The 2011 Re-Opening of the Supreme Court: Room for Improvement

Well, it was that time of the year again, the re-opening ceremony of the Supreme Court of Seychelles took place on the 15th day of September, 2011.

As usual, members of the bench and bar congregated to one of the two cathedrals in Victoria for mass, this year it was held at the St Paul's Cathedral, the Anglican church. The Brass Band was there playing one of the theme tunes to the Lord of the Rings trilogy, secretly or unwittingly reminding us that all is not well in the world of Middle Earth, as Sauron's reach is vast, evil and corrupting, but that one day the rightful King shall return to put things in order. Could it be that that King is already amongst us?

The theme for this year's ceremony was that the judiciary was the beacon of hope in the country. This theme was reflected in the mass. But noteworthy in the mass was the choir, which comprised of Supreme Court staff. One of the songs was performed with such energy and vigor reminiscent of movie scenes depicting euphoric performance of a choir in some small town gospel chapel in the outbacks of Mississippi or Alabama. There was another solo which took the breathe away of most everyone present. Yes, there was certainly a beacon of hope for our youth to become great entertainers.

After mass, the members of the bench, bar and court staff took their place in the procession to the Supreme Court premises, Chief Justice Egonda-Ntende inspected the guard of honour, then all proceeded to Court Room No 1 for the piece de resistance, the opening speech of the Chief Justice.

The Chief Justice provided statistics on the number of active cases, numbers of cases being filed and the number of cases being disposed off. From the statistics, it could be discerned that there is a massive backlog of cases before the Supreme Court and the Magistrates Court. Statistics showed that based on the current trend, judges and magistrates were only just about able to cope with the number of cases being filed and some, but the Chief Justice stated that in order to more quickly deal with the backlog, it was necessary that 3 more Supreme Court judges be appointed. He went on to say that once the backlog is taken care of, then the number of judges can be reduced, by merely not appointing new ones until numbers are reduced to an optimum level.

The Chief Justice also found it unfortunate that some lawyers who take on legal aid cases appears to deliberately prolong the court process in order to rake in more fees. He proposed the implementation of a lump sum fee structure for legal aid fees, so that regardless of how long a case takes, a lawyer will be paid the same amount. He said that he will need to speak with all the stakeholders before implementing this practice. It is hoped that this new scheme would prevent lawyers who take legal aid cases from unnecessarily prolonging cases just to increase his/her fees. But there was a fear that legal aid lawyers might then get clients to plead guilty when they might not be, simply to take advantage of the new scheme. Whatever the specifics of the new lump sum scheme, it must be well thought out to prevent or reduce improper practices.

To that end and to confer on other matters, the Chief Justice has created a working group on Civil Justice, to discuss ways forward for the civil process. This Civil Justice working group will comprise of the very senior members of the bar, which he announced during the speech to be Messrs Pesi Pardiwalla SC, Kieran Shah SC, Francis Chang-Sam and John Renaud. The working group will also comprise of the Attorney General Mr Ronny Govinden, Principal State Counsel Mr David Esparon, the Registrar Mr Jude Bonte and the civil case judges. He said that, initially, he will chair the working group personally.

The Chief Justice mentioned a civil justice workshop which was held on the 5th & 6th September 2011, in which the Master of the Royal Court of Jersey, Master John Wheeler shared his experiences with the Seychelles bench and bar on the reforms undertaken in Jersey, the workshop was organized with the support of the Commonwealth Institute, represented at the workshop by its legal advisor Mr Mark Guthrie. The workshop brought out a unanimous position amongst the bench and bar that Alternative Dispute Resolution (ADR) mechanisms, in particular that of mediation, must be introduced in the civil justice process in Seychelles to help alleviate the court of its workload.

The Chief Justice also mentioned the possible introduction of a Commercial List/Track system in the civil process, so that cases allocated into the commercial track would go through a fast track process to ensure completion within 3 to 6 months maximum from date of filing. That this is necessary to deal with disputes of a commercial nature, with an aim to ensure that business and economic activity is not ground to a halt due to delays in civil litigation. The problem with such a system would be many lawyers would seek to get their cases resolved through this Commercial Track system, which would clog the system in time. Perhaps the answer to commercial disputes should lie in arbitration rather than a commercial court or commercial track system. Trainers from the Chartered Institute of Arbitrators could hold specialist classes or workshops in Seychelles to train our lawyers in the international standards required in arbitration and mediation. In no time, a panel of trained arbitrators/mediators can be ready to commence work in an arbitration court, which could be set up privately. An arbitration court makes more sense as well, given that more and more contracts of a commercial nature are providing for any disputes to be resolved through arbitration.

Statistics on court usage in the Seychelles courts shows that, on average, a Magistrates Court is used just under 2 hours a day. Given that the Magistrates Courts normal opening hours is 5 and 3/4 hours a weekday, this court usage is quite abysmal. The reasons for this are numerous, but often lawyers ask for adjournments for all sorts of reasons, and unfortunately, the judges/magistrates grant such adjournments. The Chief Justice proposed the implementation of a quasi wasted costs regime, in that the party or even the lawyer that seeks an adjournment would have to pay up for the cost of wasted public resources. It is hoped that this would prevent lawyers from seeking adjournments of hearings.

Another way in which the court can better make use of its time is with regards to the court vacations. Presently, judges are not using the court vacations as envisioned by law. Sometimes civil cases not of a pressing or urgent matter is heard during the court vacations when there are other matters as provided for by law that should be heard during the court vacation. Section 5 of the Seychelles Code of Civil Procedure states that a court may sit during the vacations to hear partly heard cases and cases of an urgent nature. In practice, partly heard cases are almost never fixed on court vacations. Section 7 of the Seychelles Code of Civil Procedure also states that appeals from the lower courts should be heard during the court vacation, but this is not the practice. Often, appeals from lower courts are set during term time, hence clogging up the court diary.

Another issue which should be looked into is the allocating of cases to particular judges from the moment the case is filed. This appears to be an archaic system. Both Judge Shaun Lyons of the Wood Green Crown Court and Master John Wheeler of the Royal Court of Jersey stated that in their courts, cases are not usually allocated to judges until the case is ready for hearing. Both state that a judge might not even know what case is before until the actual day set for hearing. This is a system that virtually all members of the bar agree with. It would ensure that a case set for hearing can be set before a judge who is free to hear a case on the day and it will also reduce corruption, in that if no one knew who would take a case prior to the hearing date, no one would be able to approach the judge beforehand, this system would reduce the potential for corrupt dealings. All mentions and interlocutory matters would be handled by a single judge or a master. If we brought in the experts to learn from them, we should follow what suit us, and this system would.

The Chief Justice also mentioned that there are moves to provide the judiciary with independence with regards to its finances. This can certainly help in improving the functioning of the judiciary. The judiciary should be able to hire the staff it requires and at appropriate wages. Often, the courts lose good staff due to not being able to pay high enough wages. By increasing wages, the judiciary can be more selective in the support staff they hire rather than having to settle for whoever may be around.

It will take a while yet before the problems with our judiciary can be sorted out. But some problems cannot be fixed by the Chief Justice. Some problems are beyond the grasp of the judiciary. If there are allegations of corruption amongst the judicial officers of the court, it is not the judiciary who selects and appoints judges. If the police cannot conduct a decent investigation which allows certain would-be-criminals to go home scotch free, this is beyond the control of the judiciary. If there are criminal prosecutions that are 10 years old clogging up the system, these cases can simply be withdrawn, but not by the judiciary. The judiciary will never be 'fixed' or 'cured' so long as other institutions are also failing to perform optimally. There must be an energetic and constant political will not just to 'fix' the judiciary, but the entire civil service as a whole.

The Robing Room is the official blog of the Seychelles Legal Environment Website (http://www.seychelleslegal.net), the only website about the Seychelles Legal Environment that is constantly updated.

Wikileaks Leaked Cable Mentions Seychelles Judiciary

Unless you've only been looking at State Controlled Media and not accessing your email and Facebook account, you would have definitely noticed a number of articles and blogs mentioning the Wikileaks leaked report of US Ambassador Cesar B. Cabrera entitled "Paradise Lost: How Corruption Bankrupted Seychelles".

The report is a summary of why, according to the US Ambassador, Seychelles defaulted on its bond repayments in August 2008. It touches upon several facets of Seychelles society, and the judiciary was not spared with the report stating that the Seychelles judiciary is weak, not independent and subservient to the executive. The report does not state its sources of evidence and it appears to be based wholly on hearsay. But what's that old saying about smoke and fire?

The Mauritian Paper L'Express, appears to have broken the story, the article in French can be seen by clicking here.

An English translation of the article can be read through the following blog entry from the Seychelles Reality Blog.

And if you want to see the source material, i.e. the actual report, you may view it by clicking here.

The Robing Room is the official blog of the Seychelles Legal Environment Website (http://www.seychelleslegal.net), the only website about the Seychelles Legal Environment that is constantly updated.

New Web Address for the Website of the Seychelles Legal Environment

The Seychelles Legal Environment website has a new url. Check it out at:

www.seychelleslegal.net

The Robing Room is the official blog of the Seychelles Legal Environment Website (http://www.seychelleslegal.net).

Re-assertion of Authority

The Consultative Committee on reforming companies legislation met on the 7th July 2011 and this time Attorney General Ronny Govinden was present. Notably absent was any representative of the Bar Association.

It was established that OECD pressure led to the formation of the problematic Companies Bill that has been in circulation since early this year and it was confirmed that the Bill was a product of a consultant, at the behest of the Ministry of Finance. It was revealed that the concerns of the OECD can be met with minor amendments to various commercials laws without the need to adopt the much maligned Companies Bill and that the Attorney General's Office, with proper qualified legal draftsmen, will draft the necessary amendments.

It was agreed that stakeholders look into the current Companies Act and the Companies Bill with a view to having a new Companies Bill by early 2012.

Noteworthy was the re-assertion of authority of the Attorney General's Office. The Attorney General's Office reminded members of the committee that procedure as laid down by law, must be followed in the drafting of legislation and that this was not done with respect to the Companies Bill, and that it is the Attorney General's Office who is mandated to do the drafting work.

The Attorney General is the legal advisor of the Government. In recent years, many Government departments and para-statal organizations have started doing all sorts of things without taking legal advice, and sometimes by taking legal advice from persons not qualified to give such advice. It is only when the shit hits the fan that they then come running to the Attorney General's Office whose Attorney General and State Counsel are then tasked with trying to clean up the mess. Many lawyers have stated that numerous civil (especially the great number of judicial review cases) and constitutional court cases would never have needed to go to court if the Government had obtained appropriate legal advice.

The recent developments with regards to the re-assertion of authority on the part of the Attorney General's Office is a step in the right direction. It should eventually mean that the courts will not have to be clogged up with cases that shouldn't be there in the first place, it will mean that perhaps the Attorney General's Office should increase its numbers of State Counsel to cater for legal advisory work, which will mean more opportunities for employment for our law graduates and it will eventually lead to a more efficient Government.

The Robing Room is the official blog of the Seychelles Legal Environment Website (sites.google.com/site/theseychelleslegalenvironment), the only website about the Seychelles Legal Environment that is constantly updated.

Consultative Committee Decides that Consultations are not Allowed

With the backlash from the lawyers and accountants on the previous Companies Bill 2011 which was being circulated earlier this year, the Government decided to create a Company Law Consultative Committee whose mandate was supposed to look into improving upon our company laws.

The committee met last week (8 June 2011) and present were representatives from the Ministry of Finance (MoF) (headed by Mr Rupert Simeon), SIBA (headed by Mr Steve Fanny), SAOPRA (Mr Conrad Benoiton), Chamber of Commerce (Mr Clifford Andre), the Attorney General's Office (Mrs Lali & Mrs Samantha Aglae), the Association of Seychelles Accountants (Mr Richardson) and the Bar Association of Seychelles (BAS) (Mr Conrad Lablache). A nice little collection of representatives from a wider group of interested stakeholders. But that's as good as it got.

Chairing the meeting was the chief representative of the MoF, Mr Rupert Simeon, who basically declared that the committee will have to work on a new draft Companies Bill 2011 which has already been drafted, and which is in fact substantially the same as the one circulated earlier in the year. The very same draft that everyone was against, the very same draft that caused the Government to create the committee in the first place. The MoF rep informed the other members of the committee that the committee will proceed to work on company law reform based entirely on that draft bill.

This "new" Bill still envisions the eradication of the proprietary company as a corporate entity. It still seeks to interfere with other areas of the law that are the preserve of our Civil Code. Our current Companies Act 1972 was drafted with the assistance of the world renowned Professor Pennington (yes, the one who wrote the company law textbook) and now we're getting a new Companies Bill drafted by people nowhere near the academic credentials of Pennington. People who can't draft to the standard of qualified draftsmen. People who have far weaker academic credentials than our very own lawyers and accountants. It's our lawyers who have degrees from highly regarded universities such as Cambridge University and the University of London (LSE included). It's our lawyers who qualified from the Inns of Court School of Law as Barristers. Our accountants are ICAEW Chartered Accountants and ACCA Certified Chartered Accountants. Yet our professionals are ignored and Professor Pennington's Companies Act is mocked by foreigners with their own personal agendas.

In a letter from its Chairman, Mr Antony Derjacques, addressed to the AG and other committee members, the Bar Association of Seychelles has decided to stop taking part in this sham process.

It's a shame that those responsible for this committee could not adopt the open dialogue approach taken recently by Ministry of Employment with regards to employment law reform. The Bar Association of Seychelles was so impressed with the Ministry of Employment's approach that it even wrote about it on its website (click here to view).

The Robing Room is the official blog of the Seychelles Legal Environment Website (sites.google.com/site/theseychelleslegalenvironment), the only website about the Seychelles Legal Environment that is constantly updated.

Supreme Court rules (in strong terms) against Public Bodies

May 2011 was a momentus month for Seychelles, as everyone will know there was the Presidential Elections, which the incumbent President James Michel of Parti Lepep won with almost 56% of the votes cast. Coming in at a fairly distant second was SNP candidate and the Leader of Opposition Wavel Ramkalawan, with almost 42% of the votes cast. But May 2011 also had other interesting developments, particularly in the sphere of the law courts. There was the Constitutional Court challenge of Mr Viral Dhanjee, whose constitutional right to participate in Government was breached when he was prevented in taking part in the said Presidential Elections (as declared by the Constitutional Court!). There is another Constitutional Court challenge from Mr Philippe Boulle, on the voting rights of detainees and prisoners, this case is yet to be decided upon.

But there were two other cases decided in the Supreme Court of Seychelles, which made important and potentially far reaching judicial precedent, which the Seychelles press has been completely silent about. Perhaps the Presidential Elections and the above Constitutional Court challenges drowned them out. But the Robing Room will report.

The first of these two cases is the case of the Financial Intelligence Unit v/s Sentry Global Securities Ltd & Ors, decided in the Supreme Court of Seychelles before Chief Justice Egonda-Ntende. In this case, the Financial Intelligence Unit ("FIU"), sought to confiscate the funds in bank accounts held by 13 entities held in Seychelles offshore bank accounts. The FIU brought in some evidence against some of the parties, but all of it was very circumstantial, and in fact, the main evidence against several other parties is simply that the corporate entities had the same contact address. A lot of the so-called evidence were also unsupported by any documentary proof, which should have been easily obtainable, for example, the FIU alleged that there were cases against the Respondents in US Courts but then failed to present any judgments or orders from these US Courts against the Respondents. The FIU case was dismissed against all of the Respondents. What does this case mean? Well, the Supreme Court is basically telling the FIU that they should come to court with the best evidence available rather than a string of circumstantial and hearsay evidence.

Another noteworthy case decided this month was the case of Oceana (Pty) Ltd v/s The Land Registrar, in this case, the Petitioner brought a judicial review case against the Land Registrar for failing to register a transfer of land. In this case, decided by the Chief Justice in the Supreme Court, it was held that the Land Registrar had failed to use his/her powers as prescribed by law and that the conduct of the Land Registrar in refusing to register a land transfer was inexcusable, indefensible and an outright abuse of power. This case shows the failings in our public institutions and points out that public institutions are now even ignoring or refusing to follow the law. However, this is but one of the very rare cases in which the failings of the Land Registrar is exposed. The Government should act on this case and take this occasion to improve the functioning of the Land Registrar and the Registrar General's Office in general. Surely it cannot help public confidence and investor confidence if our Land Registrar simply ignores or refuses to abide by the law.

Both of these cases are available from SAFLII and you may click on case names (above) to access the whole of the said judgments.

The Robing Room is the official blog of the Seychelles Legal Environment Website (sites.google.com/site/theseychelleslegalenvironment), the only website about the Seychelles Legal Environment that is constantly updated.

Regulating Professions - Double Standards

The Wednesday, May 18 2011 issue of the Seychelles Nation, one of the 3 daily newspapers of Seychelles, is one particularly interesting issue for the Robing Room. Readers who went through the advertisements would have seen a very interesting notice from the Ministry of Land Use. In that notice, the Director of Surveys informs members of the public that it is unlawful for anyone to pass him/herself as a Licensed Land Surveyor and that the public should only engage Licensed Surveyors. The notice goes on to actually list out all of the licensed Land Surveyors.

It is very nice, and indeed proper, for a regulated profession, such as Land Surveying to have the support of the authorities. This is how things should be. Unfortunately, this is not the case for all regulated professions. In particular the legal profession in Seychelles.

Lawyers in Seychelles are officially referred to as an Attorney-at-Law. There are no such lawyers entitled as a Counsellor-at-Law. A Barrister or Barrister-at-Law is an academic qualification that some lawyers use to beef up their profile/image - to show that they have also been called to the bar of England & Wales, but a Barrister who has not been admitted as an Attorney-at-Law in Seychelles is not allowed to practice as a lawyer in Seychelles, or hold himself out as being able to do so.

Section 21 of the Legal Practitioners Act makes it an offence for anyone who holds himself out as being able to perform the duties of an Attorney or a Pupil Attorney, when they are not actually one. It does not matter that someone does not use the term or specifically represent themselves as an Attorney-at-Law. So long as the person tries to hold him/herself out as being able to perform the duties of an Attorney, then he/she would fall foul of the law. So these 'Legal Officers' employed by certain companies and Government Departments and Parastatal Organizations would also, in some cases, be breaking the law.

And it's not like the legal profession hasn't tried to do something about it. False lawyers have been reported to the judiciary, the licensing authority and to the Attorney General, to no avail. None of the authorities have cared to do anything about it. It's well known that a few Corporate Service Providers are also masquerading as "Law Firms" and giving legal advice to the public and the authorities are not doing anything about it. Complaints from the Bar Association of Seychelles were not entertained. With nothing being done by the authorities it is therefore not shocking that more individuals go around calling themselves "lawyers". More groups goes around calling themselves "law firms". And now, a Corporate Service Provider has even published an advert on the Seychelles Nation, the daily newspaper mentioned above insinuating that they can provide pupillage.

Yes, as the authorites continue to do nothing, more and more individuals and groups will get more ambitious in how they represent themselves. Many are giving legal advice on Seychelles law that is wrong and some are even drafting documents that are unlawful. None of them have any training in Seychelles law and more importantly, none of them are qualified as Seychelles attorneys.

What does this mean to you? Well, that contract you signed may be invalid, that property that you purchased may be invalidated (and in certain circumstances liable to be confiscated by the Government if you are not Seychellois), those shares that you purchased may be invalidated, that comfort advice that you thought you obtained when you "consulted a lawyer" might mean nothing. Because remember, in the end, if anything goes sour and you have to run to the courts for help, it is the Courts of Law that will determine whether any agreement you actually entered into or any advice you received is actually valid. And the Seychelles courts of law will not be deciding issues using English law, Australian law, Irish law, South African law, Mauritian law, French law or Indian law, it will be deciding matters using Seychelles law.

The Robing Room is the official blog of the Seychelles Legal Environment Website (sites.google.com/site/theseychelleslegalenvironment), the only website about the Seychelles Legal Environment that is constantly updated.