Lawyers Condemn Proposed Companies Bill 2011

The past few days have seen a flurry of correspondence amongst those in the legal profession. The consensus is that the proposed Companies Bill 2011, accessible from the SIBA website, is ill thought of and should go no further.

Corporate law heavyweights such as Conrad Lablache and  Kieran Shah, SC have publicly denounced the bill in its present form. In light of the distaste for the bill amongst the legal professionals, Attorney General Ronny Govinden has suggested to the members of the bar that perhaps consultations should be held and recommendations brought to the Government's attention.

Lawyers argue that although there may be a need to revise certain aspects of Seychelles' companies legislation, the bill fails to address this. The bill also goes beyond its mandate and seeks to alter other areas of the law. The bill's proponents also appear to lack an appreciation and understanding of Seychelles' civil law and if enacted in its present form, it will create a myriad of problems.

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.

Proposal for Companies Act 2011 put to the public

SIBA has called on the public to comment on a new companies act that seeks to reform and modernize Seychelles' companies legislation. The public has until the 25th February 2011 to provide its feedback. The proposed bill seeks to unify all of the various companies legislation into one comprehensive act.

The white paper and the proposed bill can be downloaded from the SIBA website through the following link http://www.siba.net/index.php?s=downloads.

Comments should be forwarded to the Ministry of Finance at dgpol@finance.gov.sc

A brief perusal of the bill reveals that it seeks to do away with the proprietary limited company, this despite the fact that the vast majority of Seychelles companies are proprietary limited companies. Proprietary limited companies, are companies formed by small groups of individuals, usually within a family circle or close network of friends, it gives the shareholders of these companies certain statutory protections, ensuring that the ownership and control of such companies stay within the family circle or close network of friends. The proposed bill, if passed, will remove all of these statutory protections. And although these may be catered for by amending such a companies' constitutional documents, it will require positive action from the shareholders of such companies to make such changes. Lots of problems will be caused to shareholders of proprietary companies if the proposed bill is passed as is.

Another significant change is that the proposed bill seeks to do away with the Registrar General's role as the Registrar of Companies and transfer that role to SIBA, or a successor organization to SIBA. The Registrar General maintains the register of ordinary companies in addition to the land register and other official registers (business names, register of deeds), located at Kignsgate House, it is a one-stop shop for inquiring into virtually all official local registers. SIBA is presently the Registrar of International Business Companies (IBC's), which is a company that is registered in Seychelles but is not allowed to engage in business in Seychelles (barring certain administrative functions), the IBC is used for wealth management purposes and as a part of complex holding structures. To transfer the ordinary companies registry functions to SIBA would cause several practical difficulties. If one wanted to ascertain if an ordinary company is in good standing and if it owns land or whether it owns certain business names, one will then have to deal with 2 separate registries to obtain such information. It's like having the hospital at Mont Fleuri and transferring the pharmacy to Roche Caiman. Bravo!

The Mutual and Hedge Fund Act 2008 was a failure. The Securities Act 2007 is also a failure. Both were being touted as brilliant pieces of legislation by SIBA. Both have failed to garner any significant business in Seychelles. Both led to our Members of National Assembly wasting their time and energy to raise their hands to pass it as legislation. But at least that was the limit of the damage it caused. The proposed bill, if passed, will have even more negative consequences. It also encroaches into areas that are the preserve of the Civil Code of Seychelles (laws on pledges, incapacity etc), which shows a lack of appreciation of Seychelles law from the bill's drafters and proponents.

The vast majority of the members of the Bar Association of Seychelles are against the proposed companies bill and virtually all of the older lawyers think that it is an abomination. The bill presents itself as a modern reform to our laws but actually creates more problems instead of solving any. The vast majority of SAOPRA (the association of corporate service providers, who deal in IBC registration and administration amongst other things) also think that the proposed bill is ill-conceived.

In an advert on the Nation of Tuesday, 15th February, SIBA also advertised that comments on a proposed Trust Bill 2011 and Corporate Service Providers Bill 2011 would also be welcomed from the public and that all of these bills are available from their website. But at the time of going to press (the Nation), none of these two bills were available for download. Yet, SIBA has placed a deadline of 25th February for the public to comment on these bills. Hey genuises, how can the public comment on the bills when you are not allowing the public access to them? (As of noon, 16/02/2011, the SIBA website is now stating that the two proposed bills "will be uploaded shortly").

The proposed companies bill should be thrown into the bin like the proposed LPA that SIBA was pushing for.

If the Government really wants to reform the company laws, this should be done with the consultation of the main stakeholders of the country. The business community should be engaged with the lawyers, accountants, corporate service providers and the tax authorities, at the very least. Areas needing change should be identified and then proposals for reform suggested. If a new act is needed, then so be it, if only certain amendments to the current laws are required, then let that be the solution. Only then should any draft bill/amendments be made, and even then, it should be drafted by proper qualified legal draftsmen.

These secret drafts in which the public is given only a week or two to comment on is a sham and is disgusting in a supposed democratic society.

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.

The End of the Robing Room as we know It

It truly is a sad day. The robing room as we know it, has come to an end.... well, not this blog, but the actual real robing room located at the Supreme Court of Seychelles, of which this blog derived its title from.

Lawyers would have come back from the Christmas vacations only to discover that the real robing room has been blocked off and all of the wooden lockers, wigs and gowns have been transferred into a tiny room adjacent to courtroom no. 1. In the transfer process one attorney's wig has gone missing and another one was found after a week missing in action. The real robing room is now a tiny little room that can be best described as a store room. The room is so small that only 3 lawyers can fit in it at any one time to robe up. Gone are the tables and chairs, all that is left are the lockers, a mirror and an air conditioner that appears to be on but doesn't seem to be working.

Around 15 years ago, the robing room had tables, chairs and was even properly air conditioned. It was located next to court room no. 2, with a one-way mirror, allowing those inside the room a peek at those waiting outside courtroom numbers 1 and 2. Over time the air conditioner was removed, a corridor was made to go through the real robing room which shrank the room. But it still had the tables and chairs and was a room which encouraged social interaction between the attorneys. It was a room where lawyers could obtain a second opinion on a legal conundrum or even a ruling or judgment. It was a room where State Counsel could be found giving private tuition to their witnesses (ahem!), where lawyers could sit down and explain legal processes to their clients in a more private setting. It was a room where all the new State Counsel and pupil attorneys could hang out to meet and introduce themselves to all of the other court advocates.

More and more lawyers enter the profession and yet the judiciary decides to shrink instead of enlarge the robing room. There are currently just over 40 attorneys, around 10 State Counsel and about 5 pupil attorneys. The numbers are expected to rise with about 15 Seychellois currently in the advanced stages of their legal education and about 30 currently enrolled through the University of Seychelles in their first year of the LLB programme.

The tagline to this blog will have to be changed. For historical purposes, it is reproduced below: 

"The Supreme Court of Seychelles has a room where most of the lawyers keep their wigs and gowns and where they change into them. It is also where all the latest news and gossip are shared... "

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.

Judge Gaswaga sworn in for a second term

Judge Duncan Gaswaga was sworn in for a second term as a Puisne Judge of the Supreme Court of Seychelles yesterday, on the 10th day of January 2011. The Nation has a front page article on the matter which you may read by clicking here.

According to news reports, Judge Gaswaga was sworn in for a second term of only 2 year duration. According to the Constitution, terms can be up to 7 years in duration, however, in practice, the Government appoints Judges on 5 year terms.

According to the news reports, the exceptional circumstances which merits Judge Gaswaga's re-appointment is that he is a "good judge" and that there is a the great number of partly heard cases before him. It goes on to state that these cases would have to be re-started if Judge Gaswaga was not re-appointed. This is a fallacy. According to section 132(3) of the Constitution, a judge may stay on as one in order to complete the cases before him. There was therefore no need to re-appoint Judge Gaswaga if that was the case. News reports also noted that Judge Gaswaga is the head of the criminal division of the Supreme Court, a division that comprises of only 1 or 2 other judges. Furthermore, apparent merit was given to the notion that he contributed greatly to the reform in the Seychelles criminal justice system. Interestingly, no mention is made of the alleged reforms that were made. In the meantime, back on planet Earth, Indian Ocean, Seychelles, it is common knowledge that the criminal justice system is in tatters.

The local courts have never ruled on the meaning of "exceptional circumstances", but if we are to take the meaning given by the press, who would have gathered the same either from the judiciary or the Constitutional Appointments Authority, then, being a "good judge" and having a case in front of you qualifies as "exceptional circumstances". What does "good judge" mean? And surely every single Supreme Court Judge has at least one partly heard case in his calendar. Therefore, every single foreign judge would qualify for re-appointment under this test of "exceptional circumstances".

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.

The Appointment and Re-Appointment of Judges of the Supreme Court

Tensions seems to be bubbling just under the surface as talk is rife that Ugandan national, Judge Duncan Gaswaga, whose 5 year term as a Supreme Court of Seychelles Judge is coming to its end, shall be re-appointed for a second term. The vast majority of lawyers in the country are against such a re-appointment, especially since there are qualified and able Seychellois more than ready to assume positions in the judiciary.

Rumours are circulating that if Judge Duncan Gaswaga were so re-appointed, then the Bar Association of Seychelles ("BAS") will challenge such a re-appointment before the Constitutional Court of Seychelles.

The law is quite clear when it comes to the appointment of Supreme Court Judges, section 126(1) of the Constitution of the Republic of Seychelles states:

"A person is qualified for appointment as a Judge if -

(a) the person has been entitled to practice before a court of unlimited original jurisdiction for not less than seven years; and

(b) in the opinion of the Constitutional Appointments Authority the person has shown outstanding distinction in the practice of law and can effectively, competently and impartially discharge the functions of the office of a Judge under this Constitution."

Schedule 2 of the Constitution, entitled "Principles of Interpretation", also defines the word court to mean "a court of competent jurisdiction established by or under the authority of this Constitution." Which means that in order to be a Supreme Court Judge in the first place, you must have been entitled to practice law before a Seychelles court of unlimited original jurisdiction.

5 years ago, in January 2006, when Mr Duncan Gaswaga was appointed as a Supreme Court Judge after serving as a Magistrate and then as a Senior Magistrate (for less than 7 years in total), BAS filed a petition before the Constitutional Court of Seychelles to challenge the appointment on the very simple grounds that Gaswaga did not fulfill either of the two pre-requisites set down in section 126(1) of the Constitution as set out above. BAS later withdrew the petition only because, as heard through the grapevine, it was understood that Judge Gaswaga would not seek for re-appointment and that he would not, at the very least, seek to become a Seychellois national whilst he was a Judge of the Supreme Court.

5 years on, and it appears as though that the understanding is on the verge of being broken, as the word in the dark narrow street is that Judge Gaswaga is up for re-appointment shortly. This despite the law regarding the re-appointments of non-Seychellois in the Judiciary, which states that the re-appointment of a person who is not a citizen of Seychelles can only be done in "exceptional circumstances" (section 131(4) of the Constitution). What these exceptional circumstances are, are beyond the imagination of the Robing Room. Judge Gaswaga has shown himself to be a 'hanging judge', convicting accused persons before him regardless of the evidence put before him. "Guilty until proven Innocent" may be too nice to Judge Gaswaga, the truth is more like "Guilty until your Fair(er) Hearing before the Court of Appeal". His caseload comprises substantially of criminal cases, although he is in fact a judge of the Supreme Court's "Criminal Division", why is it that all of the other Supreme Court judges, even those in the "Criminal Division" are hearing several civil cases? Seychelles' substantive civil law is based on the French Napoleonic civil code and it is not something that one who only has a common law/English law based education is likely to grasp easily. Seychelles attorneys,especially those whose formal legal education is based on the English common law undergo two years of pupillage in Seychelles to grasp not only the Seychelles' French based civil law background, but also the unique mixed law jurisdiction that is the Seychelles legal system. Even then, years of practice is also necessary for one to truly appreciate our unique legal system. Judge Gaswaga's formal education in law is based on the English common law, just like most of the Seychelles lawyers, but unlike the Seychellois lawyers, he never undertook pupillage here, and never practiced here as a lawyer. This may be a key factor why very few civil cases are before his court. And one would think that in appointing a Supreme Court Judge, the authorities should go for someone who at least has good knowledge of and practice in both criminal and civil law matters.

"Exceptional circumstances" also means circumstances extraneous to the Judge. The Constitutional Appointments Authority must look at whether there are others who may be appointed as Supreme Court Judges. And there are a handful of lawyers, with years of experience who are not only more than qualified to take up a post as a Supreme Court Judge, but who are also willing to do so. And it is common knowledge amongst the legal community that the Constitutional Appointments Authority has received applications from these willing lawyers. One then has to wonder what these "exceptional circumstances" are to re-appoint Judge Gaswaga.

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.

Book on Seychelles Court of Appeal Judgments Published

The Bar Association of Seychelles, on their website, has welcomed the publication of the latest book on Seychelles law - "Leading Cases of Seychelles 1988 - 2010". The publication of the book was the initiative of Professor Angelo of Victoria University of Wellington, New Zealand. Professor Angelo is no stranger to the Seychelles legal scene, he co-authored one of the most popular books on Seychelles case law - "The Law of Seychelles Through the Cases", more commonly referred to in the Seychelles legal community simply as the "Venchard" book, it was a compilation of selected judgments from the Seychelles superior courts from 1936 to 1996. The latest book also has a foreword written by the President of the Court of Appeal, Justice MacGregor, who traces the history of Seychelles case law books.

This latest book is a compilation of summaries of selected decisions of the Seychelles Court of Appeal from 1988 to 2010. It does not contain the actual judgments and it does not pretend to do so. But the summaries of the facts and principles of some of the cases therein are not presented accurately. Court users and students of Seychelles law must use this latest book with care.

Nevertheless, publications on Seychelles law are always a welcome thing given the lack materials on the matter. The website of the Bar Association of Seychelles has a Law Journals page in which materials on Seychelles law are made available to the public. Presently, the Law Journal only has a handful of articles but it boasts of articles from the much revered Andre Sauzier and Philippe Boulle.

  

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.

Derjacques Re-Elected as Chairman of the Bar Association of Seychelles

The Bar Association of Seychelles ("BAS") held its 2010 Annual General Meeting ("AGM") earlier today (6th October 2010) at the Supreme Court Building.

Members of BAS displayed their support for the previous year's Management Committee by re-electing several of its officers. Below is the list of the newly elected Management Committee of BAS:

Chairman: Mr Antony Derjacques

Secretary: Mr Divino Sabino

Treasurer: Miss Teresa Micock

Executive Officers: Mr Frank Ally & Mr Elvis Chetty

The Chairman expressed his delight in being able to hold true to the key issues that his committee promised to undertake in the previous year, such as the setting up of the BAS website and the holding of the BAS "Annual" Dinner (in December 2009) for the first time since 2005, a dinner which saw an excellent turnout from members of the private bar and judiciary. For the coming year, the new Management Committee has been mandated, inter alia, to draft and circulate a Code of Ethics for lawyers and to forge working relationships with more local and international organizations.

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.