Virahsawmy Chambers

Virahsawmy Chambers

Office of Melissa Virahsawmy, barrister We offer practical and cost-effective solutions with an effective turn around for all your legal problems in Mauritius.

ft.com

India: Narendra Modi’s bonfire of the rupees

Despite the difficulties, many economists, and even ordinary Indians, believe Mr Modi’s shock therapy will yield long-term benefits. Higher levels of bank deposits can facilitate lower interest rates and greater lending, while traditional businesses will be under pressure to find alternatives to cash and come under the tax net. “There is an economic argument that if you get black money into the formal economy it does improve public finances,” says Rajeev Malik, senior economist at CLSA.

No one knows how much cancelled cash will return to the banks, and how much will be purged from the system. Cynics claim many working-class Indians who have been queueing at banks to exchange up to Rs4,500 are “mules”, being paid by the wealthy to launder their money. Others with excess, illicit cash are looking to friends and family to help get their money into the banking system — and offering a handsome price. Experts say the note ban will do little to stop new black money.

ft.com A debate rages over the effect of the prime minister’s crackdown on ‘black’ money

virahsawmy.com

www.virahsawmy.com

A reading of the law makes it clear that the legislator in his drafting sought to include de facto and shadow directors in the definition of directors. The Act therefore provides for situation where there is no formal appointment of an individual as a director but such a person acts as a director. Consequently, such a person would be subject to the same responsibilities that apply to properly and formally appointed directors.

http://www.virahsawmy.com/viewarticles.aspx?aid=32

virahsawmy.com Generally, a person named as director in the application for registration of a company or subsequently appointed by a shareholders’ ordinary resolution is a director of the company.

bizweek.mu

Mesdames et Messieurs les DPPs

DPP. Un sigle qui a été dans l’actualité ces dernières semaines. Pour ceux qui ne le sauraient pas, ‘DPP’ signifie Directeur des Poursuites Publiques. Comment ce poste constitutionnel a-t-il été créé ? Qui a été le premier DPP ? Qui sont ceux qui ont occupé ce poste ? BIZweek s’est intéressé à ces questions

bizweek.mu   DPP. Un sigle qui a été dans l’actualité ces dernières semaines. Pour ceux qui ne le sauraient pas, ‘DPP’ signifie Directeur des Poursuites Publiques. Comment ce poste constitutionnel a-t-il été créé ? Qui a été le premier DPP ? Qui sont ceux qui ont occupé ce poste ? BIZweek s’est intéressé à ces...

FSC Mauritius issues Investor Alert – Commercial Exchange Bank - Financial Services Commission

FSC INVESTOR ALERT

Warning against Commercial Exchange Bank

The Financial Services Commission, Mauritius (the “FSC Mauritius”) wishes to alert investors and the public with regards to Commercial Exchange Bank (“CEXB”) which is claiming that it
is regulated by the Mauritius Financial Supervisory Commission.

The FSC Mauritius hereby informs investors and the public that CEXB is not and has not, at any point in time, been licensed and regulated by the FSC Mauritius.

The FSC Mauritius therefore urges investors and the public to exercise caution in respect of CEXB.

Financial Services Commission, Mauritius
14 June 2016

http://www.fscmauritius.org/news-events/2016/fsc-mauritius-issues-investor-alert-%E2%80%93-commercial-exchange-bank.aspx

fscmauritius.org Global Business

[05/25/16]   EXTRACTS FROM THE JUDGMENT:

JUGNAUTH P.K. v INDEPENDENT COMMISSION AGAINST CORRUPTION & ORS 2016 SCJ 187

ON THE INTERPRETATION OF “PERSONAL INTEREST” AND THE SEPARATE INTERESTS OF A COMPANY AS OPPOSED TO ITS SHAREHOLDERS’ INTERESTS:

"We have to admit that this is where we begin to struggle with the reasoning of the learned Magistrates. The first difficulty we have is their inference that the appellant’s sister had a “direct personal interest” in “whatever decision affecting Medpoint Ltd” from the mere fact of her being a shareholder “with no less than 23% of the total shares” and a director in Medpoint Ltd. As rightly submitted by learned Queen’s Counsel for the appellant, the learned Magistrates appear to have failed to recognise that Medpoint Ltd was a separate and distinct legal entity and appear to have conflated Medpoint Ltd’s interests with those of the appellant’s sister.

What then is the nature of the interest which the legislator seeks to criminalise under section 13?

One of the conditions for an offence to exist under section 13(2) is that the decision must relate to a decision in which the relative has a personal interest. The use of the term “personal” is purposive and crucial in several respects. By adopting such a wording, it is clear that any interest would not suffice to create criminal liability for an offence under section 13(2). Quite significantly, section 13(2), as opposed to section 13(1), limits interest to “personal interest”. Had it been the intention of the legislator to encompass any other interest, direct or indirect, such words would have been expressly included and spelt out in section 13(2) as was done by the legislator when it was its intention to do so for an offence under section 13(1) of the Act.

Thus, we are of the opinion that:
(a) the wording of section 13(2) is not concerned with any remote interest and it clearly relates to such personal interest of a relative which may, accordingly, give rise to a conflictual situation confronting the public official at the time of his participation in the decision-making process;
(b) although a relative may have an interest as shareholder, he would have no “personal” interest in a decision of Government to allocate funds to a company which is, in law, a different entity."

ON THE REQUIREMENT OF MENS REA AS AN INGREDIENT OF THE OFFENCE UNDER SECTIONS 13(2) AND 13(3) OF THE POCA:

"…the more serious the offence, the greater is the weight to be effected to the presumption that mens rea is required.

“One should be slow to attribute to the legislator the intention of inflicting severe punishment and stigmatizing a person as a serious criminal unless he is proved to have acted with a guilty mind”, vide Hin Lin Yee And Another v HKSR [2010] HKCHA 11.

More recently, the Supreme Court of England and Wales reaffirmed the importance of the presumption of mens rea in R v Brown [2013] UKSC 43, [2013] 4 All ER 860, holding that the presumption should not be displaced in the absence of clear statutory language or unmistakably necessary implication. The Court emphasised that the presumption is enhanced in cases, such as this one, where the offence is “truly criminal” and carries a heavy penalty:
“The constitutional principle that mens rea is presumed to be required in order to establish criminal liability is a strong one. It is not to be displaced in the absence of clear statutory language or unmistakably necessary implication. And true it is, as the appellant has argued, that the legislative history of an enactment may not always provide the framework for deciding whether the clearly identifiable conditions in which an implication must be made are present. It is also undeniable that where the statutory offence is grave or “truly criminal” and carries a heavy penalty or a substantial social stigma, the case is enhanced against implying that mens rea of any ingredient of the offence is not needed.”

As a result, it is well settled in English law that, even where the provision which creates the offence is silent or ambiguous as to the required state of mind, the starting point for ascertaining the mental requirements for any statutory offence is to presume that it is incumbent upon the prosecution to prove the requisite mens rea in relation to each element of the offence: Sherras v De Rutzen [1895] 1 QB 918 D.C.; Brend v Wood [1946] 175 LT 306, 307; Sweet v Parsley (supra); B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428 at 460. Further, in R v K [2002] 1 AC 462 at 477, Lord Steyn pointed out that although the presumption applies in cases of ambiguity, “the applicability of the presumption is not dependent on finding an ambiguity in the text. It operates to supplement the text”.

Section 162 of the Courts Act in Mauritius provides that in the absence of any special laws in force in Mauritius, the English law of evidence shall be applicable. Indeed in Rayapoulle v R [1990 MR 286], the Supreme Court of Mauritius applied the same guiding principles laid down by Lord Scarman in Gammon (supra) which have already been reproduced earlier in this judgment. The Court went on to hold that mens rea is an essential ingredient of an offence of possession of a firearm under section 36 of the Public Order Act, even though the statutory provisions creating the offence are silent as to the requirement of mens rea.

Applying the above principles to the offence created under section 13(2) and (3) of the Prevention of Corruption Act, it is plain that there is a presumption that mens rea is an ingredient of the offence and that mens rea is required before the appellant can be convicted of such a criminal offence. The presumption is reinforced by the fact that it is an offence which is “truly criminal” in character and is categorised as a “corruption offence” (under Part II of the Act) as defined by section 2 of the Act. The seriousness of the offence is enhanced by a severe penalty of up to ten years’ penal servitude which adds to the weight to be attached to the presumption that mens rea is required for such an offence. We, therefore, hold that the presumption of law that mens rea is required before a person can be convicted of an offence under section 13(2) has neither been rebutted by any express provision in the Act nor by necessary implication."

Virahsawmy Chambers | Articles

Draft Code of Corporate Governance of Mauritius

The Draft Code of Corporate Governance which has been circulated by the National Committee of Corporate Governance for comments by stakeholders seeks to take Mauritius to a new level by introducing international best practices and thus aligning Mauritius with developed jurisdictions such as the United Kingdom by promoting a principled based approach to corporate governance rather than a rules-based approach.

The rules-based approach, which is a tick-box approach whereby the regulator would give very precise details of what an entity must or must not do in order to attain the standard of conduct required, is not being recommended by the National Committee of Corporate Governance. Instead, a principled-based approach is being encouraged so that entities would need to develop and adopt their own corporate governance processes and procedures based on the principles set out in the Code of Corporate Governance and in line with the entity’s business model and vision.

The National Committee of Corporate Governance is not the first in promoting a principled-based approach in Mauritius as the Financial Services Commission has issued its Code of Business Conduct in October 2015, which Code sets out nine Guiding Principles which all licensees are obligated to implement in their operations so as to comply with the same. In the same manner, the Draft Code of Corporate Governance puts the onus on the entities to “apply-and-explain” the principles set out in the Code. The Board of Directors of an entity has a duty to apply all the principles contained in the Code and to explain in their annual reports how these principles have been applied.

The adoption of a principled-based approach is commendable as it a flexible approach which fosters the awareness of good governance principles within an organisation and the creation of a governance culture within an organisation. As entities in Mauritius have been governed by rules for a number of years, this novel principled-based approach presents a new challenge and the hope is that entities will seek to apply above average procedures to demonstrate their compliance with the principles of the Code as opposed to the minimal acceptable practices which may be required by a rules based approach. The difficulties of a principled based approach are the lack of clarity in the application of principles to the required level, and the dangers of bland and repetitive statements in reports.

http://www.virahsawmy.com/articles.aspx

virahsawmy.com Virahsawmy Chambers

[04/12/16]   Peter Wayne Roberts found NOT GUILTY of the manslaughter of Lee-Ann Palmarosa

L'express Maurice

Peter Wayne Roberts sera-t-il reconnu coupable ou non du meurtre de Lee-Ann Palmarozza ?

The Guardian

#panamapapers

A major leak of the secret offshore arrangements of some of Vladimir Putin’s closest friends reveals how hundreds of millions of dollars are hidden around the globe in complex financial structures. A trove of leaked documents from Panamanian law firm Mossack Fonseca unveils previously untraceable transactions of some of Russia’s most powerful men.

mg.co.za

Budget 2016: New amnesty for tax dodgers with offshore assets

South Africa Tax News: VDP 2016

A new amnesty will allow tax dodgers to come off relatively lightly – if they fess up between October 2016 and March 2017.

“Time is now running out for taxpayers who still have undisclosed assets abroad,” Finance Minister Pravin Gordhan warned in his budget speech yesterday, before announcing the so-called special voluntary disclosure programme which will give non-compliant taxpayers an opportunity to voluntarily disclose offshore assets and income. It will also offer relief in light of exchange control contraventions.

http://mg.co.za/article/2016-02-25-budget-2016-new-amnesty-for-tax-dodgers

mg.co.za Non-compliant taxpayers have an opportunity to voluntarily disclose their offshore assets and income to Sars - or else face the full force of the law.

m.ewn.co.za

Tax authorities begin probes into those named in Panama Papers leak

Tax authorities in Australia and New Zealand are probing local clients of a Panama-based law firm at the centre of a massive data leak for possible tax evasion.

The leak involves more than 11.5 million documents from the files of law firm Mossack Fonseca, based in the tax haven of Panama, revealing details of hundreds of thousands of clients in multiple jurisdictions.

The documents are at the centre of an investigation published on Sunday by the International Consortium of Investigative Journalists, the German newspaper Süddeutsche Zeitung and more than 100 other news organizations around the globe. Süddeutsche Zeitung reported it received the huge cache of documents and then shared them with the other media outlets.

The leaked 'Panama Papers' cover a period over almost 40 years, from 1977 until as recently as last December, and allegedly show that some companies domiciled in tax havens were being used for suspected money laundering, arms and drug deals, and tax evasion.

http://m.ewn.co.za/2016/04/04/Tax-authorities-begin-probes-into-some-people-named-in-Panama-Papers-leak

m.ewn.co.za The leak involves more than 11.5 million documents from the files of law firm Mossack Fonseca.

[03/21/16]   Any action unanimously agreed to by all the shareholders of a private company in Mauritius will be validly authorised by the company,notwithstanding any provision in the constitution of the company.

Such actions may include:
(a) the issue of shares by the company;
(b) the making of a distribution by the company;
(c) the repurchase or redemption of shares in the company;
(d) the giving of financial assistance by a company for the purpose of, or in connection with, the purchase of shares in the company;
(e) the payment of remuneration to a director or the making of a loan to a director or the conferral of any other benefit on a director ;
(f) the making of a contract between an interested director and the company;
(g) the entry into a major transaction.

[03/18/16]   The trial against the South African citizen Peter Wayne Roberts regarding the death of Lee Ann Palmarozza found dead in a swimming pool of a villa of Anahita started on Monday 14th March 2015, and on the 17th March 2015, the pathologist Dr Sudesh Kumar Gungadin testified on the various wounds found on the deceased's body at the time he examined her in 2015. The trial continues.

[03/17/16]   It is now an offence for any person to operate or manipulate a jet ski in a navigational area for private or commercial purposes.

Tourism Authority (Prohibition of Jet Ski) Regulations 2016

[03/16/16]   DPP loses appeal case against police officers who were suspected of being involved in the death (whilst in police custody) of Rajesh Ramlogun due to inconclusive evidence - DPP v Jagdawoo & Others 2016 SCJ 100

Extract of the judgment delivered by Hon. A. Caunhye, Judge:

We feel bound however to raise some matters of grave concern which the crude facts of this case have brought to light in connection with the treatment of persons detained by the
police. Ramlogun was in good health and condition prior to his arrest and detention by the police. Although the evidence fell short of establishing, in accordance with the legal standards
of proof, the infliction of any inhuman and degrading treatment by the particular police officers who were charged with an offence under section 77 of the Criminal Code, it is beyond dispute
that Ramlogun was subjected to physical abuse and was killed whilst in police custody. Those responsible remain unpunished.

The right to life and protection from torture and any form of inhuman or degrading treatment are fundamental constitutional rights guaranteed under section 4 and section 7 of our
Constitution respectively. The peremptory nature both of the right to life and of the right to freedom from torture and other cruel, inhuman or degrading treatment is further highlighted by
the fact that these rights cannot be derogated from. In international human rights law, there can be no derogation to the protection of these rights even in the gravest of crisis situations as are laid down in Article 4(2) of the International Covenant on Civil and Political Rights, Article 27(2) of the American Convention on Human Rights and Articles 3 and 15(2) of the European
Convention on Human Rights.

The treatment of detainees who are placed in a vulnerable position is a matter of even greater concern when it comes to protection of these human rights. The detainee is virtually cut
off from the outside world and is placed in a situation of weakness and vulnerability being left to a considerable extent to the mercy of police or prison officials.

The State has positive obligations to afford security and protection of the law and human rights to all categories of its citizens. The State has a duty to secure and not to violate
the right to life and the right to protection from torture and inhuman treatment. The more so, in respect of its more vulnerable citizens.

We say so because the infliction of torture or inhuman treatment and the killing of a person in such circumstances cannot be treated with levity. Constitutional rights and criminal law provisions would remain purely theoretical and illusory unless there is in place an effective law enforcement machinery endowed with the appropriate legal and investigative mechanism
for the prevention, investigation and punishment of any such violation of human rights.

When the State kills one of its citizens in police custody, it constitutes an intolerable violation of the human rights of the individual. But when the State kills with impunity, it rocks the
very foundation upon which a democratic state rests i.e the Rule of Law.

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