mauritius has proceeded along the general lines
followed by France and England, but in so doing it hus encountered a conceptual difference which neither system had known but which was inherited
from them. A similar conflict arose in the field of constitutional law. The
rules relating to the taking of property for public or other purposes provide
a good example. In articles 545 and 682-685 8 the Civil Code provided a
balance between the protection of private rights from State interference and
basic social principles relating to land use. Subsequently a number of competing statutory provisions 9 were enacted along English lines which effectively nullified the statement of principle in article 545. Government will, rather
than protection of property,. became the guiding light. In the Land Acquisition Ordinance 1952, the application of article 545 of the Civil Code was
specifically excluded, though it was not abrogated.
Such was the position until 1968 when the Constitution was promulgated. The Constitution was drafted by English lawyers. It made little
concession to the French based civil law system of Mauritius but did provide
a chapter of entrenched rights. 10 Among these rights is on ell providing for
the protection of property from arbitrary expropriation, and a set of criteria
and procedures to be applied where compulsory acquisition of property is
contemplated. These criteria and procedures, while they resembled the
French notions embodied in the Civil Code rather more than the Common
law principles, did not in fact correspond to the existing law in force in
Mauritius, whatever its source. By section 5(1) of the Independence Order
of 1968 it was provided that existing laws in conflict with the Constitution
were to "be construed with such modifications, adaptations, qualifications,
and exceptions as necessary to bring them into conformity with the Constitution". In this somewhat confusing situation the needs of an expanding
Government development programme made the formulation of clear new
roles on the compulsory acquisition of land a matter of urgency. The answer
to these needs came in the form of the Land Acquisition Act 1973. In this
Act the post-Civil Code statutory provisions, which were neatly all unconstitutional, were abrogated as were articles 545, and 682-685 of the Civil
Code.
The interest of the repeals lies in the fate of the Civil Code rules. In
inspiration they were at one with the Constitution and yet, at the same time
conflicted with it. Article 545 of the Code stated that "no one can be compulsorily deprived of his property except for a public purpose and subject to
the prior payment of fair compensation". The Constitution on the other hand
states l l as a basic principle that(1) No property of any description shall be compulsorily taken possession of,
and no interest in or right over property of any description shall be com"Article 545 - "Nul ne peut etre contraint de ceder sa proprit!te, si ce n'est pour cause
d'utiIite publique, et moyennant une juste et pr<!alable indemnite". Articles 682-685
provide the compulsory grant of a right of way as access for the owner of enclaved land.
BEg Land Acquisition by Government (Dependencies) Ordinance, (1886).
lOChapter II.
llSection 8 of the Constitution.
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Aspects oj recm! Mauritian JeJ'.,is/afioll
375
pulsorlly acquired, except where the following conditions are satisfied,
that is to say(a) the taking of possession or acquisition is necessary or expedient in the
interests of defence, public safety, public order, public morality, pub lic
health, town and country planning or the development or utilisation
of any property in such a manner as to promote the public benefit; and
(b) there is reasonable justification for the causing of any hardship that
may result to any person having an interest in or right over the
property; and
(c) provision is made by a law applicable to that taking of possession or
acquisition(i) for the prompt payment of adequate compensation; and
(ii) securing to any person having an interest in or right over the
property a right of access to the Supreme Court, whether direct
or on appeal from any other authority, for the determination of
his interest or right, the legality of the taking of possession or
acquisition of the property, interest or right, and the amount of
any compensation to which he is entitled, and for the purpose of
obtaining prompt payment of that compensation.
By comparison with the Civil Code this section on the one hand provides
more limited grounds for acquisition, but on the other a possibly less favourable system of compensation. Article 545 thus fell not for reasons of principle, but because of the manner in which the principle was formulated.
Articles 682-685 of the Code clearly had to be abrogated for simihu
reasons, though their purport was apparently within the intention of
s 8(1)(a) of the Constitution. The result is therefore that the substance of
the Code provisions was retained, incorporated in the Land Acquisition Act
1973,12 and thus subjected to the procedural and other requirements of s 8
of the Constitution. The nett result is that all matters relating to the compulsory acquisition of land are channelled to the Minister with responsibility
for lands. A person whose property is landlocked13 and who would in the
past have acquired a right of way under articles 682-685 of the Civil Code,
must now request the Minister to compulsorily acquire the land on his behalf. On being satisfied that it is neither possible nor expedient to acquire the
right of way by private agreement and that the conditions of section 8(1)(a)
and (b) of the Constitution have been fulfilled, the Minister will proceed
to acquire the right for the enclave. The result will be the same as that achieved
under the former Code provisions, assuming always that the Supreme
Court will regard such taking of property as being "necessary or expedient
in the interests of ... the development or utilisation of any property in such
a manner as to promote the public benefit", and that it provides a reasonable
justification for any hardship caused to the dispossessed owner.l 4 It is submitted that there could be little doubt about this, particularly on an island
of approximately 750 square miles and 900 000 inhabitants.
l2Section 5.
13The enclave.
HSection 8 of the Constitution.
376
IX CILSA 1976
CalCIIlalion oj age
Section 36(1) of the Interpretation and General Clauses Act 1974 relates
to the method of calculating age. 15 It is in fact a statutory formulation of the
French common law on the matter. Given that the Mauritian common law
can on this point be said to be the same as the French, the need for the rule's
promulgation in legislative form may be questioned. The difficulty lay in
the interpretation of age requirements in rules which were clearly of English
origin. If, to take an example in the field of education, a competitive scholarship is provided for students of a certain age and that provision occurs in
English patterned legislation, what is the eligibility of a candidate whose
birthday falls on the relevant day? In terms of the French rule his eligibility
may turn on a consideratipn of the precise hour of his birth, if the acte of
birth records the hour, but otherwise the candidate is ineligible as he would
only acquire the stated age at the end of the day. On the other hand, in terms
of the English rule he has, regardless of the precise hour of his birth, acquired the age at the beginning of the day specified. Hence the need for
legislative intervention at a level where the applicabilit y of the French based
rule as a general principle is put beyond doubt.
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).
La loi lie dispose qlle pour l'al)enir
The Revision of Laws Act 1974 also resolved a number of doubts and
avoided possible rule conflicts of a cross-cultural nature. A rather different
technique for resolving the difficulties was used in this instance. Section 7 of
the Act repeals a number of enactments viewed as an impediment to the
general law revision work. Among these are twenty-seven articles of the
Civil Code l6 . Some of the articles were repealed simply for reasons of
obsolescence,17 others were repealed formally to follow through implied
repeals made by subsequent English language statutes in pari materia,IS
while still others were repealed for clear constitutional reasons. 19 Of particular interest from the comparative law point of view is the repeal of article 2
of the Civil Code. 20 Article 2 provided that "Legislation provides only for the
future, it has no retrospective effect".21 Placed beside and superior to this
article were from 1968 22 both section 8 23 and section 46(4) of the Constitution. This latter section states that " . . . Parliament . . . may make laws
with retrospective effect." In terms of government and administration from
the English standpoint these provisions flatly contradict one another on a
15S 36(1) - For the purpose of calculating years of age, a new age shall be deemed to be
attained(a) where the time of birth is known, at that time;
(b) in every other case, at midnight, on each anniversary of the date of birth.
16Articles 2, 8, 9, 10, 12, 13, 17, 18, 19, 20, 21,193.542,812,813,814.828.837,1004,
1005,1006,1008,1011, 1014, 1016, 1712 and 2210.
1? E,I!, articles 542 and 1712.
IREg articles 812-814. Cf Curatelle Act, 1973.
IOEg articles 8-21. Cf chapters II and III of the Constitution.
2·Similar arguments might be said to arise in respect of articles 4 and 5 of tbe Civil Code.
""La loi ne dispose que pour I'avenir; elle n'a point d'cffet r<"troactif."
22In terms of Englisb constitutional law practice this was probably also the pre-1968
position.
"Discussed earlier in tbis survey in connection with the Land Acquistion Act 1973.
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).
Aspects of reCe11t Alallritial1 legislation
377
literal level. On a conceptual level, however, the opposite may be the case.
Each rule in its own historical and legal context is an acknowledgment of the
supremacy of Parliament and bears a direct relationship to rules for the protection of basic human rights. Each in its own cultural milieu achieves
similar results, but together in one system the rules present antipathetic
views of the role of and relationships between the legislature and the judiciary. Section 2 of the Constitution enacts that the "Constitution is the
supreme law of Mauritius and ... any other law ... inconsistent with lit],
... shall, to the extent of the inconsistency, be void". Faced with this issue
of principle concerning a concept basic to the system, the Mauritian legislator
has acted to provide the law with a single undisputed conceptual framework
within which to operate.
Land and the aliCl1 spotlse - the tellder trap
One further recent statute of interest to comparatists, and one which
deserves brief comment, is the Property Restriction Act 1975. This Act had
its origins in the Holding of Lands (Restriction) Act 1970 24 whose central
idea was expressed in section 3: "Subject to the provisions of this Act, it
shall not be lawful for any non-citizen to purchase or otherwise hold any
immovable property within Mauritius". This rule was backed by appropriate
procedures and sanctions and though the Act was amended in 1972 and
1973,25 section 3 remained unchanged till the passing of the consolidating
Act in 1975. The difficulty with the 1970 rule, and a prime reason for the
new statute in 1975, was that the statute had been drafted essentially along
Common law lines, and probably following the example of other Commonwealth countries, and so had failed to take account of the matrimonial
property rules of the Civil Code. The strict enforcement of the law between
1970 and 1975 could therefore have resulted in a significant number of unsuspecting citizens who happened to be married to non-citizens 26 being
deprived of their homes. The 1975 Act has regularised this situation and
makes specific provision in section 3(3)(b)(ii) for the effects of marriage and
the operation of the rules of the regime de /a COmJJ1tlllallte. 27
"Cf for historical purposes, the Order in Council of 15 January 1842.
"'Act 32 of 1972, and Act 8 of1973.
2"A pattern particularly common among members of the professions on Mauritius.
"'This is the statutory regime, cf articles 1400-1496 of the Civil Code.