Table of Contents

Unit 1: Introduction to Law

Unit 2: Hierarchy of Courts

Unit 3: Droit des Contrats

Unit 4: Company Law

Unit 5: Information and Communication Technology Law

Unit 6: Intellectual Property Law

Unit 7: Statutory Interpretation

1
 Unit 1 - Introduction to law

Unit Structure

Unit 1.1: Meaning of Law

Unit 1.2: Sources of Law

Unit 1.3: Separation of Powers

Unit 1.4: Law making process

Unit 1.5: Private law and public law

Unit 1.6: Civil law and criminal law

Unit 1.7: Activities

Unit 1.8: Suggested readings

Unit 1.0: Overview

This unit introduces the concept of law and outlines the functions and importance of law.

Unit 1.0.1: Learning objectives.

By the end of this unit you should be able to do the following:

 Understand the concept of rule of law

 Know the sources of Law
 Explain how law is made, implemented and executed
 Discuss the functions and importance of law
 Differentiate between civil and criminal law

2
Unit 1.0.2: Warm up activity
Jot down your opinion regarding the following:
(1) Peter has been speeding up to 140km/hr at Trianon, the speed zone of 80km/hr.
(2) Happy Singh bribes a doctor in hospital to have his surgery done outside the waiting list.
(3) Jerry and Titeuf, in a bar on a Friday night begin to argue. Jerry punches Titeuf and gives
him a black eye.
(4) Bell agrees to paint Jackson's house for Rs 25,000. Bell finishes the job but Jackson
refuses to pay more than Rs 20,000.
(5) Mr Bestguard is a watchman working on a night shift at Textiles Ltd. Around 01:00am
he took away some branded Tshirts.
(6) Tony murdered Bella following a severe conjugal dispute.

Unit 1.1: Meaning of law

Oxford dictionary:

The system of rules which a particular country or community recognizes as regulating the actions
of its members and which it may enforce by the imposition of penalties

Oxford law dictionary:

A body of rules of conduct of binding legal force and effect, prescribed, recognized, and
enforced by controlling authority.

The system of rules which a particular country or community recognises as regulating the actions
of its members and which it may enforce by the imposition of penalties.

It is possible to describe law as the body of official rules and regulations, generally found in
constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to
control the behaviour of its members, so Law is a formal mechanism of social control.

Legal systems are particular ways of establishing and maintaining social order.

1.1.1 Nature of Law

Law can be categorized as normative, that is, obligatory on human conduct. It is implemented
within appropriate institutional framework. Law is equally coercive by nature, that is non
compliance leads to sanction.

3
1.1.2 Purpose of Law

Democracies/States/Governments make, implement, and execute laws for the protection of

various elements on their territory and even beyond:

Purpose of Law Areas of Law

o Preservation of order
o Platform for human co-operation
o Medium of dispute resolution
o Tool of domination
o Mechanism for social engineering
o Safeguard of morality
o Regulation of governmental powers
o Protection of individual freedom
o Attainment of justice
o public order law, criminal law
o law of contract
o law of tort
o counter-revolutionary offences
o land registration
o criminalising underage sexual relations
constitutional law, administrative law
o bill of rights, anti-discrimination
legislation
o rules of natural justice, bill of rights,
social security law

Unit 1.2: Sources of law

4
1.2.1 Primary and secondary sources of law

Primary sources Secondary sources

o Constitution o Customs

o Acts of Parliament o Traditions

o Jurisprudence o Treaties

o Doctrine o By laws

o Usages

1.2.2 Constitution:

Section 2 of the Mauritian Constitution 1968 - Constitution is supreme law:

This Constitution is the supreme law of Mauritius and if any other law is inconsistent with this
Constitution, that other law shall, to the extent of the inconsistency, be void.

A constitution is often referred to a document having a special sanctity which outlines the legal
framework and the principal functions of the organs of the government within the State, and
declares the principles by which those organs must operate.

The organs of the Government are:

1. Executive
2. Legislative
3. Judicature

The constitution in its wider sense refers to the whole system of Government of a country, the
collection of rules which establish and regulate or govern the Government.

In Mauritius, we received our Constitution following the independence of the country in 1968.

The Constitution is a comprehensive document which attempts to regroup all the legal provisions
which will govern the relationship among the various organs of the Government, circumscribe

5
the powers of the various organizations and distribute the powers among them and it also
regulates the relationship among them and the individuals and it also lays down the fundamental
rights of the citizens.

Legislation

A definition for legislation would be the laying down of rules by a law-making authority

For example,Acts of Parliament.

An Act of Parliament is a central source of the Mauritian law. The processing of legislation is
done through one of the sovereign organs of the State – the Parliament. Section 45 (1) of the
Mauritian Constitution stipulates; “subject to this constitution, parliament may make laws for
the peace, order and good government of Mauritius”. Moreover, from Section 46(1); “The
power of parliament to make laws shall be exercisable by bills passed by the Authority and
assented by the President”. Prior to becoming an Act of Parliament, it is known as Bill of
Parliament. Following National Assembly debates and the presidential assent, a Bill of
Parliament becomes an Act. This Act is enforced following its publication in the Government
Gazette.

6
Delegated Legislation/ Secondary Legislation

Section 45 of the Mauritian Constitution,

Power to make laws

(1) Subject to this Constitution, Parliament may make laws for the peace, order and good
government of Mauritius.

(2) Without prejudice to subsection (1), Parliament may by law determine the privileges,
immunities and powers of the Assembly and its members.

The Parliament enjoys almost a monopoly over the legislating process. However, a number of
legislations, known as Enabling Acts or Parent Acts, allow subsidiary organizations
(Municipalities or parastatal bodies) to pass delegated legislations. For instance, the Local
Government Act enables Municipalities and District Councils to pass delegated legislations (for
e.g. Municipal Market Regulation.)

Ministers too can make regulations under various enabling acts. Thus the Minister of
Environment has made a number of regulations over the years to regulate the environment; for
e.g. Environment Protection Act or Business Facilitation Act.As such, there is an express as well
as implicit delegation of power to various subsidiary organizations. However, Section 122
Mauritian Constitution: Parliamentary control over certain subordinate legislation enables
Parliament to exercise some form of control over delegated legislation.

Common Law

The Common law is a body of law based on custom and general principles embodied in case law
which serves as precedent and is applied to situations not covered by statute.  In other words,
common law includes those principles, usages and rules of action applicable to the government
and security of person and property, which do not rest for their authority upon any express and
positive declaration of the will of the legislature. The Common law applies only to civil cases.
Common law refers to rules derived from decisions of superior courts and includes the rule of
precedents and customs. For example, in Mauritius, the Law of Evidence is based on Common
Law.

7
Equity

Equitywas a means of providing new remedies – in the forms of specific performance,

injunction, rescission and rectification.

Equity is discretionary. Equity is primarily interested in the conduct of the parties- the plaintiff
as well as the defendant.

A remedy would be refused if conduct is inequitable/if there has been a delay in seeking relief
and if the claim would produce unfair results.

Damages are available as of right while equitable remedies are granted or withheld on the
judicial exercise of discretion.

In Mauritius, S16 of the Courts Act provides that the Supreme Court shall be a court of equity
vested with power, authority and jusrisdiction to administer justice and to do all acts for the due
execution of such equitable jusrisdiction, in all cases where no legal remedy is provided by an
enactment.

Judicial precedent

A judicial precedent which must be followed in a case is also known as blinding precedent,
alternately metaphorically precedent, mandatory or binding authority. And, a judicial precedent
that is not mandatory but which is useful or relevant is known as persuasive precedent or an
advisory precedent. According to the doctrine of stare decisis, a lower court must honor findings
of law made by a higher court that is within the appeals path of cases the court hears.

A common law system, which is based on tradition, judge made precedent and which the court
assign a preeminent (greatest / must important) position to exist case law to guide dispute
resolution. A judge is bound by decisions of courts of superior jurisdiction. In practice, this
means that inferior courts are bound to apply the legal principles set down by superior court in
earlier cases. This provides consistency and predictability in the law.

8
Stare Decisis:

Stare decisis is a common law tradition that literally means ‘to stand by decisions’. This means
that a court will look to previousdecisions when faced with a new case before it. It also refers to
the principle of binding precedent by virtue of court hierarchy. According to this principle,
previous decisions ofsuperior (higher) courts are binding on future cases being decided by lower
courts.

The decision or judgment of a judge falls into two parts – the Ratio decidendi and Obiter dictum.

The decision or judgment of a judge may fall into two parts: the ratio decidendi(reason for the
decision) and orbiter dictum (something said by the way).

Ratio Decidendi:

The ratio decidendi of a case is the principle of law in which a decision is based when a judge
delivers judgment in a case, he outlines the facts which he finds have been proved on the
evidence. Then he applies law to those facts and arrives at a decision, for which he gives the
reason (ratio decidendi). The binding part of a judgment is the ratio decidendi.

Orbiter Dictum:

The judge may go on to speculate about what his decision would or might have been if the facts
of the case had been different. This is an orbiter dictum.

Obiter dictum is not binding because it was not relevant to the matters arising in the original
case. However, it can be persuasive.

9
Consequences of cases following court

Reversing- a court higher up in the hierarchy overturns the decision of a lower court on appeal in
the same case

Overruling- a principle laid down by a lower court is overturned by a higher court in a different
later case

Appeal

10
Separation of powers

Chapter V Legislative
Chapter VI Executive Constitution
Chapter VII Judicature

This is a doctrine closely associated with the theory of John Locke and Montesquieu who
observed that the powers of a Government were of three kinds:

(i) The Legislature

(ii) The Executive
(iii) The Judiciary

11
Legislature:

Its main function involves the enactment of general rules determining the structure and the
powers of public authorities and regulating the conduct of citizens and private organisation

Executive

It comprises all officials and public authority, by which, functions of government is exercised,
including the civil service and the armed forces. The general direction of policy includes the
initiation of legislation, the maintenance of order, the promotion of social and economic welfare
administration of public services and the conduct of the external relations of the State.

Judiciary

It is the branch of the State which adjudicates upon conflicts between State institutions, between
State and individual. The judiciary also must be independent of both Parliament and executive.
It is the feature of judicial independence which is of prime importance both in relations to
government according to law and in the protection of liberty of the citizen against the executive.

Example of application of separation of powers

Peter has been speeding up to 140km/hr at Trianon, the speed zone of 80km/hr.

Make - Legislative Implement – executive Interpret - judiciary

Legal provision: Police will identify offence Case sent to court for judgment:
Speed zone drive 80km/hr 140km/hr = offence Fine the offence

12
Separation of power

Lord Acton:

Power corrupts absolute power corrupts absolutely

The separation of powers is important because:

(i) The same person should not belong to more than one of these powers of the State.
(ii) The legislative power must not interfere with decisions of the judges of the supreme
court
(iii) Judges must interpret law and shall not interfere with the law decision making
process, which is reserved for members of parliament

13
How an Act is enacted?

Eight stages:

1. Preliminary stage
2. First reading
3. Second reading
4. Committee stage
5. Third reading
6. Voting (majority of ¾ or 75%)
7. Assent of President
8. Gazetting

The Law Making Process

S45 (1) of the Constitution states: ‘Subject to this Constitution, Parliament may make laws for
the peace, order and good government of Mauritius’

The Constitutional Doctrine of Separation of powers is satisfied by the legislative process.

S 46 (1) states ‘The power of the Parliament to make laws shall be exercisable by bills passed by
the National Assembly and assented to by the President’

The responsibility of initiating the vast majority of modern legislation rests with the government.

Legal language is used because of the need to cover all possible matters and prevent loopholes.

S46 (2) b of the constitution states that the president cannot withhold assent in the case of a bill
amending the constitution which has gone through the process set out in section 47 of the
Constitution, or regarding a bill falling under section 54 of the Constitution.

The president may withhold assent if in his own deliberate judgment, thinks that a bill should be
reconsidered by the National Assembly. The time delay for him to do this is 21 days from the
date of submission of the bill for assent. The President may return the bill to the National
Assembly urging them to look at it again, and or propose any amendments. S 46 (2) c & d of the
Constitution. When the bill goes back to the President, he has to signify his assent.

14
A bill goes through several stages before being adopted by the National Assembly:

Different stages:

First reading –A motion is made for the bill to be read. The Title of the Bill is read by the Clerk
of the National Assembly.

Second Reading – A motion if made for the bill to be read a second time. This is when the bill
gets debated. If the opposition has any amendment to propose at the committee, it may give due
notice of it at the time of the second reading. Vote taken at the end of the debate

Committee Scrutiny – The Committee consists of the whole house. Every clause is looked at as
well as any amendments proposed by the opposition.

Report- After the scrutiny, the bill is reported to the house. At this stage there is no debate if the
bill was passed through a committee of the whole house.

Third Reading – This is the final stage- the bill should be in its final format – it has been
reviewed and amendments have been made. Any discussion will relate exclusively to the
contents of the bill.

15
The Voting Process

Ordinary bills:

53. Voting

(1)  Except as otherwise provided in this Constitution, all questions proposed for decision in the
Assembly shall be determined by a majority of the votes of the members present and voting; and
a member of the Assembly shall not be precluded from so voting by reason only that he holds the
office of Speaker or Deputy Speaker or is presiding in the Assembly.

(2) Where, upon any question before the Assembly that falls to be determined by a majority of
the members present and voting, the votes cast are equally divided, the Speaker, whether he is a
member of the Assembly or not, or any other person presiding, shall have and shall exercise a
casting vote.

16
 LAW
Public law Private law or civil law
Relationship between the state and its citizens Rights and duties of individuals towards each
other
Constitutional Contract
Administrative Tort
Criminal Property
Trusts
Family

17
 Civil law
Definition Civil law deals with the
disputes between individuals,
organizations, or between the
two, in which compensation is
awarded to the victim.
Purpose of action To deal with the disputes
between individuals,
organizations, or between the
two, in which compensation
(remedy) is awarded to the
victim.
The parties A Plaintiff sues a defendant
Aggrieved person is termed as
“Plaintiff”, ie, a private party
Standard of proof "Preponderance of evidence."
Plaintiff must produce
evidence beyond the balance
of probabilities.
Burden of proof Plaintiff must give proof
however, the burden may shift
to the defendant in situations
of Res Ipsa Loquitur (The
thing speaks for itself).
Decision Defendant can be found liable
or not liable, the judge decides
this.
Sanctions/Remedies Compensation (usually
financial) for injuries or
damages, or an injunction in
nuisance.
Examples Contract, tort, trusts, property
law, landlord/tenant disputes,
divorce proceedings, child
custody proceedings, property
disputes, personal injury
18
Criminal law
Criminal law is the body of
law that deals with crime and
the legal punishment of
criminal offenses.
(Offences against the state)
To maintain order and the
stability of the state and
society by punishing offenders
and deterring them and others
from offending.
Prosecutor prosecutes
defendant, ie, government
files case against presumed
offender
"Beyond a reasonable doubt":
"Innocent until proven guilty":
The prosecution must prove
defendant guilty.
Defendant is convicted if
guilty and acquitted if not
guilty, the jury decide this.
A guilty defendant is subject
to Custodial (imprisonment)
or Non-custodial punishment
(fines or community service).
In exceptional cases, the death
penalty.
Theft, assault, robbery,
trafficking in controlled
substances, murder, driving
with excess alcohol, unfair
commercial practices
End of unit activity

1. What is law and why is it necessary?

2. Classify the following into civil and criminal areas:

a. Driving with excess alcohol
b. Theft
c. Murder
d. Unfair commercial practice
e. Receiving payment for service but no service delivered

3. Explain the difference between :

a. Private law and public law
b. Primary law and secondary law

4. How a Bill becomes law?

19
 REFERENCES

1. Mauritian Constitution 1968

2. Constitutional and Administrative law manual, CPDL
3. Supreme Court
www1.gov.mu/scourt
4. National Assembly
http://mauritiusassembly.gov.mu

20