PUBLIC RECORD OFFICE
Reference :-
CO. 882
6
PUBLIC RECORD OFFICE, LONDON ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
10
24 July 197
MAURITIU - DOYAL COMMISSIOs, 1982)
Sir I. V DELAFAYE
Bar That is what I wanted to know, have you a law father
that the son must not practice before his Tire was a motion in the Council of Govern- nt that it should be made an Order, but it was not acceptol, bocquse it was stated that the judge, in practice, had adopted that course
13010 As a matter of fact, in practice, you have Yes in practice, we have alopel that course > alpted that couro
13911 And so you have not found it necessary to lay down any rule-No
Moj Sr Edward O'Malley There is an objecs tion to me judge which ceurs to me now that I understated your system. It is very desirable that there should be as few unnecessary appeals to the Privy Council as possible? –Yes, of course, they are very "xpensive.
13913 And if you have one judge only, and only the mind of une colonial judge before the matter goes to the Privy Council, you may have cases sent up there on insufficient grounds, that is to say, cases which have been decided only by one julge, and that danger is avoided where you have three judges sitting together? -Y
•
13,014 (Mr. Woodcock) 1 apprehend that if you had a sangle-judge court you would have to have a local court of appeal ?--- You
18.015. I think it would be indispensable-But then you would only have two in appeal, and supposing they did not agree ?
B016 (Chairman.) But you would have the same judge again ?—You mean putting the judge in the appeal court?
13017 Yes, it is quite coramoon in other colonies. he sits with the athar judges———--
13,018 (Sir Edward O'Malley.) So it is in our own court in the Divisional Court, you have the judge trying It is useful P-It would be, the case which he has hearl of course, the most satisfactory state of affairs that could be desired to have three judges, because the general desire is that cases should be tried by three judges, in fact, they do not ask oftener for three judges, because they know it is difficult with the Constitution we have, with the work we have with the Bankruptcy Court on the one side and Chamber business on the other. to give three judges. In 1905 we had a big case before us. The Araba pretended that they were the owns of the mosque, and the other people said they were not; that the mosque belonged to the whole We community. There was a big law suit over that. wat 83 days in the year 1905; we had 83 sittings with three judges. It was very difficult to carry on the rest We found that there could of the work of the court.
not be, of course, two divisions, and when we came to the end of that case, after more than 100 sittings, we found that there were a good many cases which had been waiting for a long time, and that was not fair to I may say that there are certainly the litigants. 50 per cent. of the cases that are settled out of court. I do not say that it is not the best thing for the litigants that the cases should be settled out of court.
13,019. (Mr. Woodcock.) How do you account for that by the slackness of counsel by not getting the prosecution realy - No, it is a kind of laziness which certain time of the prevails everywhere during a year, the people are not inclined to work in the hot
Reason.
13.020. Would it commend itself to you to say, We have now adjourned this case three times; these delays really lead to injustice" P-We do that now.
13.021. And We shall hear the case the next time"-We fix it peremptorily to be heard on that day and it is either heard or settled, but it is often settled.
13.022. May I ank you, what is the longest number of days' adjournment in recent times? Would you adjourn a case that is down for hearing for another day, and adjonen again and again, any, half a dozen times t Do you know that cases have been adjourned as much as half a dozen times ?We very weldom adjourn from day to day.
13,023, No, no, to another date. I mean, do you adjourn half a dozen times?—Yes, there are cases that have been adjourned half a dozen times.
[Continued
13,024 It does not seem right, does it ?--It depends Some of those upon the nature of the case, you see. large cases, where there is a large amount at stake, and where the point appears to be one in which there is rather than the real question amour propre at stak». of money. we sometimes allow the adjournment. because, of course, by dint of intervention by counsel, and so on, and conversations, the cases are settled and we think it is better that they should be settled, because there would be enormous costs incurred, and there would have to be a number of witnesses heard in
technicul ca IPS, cases arising, for example, out of
denominational establishments.
13,025, (Sir Edward O'Malley.) May I take it that you do not see any insuperable difficulty in the way of Three judges on the contrary, you think that in a reform which might take place?-Yes, only I think it would be better to retain four judges. I think that we can work with three judges.
13,026. I understand that while you do not think u ne-judge tribunal would be satisfactory. you do not see any objection, except upon the score of pressure of business, to a three-judge tribunal? On the contrary, I would like to see my way to that system ling introduced.
13.027. Of course the appeals from the district magistrates in criminal cases or civil cases, whatever they may be, would come on, as before, before three judges 7-Yes, before three judges; now they go before two.
13,028. Do they now?—Yes.
13.029. Then there are appeals, I take it, from a single judge of the Supreme Court sitting in criminal There has been a move jurisdiction-No, not yet. made in that direction in the Council of Government. but we have not had the Ordinance passed at present.
13,080. At present the decision of the judge is given at the trial, and is final - Yes, I think it is highly desirable there should a Court of Criminal Appeal here 13,031. Constituted of three judges-Yes, con- stituted of three judges,
(Sir Edward O'Malley.) I think that covers all the ground that we were anxious to have your opiniou on. and I think you have given us a great deal of valuable BRsistance, with regard to the Registrar and Master. 1 think it is a very good plan and it is in the direction of simplicity.
13,032. (Mr. Woudcock.) We have had some com. plaints made before us in the course of our sittings about the great expense attendant on small mortgages and sales in this lsland; the necessity of going before a notary and the registration fees and all that sort of thing. What is your view about that? I am speaking of the small peasant class P-I do not think the costs are heavy. Of course the registration dues you could tiot diminish without diminishing the revenue.
13,083. I think not. What about the necessity of going before a notary in very small cases --With illiterate people, I believe it is the only way of having the facts as agreed upon settled.
13,034. Is it the duty of the notary to explain the nature of the document to the parties?—Yes, and always at the end of each notarial deed there is a mention to the effect that the points of the deed have been read over to the parties who sign it, especially in the case of illiterate people who cannot sign, and who have to make their croen.
13,035. That is a security that you do not think should be removed P-I do not think so.
*.re
13,036. We have had it stated before us that there some deficiencies in your company law here. 1 think I am right in saying that according to the English company law no director is allowed to vote on any question coming before his board which affects nim in his personal capacity, any rights or interests that he may have, or which affects or touches any other of which he is a director. There does not company seem to be a like provision in your company law in this Island P-I am not aware that there is, but I think that directors act as if there was, as a rule.
19,037. But you do not think that a man, being on several different boards having conflicting interesta,
MINUTES OF EVIDENCE.
Sir L. V. DELAFAYE
23 July 1909.)
likely in this Island to abuse his position F -- I do not think so.
13.033. You have not had cases of that sort Irought to your notice ?-Never; at least I have never heard of any complaint from respectable people. In the English law you can article yourself out of it.
13,039. Quite so. I am talking about the law as it stands. You can modify the ordinary law by the articles of ussociation including everything. Then another complaint that has been made is this that in Mauritius it is quite open to directors, without rendering themselves liable, to declare a dividend, though no dividend has really been earned P-I an not sure that it is so. 1 am not sure that a company that declares a dividend which is a fictitious dividend could not, at the suit of a shareholder, be prosecuted and fined.
13,040. You tell me that; can you assure me that it is a misdemeanour according to the Mauritius law? -I do not think there is any Act which makes it a misdemeanour according to the Mauritius law.
13,041. But do you think, under your general Code, he could be got at as a swindler or a cheat, knowing quite well that the company has no assets P-I think he could.
13.042. It is not your opinion that new legislation would be required in that direction?—I would not see uny objection to it.
13,043. Do you know of any real need for it ?—I do not think so.
13,044. And you think that the present law in sufficient for it ?—Yes.
13.045. Have you heard any complaints made in this Island of a practice of this kind P-No.
13,046. When I say complaints, I do not mean tittle-tattle; I mean, have you heard serious com- plaints P-No.
13.047. Can you enlighten us at all as to the position in this Island with regard to jury trials? I have been led to believe that there is some serious complaint about the jury system in the Island. I shall be glad if you will give us information on that point?—I have prepared a note on this question. I have been em boldened to do so, because I recently read in a clever and almirably written book on British Malaya that in the Malay States there was formerly the jury system; that it has been abolished in favour of trial by a judge with a BBOTS. That seems to have worked satisfac torily. Well, formerly we had a trial before one judge and two asseEBŪTS.
13,048. Down to what year —Down to 1850. 13,049. An late as that?—Yes.
19,050. Down to 1850 had you no juries in this leland P-We had no juries.
13.051. AB8888ors instead of juries P-Yes, a28688019 instead of juries. Of course I was not, at that time, big enough to judge by myself, but I must say that I would be very glad if the jury system was to be modified in the sense it has been modified in the Malay States.
13,052. Will you tell us why you say so?—There are very few jurora; I believe there are not more than 600 jurors on the whole list of the Island. Now more than two-thirds of these are black people; I do not want to use the word "aiggers," but they are people of mixed blood, and the remaining portion are generally of the white population belonging to firms, establish- ments and so on, and they never worve on the jury. I have had 25 years' experience as a barrister and 16 years as a judge now.
13058. How do you socount for the fact that they escape service P—They get challenged. The counsel for the defence is entitled to seven challenges in all trials before the Assize Court. Especially if the one in a serious one, for which you would require good jûrors. You see these gentlemen, Mosers. Blyth Brothers, Mosara. Ireland and Fraser and Messrs. Adam & Co., and Mears. Elias Mallac & Co., and other important firms are summoned, and the moment their names come out they are challenged, because they have been to the counsel, and they have given some excuse for their being challenged. As a matter of fact, I have never seen any of the gentlemen of those firms sit on juries; I
[Continued.
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have never seen a member of the firm of Messrs Ireland and Fraser, or any of these firms or their staff in the jury box. Therefore you are left to the worst part of the jury list. There is, unfortunately, a question which dominates all questions in this country, the question of colour; you can never trust the jury if a white man is in the box; you can still less trust the jury if it is a coloured man. Of course when you have to deal with poor Indians who have committed some fault or some felony of some kind ou an estate. it goes on pretty well, although I have seen miscarriages of justice of the most regrettable nature.
13,054. And you say it is very difficult to get a fair trial by jury-It is next to impossible, and if you have time, if you could have before you the ablest man at the Parquet, Mr. Koenig, the Substitute Procureur General, at the same time one of the ablest men we have in the Colony, he has great experience of that. because, as substitute, he has plenty to do in that direction, and he is sometimes discouraged; he would rather hand over his brief to the additional substitute. who is a coloured man, when he sees that the jury list is such that he is sure to have a jury of coloured men to deal with. I have made notes here that the costs
are enormous.
13,055. (Sir Edward O'Malley.) The cost occasioned by the jury system ?—Yes, the costs occasioned by the jury system.
13,058. (Mr. Woodcock.) Parhaps you will just read that out P-The fees to the ushers in 1906-7 have been Rs.9,500, and in the following year, Ra.10,200.
13,057. (Chairman.) Are those for travelling er penses —Yes; that is for summoning jurors; that is for attendance in court; that is for taking care of the witnesses and so on. The cases would be much shorter. The work of the court would be much easier with the jury, because with the jury, counsel are given much more latitude; counsel cross-examine in these Assize Court cases in a dreadful manner; in view of the jury they put questions that they would never dare to put if you had a judge and two assessors.
t
(Mr. Woodcock.) I think all of us are well aware of
that,
13,058, (Chairman.) The work of the court is carried on in English, is it not?—Yes.
13,059. Do these jurors understand English Some hardly understand it, but many that do are not on the list.
13,060. You have explained to us that they are all coloured people. Do they understand English well enough to be able to follow the case?-Generally they are able to understand English sufficiently to follow the case.
18,061. (Mr. Woodcock.) I suppose they would be objected to if they were not able to?—Yes; you some- times see a man who is on the jury list coming forward and lifting his hand and saying, "I do not sufficiently understand English" and then he is excused.
19,062. Have you any other instances to give us about these jury expenses P-The compensation to ushers would be very much less. There are hotel expenses of Rs. 1,800 in one year, and the conveyance of jurymen, Rs. 275 when the case lasted longer than certain hours.
13,068. Those last figures, "allowance to counsel" do not come out of the public purse ?—Yes, of course they do.
13,064. You mean criminal prosecutionis P-Tes, with counsel living at Curepipe, if the osse lasts after the last train, they have to be provided with a carriage, in one year Rs. 16,000 and Rs. 12,000 have been expended. and I believe that the administration of justive would gain by the change.
13,088. (Sir Edward O'Malley.) How would you have it! I would have a judge and two smUSABOTS, SA was formerly the case.
19,066. What function do you assign to the assessors; are they in use under the French Law? -Yos.
13,067. What is their function P-They are almost judges; they share in the responsibility, only when there is a question of law arising, the judge explains the law to them.