Friday, May 27, 2011

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 (, the only website about the Seychelles Legal Environment that is constantly updated.

Friday, May 20, 2011

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 (, the only website about the Seychelles Legal Environment that is constantly updated.

Tuesday, May 10, 2011

Numerous bills kicked into the curb

The word in the dusty hallways of the legal world is that all of the Bills that were being proposed by certain factions in the Government have all been shelved, more or less.

The Companies Bill 2011, the Trusts Bill 2011 and the Corporate Service Providers Bill 2011 were all being presented by SIBA on their website and were being touted as modern pieces of legislation. But modern does not mean good, and just like Windows Vista, none of these Bills will be going any further in their present form. Thank God that trees didn't have to be cut down to produce paper to put these rubbish pieces of legislation on them. A lot of the opposition to these Bills, particularly the Companies Bill, from Civil Society groups like the Bar Association of Seychelles and the Association of Seychelles Accountants and some good sense from those higher up in power seems to have defeated these Bills, for now. Originally, the Bills' proponents hoped that these Bills could be passed prior to the upcoming Presidential Elections. It now appears that although there is political will to bring in new pieces of legislation in these areas of the law, any new pieces of legislation will be formulated through the institutions and bodies that have the real know how.

Then there is the Legal Practitioners Bill 2011. Re-surfacing like a dirty and maggot infested Phoenix from a garbage dump site after being put down by opposition from attorneys in mid 2009, this Bill, in its present form, has been put down once again. Although, there appears to be some political will to produce a new Legal Practitioners Act, it will not be based on the one being circulated, instead comments circulated by the Bar Association will be considered instead.

Another piece of legislation doing the rounds was the Bar Association of Seychelles Bill 2011. This one appears to have been rejected hands down by the powers that be, skipping the recycle bin and going straight into the incinerator, this Bill is obviously proposing unconstitutional laws, something that its proponents have no idea about.

The Robing Room is the official blog of the Seychelles Legal Environment Website (, the only website about the Seychelles Legal Environment that is constantly updated.

Monday, May 2, 2011

Elections: What happens if no one gets 50% of the votes cast?

The Presidential elections are set for the 19th, 20th and 21st May 2011. Four Presidential candidates are taking part, these are the incumbent President of the Republic of Seychelles Mr James Michel of the Parti Lepep, Leader of Opposition Mr Wavel Ramkalawan of the Seychelles National Party, Mr Ralph Volcere of the New Democratic Party and Mr Philippe Boulle as an independent candidate.

In order to be elected President, a candidate must obtain more than 50% of the votes cast if 3 or more candidates are running. In the past elections this has always happened and this was always expected to happen. According to the law, if no one manages to poll over 50% of the votes cast in an election with 3 or more candidates, then there will have to be a further round of voting.

This further round of voting will include only the 2 candidates which have polled the highest and the second highest number of votes (although if there are ties, then the law provides so that all equal first may participate, and also all equal seconds and if all candidates obtain the exact number of polled votes then all candidates may run again).

The law also states that any further round of voting must take place not less than 7 days and not more than 14 days from the preceding round of voting.

The Robing Room is the official blog of the Seychelles Legal Environment Website (, the only website about the Seychelles Legal Environment that is constantly updated.