Statutory time limits serve to bring a sense of order in the litigation process. Firstly, they determine the timeline within which an aggrieved person may seize the court, they also put pressure on certain parties e.g. employers, to act decisively within a fixed delay, they provide a guideline for the judicial and legal procedures, and they generally ensure that actions involving legal responsibility are conducted within reasonable time limits. As a general rule, it would be fair to say that it is highly desirable for a functional justice system to apply statutory time limits strictly.
There are however penalties usually attached to the non-respect of statutory deadlines – the harshest of which is the inability to pursue a judicial redress. In such cases, the aggrieved party – no matter how strong his case may be – will be debarred from being heard by the Court on account of having delayed beyond the statutory deadlines. The implication of this “all or nothing” approach has the effect of imposing a threshold test and puts a high on us on the courts in determining how to interpret statutory time limits.
Whilst it would probably be sensible to expect that all statutory provisions containing time limits should be applied with the same rigour, the reality is different. A body of law is being developed whereby there is a substantial disparity in the treatment of statutory delays applicable in various circumstances. As a result, it is becoming increasingly challenging to ascertain whether statutory delays still play their role of procedural watchdog or whether they are in some areas, becoming irrelevant.
The Courts have been consistent in adopting a hard-line approach in applying statutory deadlines strictly in employment cases. Being no doubt influenced by the rights of workers as understood by the International Labour Organisation, and the various international conventions signed by Mauritius in this regard, our Courts have applied the statutory time delays regarding the phases leading up to the termination of employment of a worker. In particular, the delay of 7 days from the end of the hearing within which the employer must notify the worker of the outcome of such hearing has been very rigidly interpreted. The Privy Council has also upheld this approach which seems to have been put to rest with the case of Mauvilac Industries Ltd v Ragoobeer [2007] UKPC 43.
Likewise, the Courts have been strict in the application of delays in procedural matters. The statutory delay of 21 days for the lodging of an appeal is applied with sledgehammer ruthlessness. This stretches to applications for new trials made outside delay – vide Appasamy & Anor v. The Mauritius Commercial Bank Ltd [2005 SCJ 81] and to applications to appeal to the Privy Council outside delay – vide Sewraz Freres Ltd (in receivership) v British American Tobacco 2013 SCJ 400.
The same principle seems to apply to statutory demands made outside delay under the Insolvency Act. In the case of Compagnie Sucrière de Bel Ombre Ltd v Alliance Building Contractors Ltd [2016 SCJ 131], the trial judge refused an application for a statutory demand on the ground that it was made outside the mandatory delay imposed by section 181(6) (a) of the Insolvency Act. On appeal, the Court (K.P. Matadeen C.J. & Chui Yew Cheong J.) dismissed the appeal and referred to sections 181(2) and (3) of the Insolvency Act, holding as follows:
“A reading of the two subsections leaves no doubt that the statutory delay of 14 days is mandatory and should be strictly observed. Non observance of the delay will result in the inability of the Court to entertain the application together with the reasons invoked in the application to set aside the demand. In other words, the application is deemed not to have been made. The learned Judge accordingly cannot be faulted for refusing to entertain the application on the ground that it was made outside the statutory delay and also for not considering the question of ouster of jurisdiction in favour of arbitration invoked in the application.”
The same reasoning seems to stretch to incidental applications for the stay of sale by licitation proceedings. In the case of Narrainen Y. S v Narrainen S. S & Anor 2017 SCJ 271, the appellate Court (Caunhye Ag S.P.J. & Kwok Yin Siong J.) was called upon to consider the ruling of the Master who set aside an incidental application under sections 102 and 105 of the Sale of Immovable Act, for not having complied with the time limit provided therein. When upholding the Master’s decision, the Court quoted with approval the following dictum in Nuthay v Lallmohamed & Anor [2003 SCJ 33]:
“If such matters were to be considered the whole system governing judicial sales would come to a standstill where defendants choose at the last minute to flood the Master with loads of documents to support any objection they may wish to present against the sale. That is why statutory provisions exist to regulate the conditions, including the timing, which must be satisfied with regard to the taking of objections to judicial sales – vide Sections 102, 86 and 87 of the Sale of Immoveable Property Act (the Act). The Deputy Master & Registrar was therefore justified in refusing to postpone the sale considering that the objection to the sale was not in compliance with the statutory requirements”
In all these cases, the invocation of exceptional circumstances displays the existence of a judicial discretion – which is however very sparsely exercised. In the case of Malloo v/s The State 2010 SCJ 13, the appellate Court (Caunhye & Devat JJ.) considered a case where an application for the filing of additional grounds of appeal in a criminal case was made outside the statutory delay. The Court found that there were compelling grounds to grant an additional ground of appeal and remarked as follows:
“It stands to reason that the rule as to the peremptory application of time limits ought not to be followed with undue rigidity, and without exception, in a manner which may lead to a serious miscarriage of justice. One must not, however, lose sight of the necessity for grounds of appeal to be lodged within the prescribed time limits and to adhere strictly to the statutory time limits in respect of an appeal following conviction. If that were not so, it would be impossible to achieve finality and it might lead to abuses in practice. Appellants should, as a result, be prudent in observing strictly the provisions of section 93 and, more particularly, the time limits prescribed therein as failure by them to do so will entail the serious consequence of their not being able to raise additional grounds of appeal beyond the statutory time limit. Whether or not the Court proprio motu will raise the point is a matter for the Court itself to consider in the exercise of its discretion in order to avoid any gross injustice and not for the appellants to raise by way of belated additional grounds of appeal. The appellants and their legal advisers should therefore be wary of omitting or overlooking to raise in their grounds of appeal any fundamental defect in the information or in the judgment or any material irregularity in the course of the trial trusting that if there is any such defect or irregularity, the appellate Court will either of its own accord take up the matter proprio motu, or exceptionally allow additional grounds of appeal to be filed outside the statutory time limit.”
In matters concerning the conduct of litigants in general, the Courts have tended to take a strict approach in upholding the application of statutory deadlines. The judicial cursus appears to be that there may be a discretion in allowing tardy actions, but such departures will be exceptional and would require acceptable explanations. In the case of Salim Muthy v The State of Mauritius 2020 SCJ 318, the applicant who described himself as a “reputed and respected social worker”, sought constitutional relief against various provisions of the Prevention of Terrorism (Amendment) Act 2016 – which he claimed were unconstitutional. Rule 2(2) of the Supreme Court (Constitutional Relief) Rules 2000 provided that:” Except with leave of the Supreme Court, on good cause shown, no application shall be lodged more than 3 months after the right of action arises.” The plaint was lodged well after the expiry of 3 months, after the law was passed. The Supreme Court (Narain & Dabee JJ.), held as follows:
“Now rule 2(2) does allow for an application for constitutional redress or relief to be made outside the prescribed delay of three months in exceptional cases where the applicant has shown good cause in relation to the delay and obtained leave from the Supreme Court to that effect (see also Luk Tung v The Commissioner of Police & Ors [1996 SCJ 240], Mohamadally v The State [1999 SCJ 383] and De Boucherville v The Director of Public Prosecutions [2002 MR 139]). However, in this case no attempt, let alone any serious attempt, has been made by the plaintiff to show good cause and obtain leave from the Court, although his plaint was duly signed by his attorney from the start. The delay in lodging the plaint is in the circumstances fatal to the plaint.”
Having considered the above cohesive approach of the Courts in the interpretation of statutory deadlines, it is noted that the situation begins to change with the application of such deadlines in the realm of public law. In the case of Seebaruth v. The District Council of Flacq 2020 SCJ 138, the appellate Court (Chan Kan Cheong & Gunesh- Balaghee JJ.) considered the consequences of the failure of the Environment and Land Use Tribunal to deliver its determination within the time limit prescribed by section 5(7) of the Environment and Land Use Appeal Tribunal Act. The conclusions of the Court were as follows:
“[…] The Tribunal, therefore, has important public functions and powers. Its determinations are of public interest.
If these determinations were to be invalidated merely because they were delivered outside the statutory time limit and, as a result, the appeals had to be heard anew, this could cause public inconvenience and injustice, the frustration of the purposes of the legislation and additional public expense.
In these circumstances, we are of the view that the legislature could not have intended that a breach of the time limit under section 5(7) of the ELUAT Act would prevent the Tribunal from discharging its public function and duty. In other words, we do not believe that it was the intention of the legislator that non-compliance with the time limit would result in fettering the jurisdiction of the Tribunal and invalidating its determination.
Our view is buttressed by the fact that, tellingly, no sanction is provided in the law for failing to comply with the time limit prescribed under section 5(7) of the ELUAT Act. Neither does the Act provide that any breach of the requirement under section 5(7) will render the determination of the Tribunal invalid, nor does it indicate what will be the consequences thereof.
This is not to say that this Court will never declare invalid a determination delivered in breach of the statutory time limit by the Tribunal. One might envisage a particular case where this Court might feel bound to intervene where, for instance, the delay was inordinately lengthy and in bad faith, or due to the inordinate delay, a party suffered material prejudice, did not benefit from a fair hearing or fundamental human rights were in issue. Such is not the case here.”
This case was preceded by the case of Dr. Ng Kuet Leong v The Medical Council of Mauritius [2019 SCJ 1], which concerned a case where the Medical Council had failed to comply with a statutory time limit of 14 days in which to communicate its decision to the applicant. The Appellate Court (Caunhye & Kwok Yin Yen JJ.) held that the decision was valid despite having been communicated outside the statutory time limit:
“The question which arises therefore is what the effect of a breach by the Council is to comply with the statutory requirement as to the time limit which is imposed in imperative terms by the use of the word “shall” under section 17(6) of the Act.
We need first to observe that the legislator has not expressly laid down in the Act itself that any act done in breach of section 17(6) would render a decision of the Council invalid nor has the legislator indicated what should be the consequences for non-compliance with the time limit for the communication of the decision.
Although the word “shall’ is meant to be imperative, it is necessary to ascertain the consequences which was intended by Parliament in case of non compliance with the time limit laid down in section 17(6) of the Act. For that purpose, it is incumbent upon the Court to try to get at the real intention of the legislature, by examining the object and design of the whole statute and by evaluating the seriousness of the breach and any resulting injustice, public inconvenience or prejudice which may be caused either by invalidating or maintaining the decision.
According to the Act, the main function of the Medical Council is to “exercise and maintain discipline in the practice of medicine”. The provisions of the Act also set out explicitly how complaints against medical practitioners should be dealt with through a process of investigation of these complaints and eventually, the holding of disciplinary proceedings and the imposition of disciplinary measures.
It clearly emerges from the design and contents of the Act, that its overriding objective is to give effect to a compelling public interest to deal effectively with complaints of professional misconduct or negligence on the part of medical practitioners. The public interest consideration in ensuring the implementation of disciplinary measures in conformity with the Act by far outweighs the inconvenience, if any, which may result from a failure to communicate the decision in time.”
The appellate Court further distinguished this case from that pertaining in Mauvilac Industries v Ragoobeer (Supra), in the following terms:
“The present case can be easily distinguished from Mauvilac Industries v Ragoobeer (Supra). Unlike the present case, the scheme of the legislation, more particularly under section 32 of the Labour Act, indicate that it was clearly intended by the legislator that the failure to comply with the time limit of 7 days following a dismissal of an employee would constitute unjustified termination of employment under the Act.
The requirement laid down in section 17(6) of the Act concerns only the communication of the Council’s decision to impose a disciplinary measure to the applicant. It can hardly be disputed that a delay in the communication of the decision cannot, in the light of the overall scheme of the legislation, be of such significance so as to vitiate and invalidate the imposition of a disciplinary measure which has gone through
the whole process of a disciplinary procedure in accordance with the Act.
In view of the object of the statute and the general scheme of the legislation, it cannot be said that it was the intention of Parliament to insist on a strict compliance of the time limit prescribed under section 17(6) of the Act and that it was intended by Parliament that any delay in communicating the decision with regard to disciplinary measures would invalidate the decision of the Council. To insist on a strict timely compliance of that particular procedural provision of the Act would be inimical to, and would indeed frustrate, the legislator’s overriding concern to effectively implement disciplinary measures after charges have been found proved following the due, and a fair, process.”
The same reluctance to invalidate administrative action on account of non-compliance with statutory deadlines can be seen in the case of Jeebun Runal Singh v The Financial Intelligence Unit 2023 SCJ 173, where the failure of the Financial Intelligence Unit to comply with the statutory delay of 21 days for service of the notice of a Restriction Order was held not to be fatal. The Court (Maghooa J.) observed the following:
“In Attorney General Reference (No. 3 of 1999) [2001] 2 AC 91, the House of Lords held “that the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity”.
This decision led to the adoption of a flexible approach of focusing intensely on the consequences of non compliance, and posing the question, taking into account those consequences, whether Parliament intended the outcome to be total invalidity.
The Court has therefore to examine the consequence that may follow from insisting on a strict observance of the particular provision and more importantly the scheme of the other provisions of which it forms part and whether the failure to comply with the particular provision has caused prejudice to applicant.”
On the other hand, actions entered against the State are also subjected to strict account as regards compliance with statutory deadlines. There is a long and consistent string of cases witnessing the guillotine approach taken by the State as regards its systematic objection to non-compliance with the delays laid down under the State Proceedings Act for actions entered against the State and under the Public Officers’ Protection Act for actions entered against public officers. The Supreme Court has in both cases, observed a steady cursus of applying such delays strictly at the expense of striking out actions.
The difference in the judicial treatment of statutory delays has had the effect of pigeonholing types of delays eligible for strict adherence from other types of delays whose non adherence would not be fatal. The previous classifications of delays into “mandatory” and “directory” ones as admitted in the case of Perrine & Ors v/s Foogooa & Ors 1967 MR 134, although stated as no longer being applicable in the later case of Librairie Le Cygne Ltée v/s CEB 2010 MR 382 – do not assist in bringing certainty and finality in the court process. All in all, it would appear that now, more than at any time before, the extent of judicial discretion applied in the interpretation of statutory delays, has substantially blurred the lines of demarcation leaving each case to be treated on its own merits.
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About the authors:
URMILA BOOLELL SC
Founder & Group Head – Temple
Head of Chambers, Temple Law
Urmila Boolell SC is a barrister with nearly 40 years of experience and the founding member of Temple Group. She became Senior Counsel in 2016 and is the most senior woman at the Mauritian bar. Recognised as a ‘Leading Lawyer’ by international rankings, she specialises in civil and commercial litigation.
ZAKARIYYA SEEKDAUR
Barrister at Temple Law
Zakariyya joined Temple Law as a Barrister in November 2023. He advises and represents clients in civil and employment matters, appearing regularly before the District and Intermediate Courts of Mauritius and the Supreme Court. Zakariyya assists in employment matters, representing employers in labour disputes, and conducting disciplinary hearings.
