Latest regulatory updates impacting Mauritius
Latest developments from the Office of the Chief Justice 4 January 2021.
The Courts (Amendment) Bill for the setting up, within the Supreme Court, of a Financial Crimes Division and a Land Division
The Cabinet has agreed to the introduction of the Real Estate Agent Authority Bill into the National Assembly. The object of the Bill is to provide for the establishment of the Real Estate Agent Authority in order to regulate and control the business activities of real estate agents, including business activities of land promoters and property developers.
The Bill has been rendered necessary with views of:
- promoting transparency, accountability and integrity in the business activities of real estate agents, including business activities of land promoters and property developers;
- protecting and assisting persons engaged in real estate transactions with real estate agents, including land promoters and property developers; and
- ensuring further compliance with recommended international best practices and norms for combatting money laundering and the financing of terrorism and proliferation.
Accordingly, the Authority will:
- register real estate agents, including land promoters and property developers;
- exercise and maintain discipline in the business activities of real estate agents, including business activities of land promoters and property developers; and
- cooperate with the Financial Intelligence Unit under the Financial Intelligence and Anti-Money Laundering Act and other relevant public sector agencies to assist in the detention and prevention of money laundering and the financing of terrorism and proliferation within the real estate sector.
The Cabinet has taken note that the Insolvency (Extension of Time during COVID-19 Period) Regulations 2020 would be promulgated by the Minister of Finance, Economic Planning and Development. The Regulations are being made in the context of the COVID-19 period to provide for extension of time for the Administrator to convene a watershed meeting and for the deed administrator to execute the Deed of Company Arrangement when a company is facing insolvency.
Cabinet has agreed to the Report of the High Level Committee of Experts to review the Law Practitioners Act and other Legal Enactments concerning the Legal Profession in Mauritius being made public for comments from all stakeholders
The Courts (Amendment) Bill is being finalised and the object of the bill is to amend the Courts Act for:
- the setting up, within the Supreme Court, of a Financial Crimes Division and a Land Division;
- the setting up, within the Intermediate Court, of a Financial Crimes Division; and
- enabling the Chief Justice to set up, within the Supreme Court and the Intermediate Court, such other divisions as he thinks fit for the dispatch of civil business and criminal business.
The setting up of the Financial Crimes Division of the Supreme Court and the Financial Crimes Division of the Intermediate Court have been rendered necessary with a view to ensuring that financial crime cases are dealt with expeditiously, thereby ensuring further compliance with recommended international best practices and norms of the Financial Action Task Force. The Financial Crimes Division of the Supreme Court will, in addition, have jurisdiction to hear and determine any other matter under any enactment which is connected or ancillary to a financial crime offence.
The Director of Public Prosecutions will, depending on the seriousness of a financial crime offence, determine that the information relating to the offence shall be laid before Financial Crimes Division of the Supreme Court or the Financial Crimes Division of the Intermediate Court.
As regards the Land Division of the Supreme Court, the setting up of this specialised division in land disputes, which comprise both technical and complex issues in the management and administration of land, has been rendered necessary with a view to facilitating the just, expeditious and accessible resolution to land disputes. The Land Division of the Supreme Court shall, accordingly, have original jurisdiction to hear and determine:
- any matter regarding ownership of land and property rights, other than any matter which falls under the jurisdiction of the Intermediate Court or District Court under any enactment; and
- any other matter connected therewith as the Chief Justice may direct.
The Bill further provides for matters connected, consequential or incidental to the setting up of divisions within the Supreme Court and the Intermediate Court.
The Criminal Code (Amendment) Bill
The object of this Bill is to amend the Criminal Code to criminalise, inter alia, the production or distribution of an article, an object or a document that conveys misleading information about, or misrepresents, the sovereignty of Mauritius over any part of its territory.
The Minister of Labour, Human Resource Development and Training of Mauritius issues regulations under the Workers’ Right Act 2019
As we announced in our E-Alert dated 11 August 2020, the Finance (Miscellaneous Provisions) Act adopted measures of the National Budget 2020-2021. In this regard, one of the measures specifically concerned the prohibition under the Workers’ Rights Act 2019 (WRA) on an employer to reduce its workforce, whether temporarily or permanently during the prescribed period (‘Mauritian Government adopts new national budget measures in the Finance (Miscellaneous Provisions) Act 2020.
Thus, on 14 August 2020, the Minister of Labour, Human Resource Development and Training (Minister of Labour) issued the Workers’ Rights (Prescribed Period) Regulations 2020 (Reduction of Workforce Regulations) under section 214 of the WRA (GN 183 of 2020). They come into force on 01 June 2020 i.e. retrospectively.
In this regard, the Reduction of Workforce Regulations confirm that under section 72(1A) of the ERA, the prescribed period refers to the period starting from 01 June 2020 and ending 31 December 2020.
Clearly, in passing the Reduction of Workforce Regulations, which have retrospective effect, the Minister of Labour is addressing the concerns of the Mauritian Government regarding the twin threats of insolvency of Mauritian companies as a result of the lockdown caused by the COVID-19 pandemic and the ensuing threat of unemployment in its endeavour to emerge from the pandemic and its effect on our economy.
The Workers’ Rights (Prescribed Period) Regulations 2020 (Reduction of Workforce Regulations) which came into force on 01 June 2020 and adopted measures to prohibit employers (as defined in section 72 of the Workers’ Rights Act 2019) from reducing its workforce, whether temporarily or permanently, starting from 01 June 2020 and ending 31 December 2020, has been amended so as to extend the period during which an employer shall not reduce the number of workers in his employment, either temporarily or permanently, or terminate the employment of any of his workers, up to 30 June 2021.
The National Sanctions Secretariat of Mauritius issues guidelines to implement Targeted Financial Sanctions
On 25 August 2020, the National Sanctions Secretariat, which evolves under the aegis of the Prime Minister’s Office of Mauritius, issued guidelines on the implementation of targeted financial sanctions (Guidelines) under the United Nations (Financial Prohibitions, Arms Embargo and Travel Ban) Sanctions Act 2019 (Sanctions Act).
In so doing, the National Sanctions Secretariat aims to assist “reporting persons with the implementation of the restrictive measures, in particular the financial prohibitions prescribed under the Sanctions Act”. The phrase ‘reporting persons’ is a defined term under the Guidelines.
The Guidelines go further and justify the implementation of the measures announced therein as they reiterate the avowed aim of the Mauritian Government to protect its international financial centre from abuse on the part of “illicit actors engaging in proliferation financing and other proliferation efforts” the more so that Mauritius is a member of the United Nations and has endorsed the Financial Action Task Force (FATF) which requires States to implement targeted financial sanctions which specifically address the issue of proliferation financing under its Recommendation 7. In May 2019, in an effort to meet its obligations to implement Recommendation 7, the Government of Mauritius enacted the Sanctions Act which also provides the legal framework which is required in order to implement the UN sanctions adopted by the UNSC under Chapter VII of the UN Charter.
In this regard, the Guidelines caution vigilance both on the part of natural and legal persons in order to ensure that they do not, directly or indirectly, support individuals or organisations which are caught by the United Nations Security Council (UNSC) proliferation-related sanctions under the UNSC Resolutions 1718 (2006) and which specifically relate to the Democratic People’s Republic of Korea, 2231 (2015) and which in turn relate to the Islamic Republic of Iran and their successor resolutions.
Through the National Sanctions Secretariat which was established under the Sanctions Act, the Government of Mauritius is further strengthening its past efforts in order to provide a robust legal framework which is the prerequisite for a healthy international financial centre.
Filings at the Registrar of Companies (RoC)
Due to the extension of the lockdown period following the COVID-19 outbreak, companies with documents required to be filed under the Companies Act 2001 during the lockdown period, will exceptionally be granted an extension of one month from the end of the lockdown period to do the needful.
Documents can be submitted either online or otherwise on the respective mail addresses provided on the website.
The Corporate and Business Registration Department (CBRD) further wishes to inform its stakeholders that the original of the documents submitted by email as mentioned above must be sent to its office after the confinement period.
The CBRD may take more than 5 days to process documents submitted online as the office of the Registrar is operating in an exceptional work environment from home.
Moreover, delay for companies to comply with the Companies Act through letters or notices will also be extended to 15 May 2020.
Online facilities in respect of online incorporation and online filing are being maintained, however, users may experience some delay with regard to acknowledgement and approval.
The Registrar of Companies has also issued Practice Directions on Methods of Holding Meetings and Extension of Deadline During COVID-19 Period and Post COVID-19 Period
Methods of holding meetings:-
- All meetings should be duly constituted as per the requirements of the Companies Act.
- Notice of such meeting must be sent to every shareholder entitled to receive notice of the meeting and to every director, secretary and auditor of the company not less than 21 days before the meeting.
- Notices of meetings must be effected in accordance with section 327 of the Companies Act.
Extension for holding annual meetings:-
- Companies whose annual meetings were due to be held during the COVID–19 period, from 23 March 2020 to 1 June 2020 may hold their annual meetings no later than 31st July 2020.
- Companies whose annual meetings were due to be held after the 1st of June 2020 and until 30th September 2020 may hold their annual meetings no later than 30th November 2020.
- Companies whose annual meetings were due to be held during the COVID–19 period are required to file their Annual Returns 28 days after the holding of such meeting.
- This Practice Direction supersedes any other prior communique issued by the Corporate and Business Registration Department and is applicable only during the Covid-19 period and post Covid-19 period.
Filings at the Financial Services Commission (FSC)
The Mauritius Financial Services Commission has issued revised guidance on Fitness and Propriety and Security Token Offerings and Security Token Trading Systems.
The Financial Services Commission of Mauritius issued a communique on the filing and reporting requirements of its licensees in view of the national lockdown which was in force as a result of the COVID-19 pandemic.
The FSC has thus confirmed that it will continue to maintain a flexible approach and will not impose administrative penalties on its licensees, including Reporting Issuers, for late filings and reporting obligations.
Administrative penalties will not be levied if filing of Audited Financial Statements/Annual Reports, Quarterly/Interim Financial Statements and Financial Summary are made on or before 30 September 2020, as indicated in the here under table:
|Type of Report||Year ended||Applicable time-frame for submission under the Relevant Acts or FSC Rules||Date until which administrative penalties will not be levied|
|Annual Reports / Audited Financial Statements and Financial Summary||31 October 2019 to 29 February 2020||Not later than 6 months of balance sheet date||30 September 2020|
|Annual Reports /Audited Financial Statements||31 December 2019 to 31 May 2020||Not later than 90 days or 3 months of its balance sheet date||30 September 2020|
|Quarterly/Interim Financial Statements||Quarter ended 29 February 2020 to 30 June 2020||Not later than 45 days after the end of each quarter||30 September 2020|
It has been specified that the flexibility will not apply to the filing and reporting obligations which were already due prior to the start of the national lockdown, i.e. 20 March 2020.
The Financial Services (Consolidated Licensing and Fees) Rules have been amended to provide for the licensing of Securities Trading Systems, as per below:
|Code||Licence||Section of Act||Processing Fee||Fixed Annual Fee||Variable Annual Fee|
|SEC – 1.3||Securities Trading Systems||S 11||250, 000||Minimum of 500,000||To be determined by the Commission|
The Securities (Solicitation) Rules 2020 have been issued to specify that Solicitation under Section 31 of the Securities Act shall not apply to a holder of a Trading Securities System Licence.
The Securities (Licensing) Rules have also been amended to exempt a holder of a Trading Securities System Licence from the requirements of rule 10A. which pertains to obligations of investment dealers with respect to sale or purchase by or on behalf of an investor of securities in Mauritian companies or other Mauritian entities listed on a securities exchange licensed by the FSC; execution of any investment transaction if, to its knowledge, having made all reasonable enquiries would result in a breach of any restriction provided under any relevant legislation and carrying out reasonable steps to determine whether a proposed investment transaction is to be made by or on behalf of a foreign investor.
For entities registered as Reporting Issuers under Section 86 of the Securities Act and Rule 3 of the Securities (Disclosure Obligations of Reporting Issuers) Rules 2007, submissions should be completed by the dates outlined in the table below:
|Accounts Type||Year End||Stipulated statutory time-frame for submissions (under the Section 88 of the Securities Act)||No administrative penalties will be charged provided submission is effected by:|
|1.||Annual Reports/Audited Financial Statements||31 January 2020||Not later than 90 days of its balance sheet date||31 July 2020|
|29 February 2020|
|31 March 2020|
|2.||Quarterly Financial Statements||29 February 2020||Not later than 45 days after the end of each quarter||15 May 2020|
|31 March 2020||Not later than 45 days after the end of each quarter||15 June 2020|
Entities, other than Reporting Issuers, licensed and authorised by the Commission
For entities, other than Reporting Issuers, licensed and authorised by the FSC submissions should be completed by the dates outlined in below table:
|Accounts Type||Year End||Stipulated statutory time frame for submissions (as applicable under the Relevant Acts or FSC Rules)||No administrative penalties will be charged provided submission is effected by:|
|1.||Annual Reports/Audited Financial Statements||31 October 2019||Not later than 6 months of its balance sheet date||30 June 2020|
|30 November 2019||Not later than 6 months of its balance sheet date|
|31 January 2020||Not later than 90 days or 3 months of its balance sheet date|
|29 February 2020||Not later than 90 days or 3 months of its balance sheet date|
|2.||Interim Financial Statements||29 February 2020||Not later than 45 days after the closing date of the interim period specified in FSC Rules||30 June 2020|
|31 March 2020||Not later than 45 days after the closing date of the interim period specified in FSC Rules|
Revocation of the Order of the temporary cessation of operations of the Stock Exchange of Mauritius Ltd.
The Financial Services Commission (“Commission”) refers to the Order issued by the Commission on 2 April 2020, ordering the Stock Exchange of Mauritius Ltd (“SEM”) to remain closed and cease securities transactions as from 2 April 2020 until further notice.
Having taken cognizance of and being satisfied with all the measures taken by the SEM for an orderly resumption of the market, the Commission is of the opinion that the SEM can reopen and resume securities transactions.
In this context, notice is hereby given that the order dated 2 April 2020 issued by the Commission has been revoked with effect from 3 April 2020 and the SEM has been informed accordingly.
The SEM has also been directed pursuant to section 133(5) of the Securities Act 2005, to inform all of its market participants of the measures it has put in place for an orderly resumption of the market and mitigation of any risks arising therefrom.
Filings at the Commercial/Bankruptcy Division of the Supreme Court
Deadlines for filing of pleadings and deadlines for cases to be heard before the Commercial/Bankruptcy Division of the Supreme Court are waived until further notice.
Filings at the Registrar General
The Registrar General’s department remains engaged by providing remote online support in the processing of loan applications. Any deed witnessing a loan may be submitted online to the Registrar General’s department. The payment of related duties and taxes shall be made through e-payment. This initiative aims to provide facilities to the public, particularly to financial institutions, to ensure business continuity. These online services are available through the Mauritius e-Registry system. The Mauritius e-registry system also caters for other online services ranging from submission of documents, taxation, payment to retrieval of registered documents.
THE MAURITIUS REVENUE AUTHORITY
No penalty or interest for late submission of return/statement or late payments.
The Mauritius Revenue Authority (MRA) informs taxpayers that NO penalty or interest for late submission of return/statement or late payment will be charged to those who are unable to submit their return/statement, or effect payment on or before the deadline, for any for the following cases:
- Payment of customs duty, excise duty and taxes under the Deferred Payment Scheme for goods cleared during the month of February 2020 and for which payments were due by 10 March 2020; and
- Bills of Entry not submitted within the statutory time frame as provided under Section 9A (1) of the Customs Act.
Returns/statements and payments due by 31 March 2020:
- Submission of CPS Statement & Payment of Tax electronically for quarter ending 31st December 2019 by individuals;
- Submission of APS for quarter ending 31st December 2019 by companies;
- Submission of return and Payment of Tax by companies with accounting year ending in September 2019;
- Remittance of Passenger Fee/Passenger Solidarity Levy;
- Joint electronic PAYE & NPF/NSF return and electronic payment of tax withheld;
- Submission of VAT Return for February 2020 electronically and Payment of Tax electronically; and
- Monthly Return of TDS and electronic payment of Tax deducted.
Returns and payments due on 20 March 2020 by operators of Limited Pay-Out Machines, Casinos, Gaming House, Coin Operated Machines and Amusement Machines.
Returns and payments due on 20 March 2020 and 27 March 2020 by Betting operators (Bookmaker conducting fixed odds betting on foreign football, Local pool promoter and Agent of a foreign pool promoter).
For those taxpayers who are in a position to submit their tax returns, the MRA wishes to inform them that they can have recourse to its e-Services to file their returns and effect payment, if any.
The head-office of the MRA at Ehram Court, Cnr S. Virgil Naz & Mgr Gonin Streets, Port Louis, is closed to the public.
For tax matters, queries may be emailed on firstname.lastname@example.org or by calling MRA on 207 6000.
For customs matters, queries may be emailed on email@example.com or contact Team Leader, Mr. Naden Vencatachellum, on mobile No. 5 259 6950. A team of MRA officers is working from their workplace or from home to ensure a smooth running of the core services.
All work permits that will expire this year will be extended automatically up to 31 December 2021.
Following the introduction of the Wage Assistance Scheme for employers, employers affected by Covid-19 may, after payment of salaries, apply to the MRA for financial support under the scheme.
Self-employed persons who have suffered a loss of revenue as a consequence of the lockdown in the fight against Covid-19, may apply to the MRA to assist through the Self-Employed Assistance Scheme (SEAS).
Introduction of the Anti-Money Laundering and Combatting the Financing of Terrorism (Miscellaneous Provisions) Bill 2020
The Anti-Money Laundering and Combatting the Financing of Terrorism (Miscellaneous Provisions) Bill 2020 (Bill) was read for the first time in the National Assembly on 23 June 2020. The object of the Bill is to bring additional fundamental reforms in the financial services sector for ensuring closer compliance with recommended international best practices and norms of the Financial Action Task Force (FATF) by amending various enactments for strengthening the existing legal provisions relating to combating money laundering and the financing of terrorism.
There have been changes to various sections of the Companies Act to reinforce the concept of beneficial ownership, including identification and record keeping. Changes have also been brought to the Financial Services Act, one of which is the express determination on which the FSC will base itself to carry out onsite inspections. The Financial Intelligence and Anti-Money Laundering Act has also been amended to include new provisions on the obligations and manner in which Suspicious Transactions Reports (STRs) are filed.
The test for reasonable suspicion has been amended so that the term “suspicious transaction” means a transaction which gives rise to a reasonable suspicion that it may involve (a) the laundering of money or the proceeds of any crime or (b) funds linked or related to, or to be used for, the financing of terrorism or proliferation financing or, any other activities or transaction related to terrorism as specified in the Prevention of Terrorism Act or under any other enactment, whether or not the funds represent the proceeds of a crime.
Amendments have also been brought to the threshold for financial transactions applicable to certain members of a relevant profession as defined under the FIAMLA from ‘financial transactions equal to or above 100,000 rupees’ to ‘a total cumulative financial transaction equal to or above 20,000 rupees, on any given date’. This amendment concerns persons licensed under the Gambling Regulatory Authority.
Changes have also been brought to the Prevention of Corruption Act, to provide for fines where an offence is committed by a legal person. Any legal person who commits an offence under this Part shall, on conviction, be liable to a fine not exceeding 10 million rupees.
2. Can searches be conducted?
Searches at the Registrar of Companies
No searches at the premises of the RoC. Only online searches for basic information are available through the MNS system.
Searches at the Registrar General
No physical searches can be undertaken at the premises of the Registrar General during the lockdown period.
Due to restricted staff and service within the Judiciary for the lockdown period no physical or online searches can presently be undertaken.
3. Certificates of current standing – if and how these are being conducted
This service is currently not available.
4. Other searches – how are these being conducted?
See section above.
5. Court sessions and position (including filings and hearings)
During the first week following the present confinement, i.e. from 2nd to 5th June 2020, there will be no court sittings at any Court, except for the Supreme Court, which will hear the cases as scheduled in its Weekly Cause List as from the 2nd of June 2020. The first weekly Cause List of the cases scheduled before the Supreme Court as from 2nd of June 2020 will be posted on the website of the Supreme Court on Friday 22 May 2020.
Court sittings in all the other courts shall resume as from 8 June 2020. Access to all the other courts including the Family Division of the Supreme Court, the Intermediate Courts, the Industrial Court and the District Courts will during the first week of June be restricted and limited only to the attending of urgent cases in order to ensure an efficient crowd control.
The courts will sit at staggered hours, thus affording greater flexibility for the hearing of cases. There will generally be two hearing sessions – morning session and afternoon session – at almost all the courts.
The courts will as much as possible make use of telecommunication technologies in order to reduce the physical presence of practitioners and/or parties in court.
All cases which could not be heard before the Supreme Court from 20 March to 31 May 2020 due to the COVID-19 curfew, will be re-scheduled for hearing. All communication in respect thereof will be made via e-mail and phone as indicated at Table A for the Family and Commercial Divisions of the Supreme Court and at Table B for all other cases before the Supreme Court.
As from 2nd of June 2020 and until further notice:
- there will be no trial of cases involving the hearing of witnesses except before for the Commercial and Family Divisions;
- there will be no Assize/Jury trial or hearing before the Criminal Division of the Supreme Court except in cases where there is a guilty plea.
In cases where a settlement/agreement has been reached between the parties or where the claimant no longer intends to go ahead with his claim/application, the matter may, upon joint request, be called before the Court for an earlier disposal of the case.
Prior to the hearing of any matter, counsel and attorneys are advised to communicate their briefs and written submissions by e-mails or other technological means to the Judge/Court as may be directed by the Judge/Court. Practice Directions may be issued governing the electronic submission of documents/briefs/written submissions.
On the hearing dates, counsel and attorneys are requested to attend court at least 30 minutes prior to the time scheduled for Hearing in order to liaise with the Judges’ Secretaries and Court Registrars with a view to ensure that documents and pleadings have been duly filed and the briefs are in order for the hearing to start.
6. Travel restrictions
Mauritian borders are now opened for all passengers (local and international) arriving on the territory subject to the incoming passengers possessing the following documents:
- a certificate of a negative COVID–19 PCR test administered between 5 and 7 days prior to the date of boarding at the last point of embarkation;
- a valid air ticket to Mauritius;
- proof of purchase of a travel package including accommodation, on a full board basis, at a designated hotel for a mandatory 14-day in-room quarantine; and
- a duly filled in Public Health Covid-19 Passenger Health Self-Declaration Form and Passenger Locator Form (both available at www.mymauritius.travel)
Attention is also drawn to the fact that:-
- any incoming passenger will have to undergo PCR tests on day of arrival, day 7 and day 14 following arrival: and
- if a PCR test reveals that a person is COVID-19 positive, he shall be transferred to a public medical institution for treatment.
- Non-Mauritians must pay a fee of Rs13,500 (approximately USD 400/-) per person to their hotel to cover for Ministry of Health costs (including three PCR tests administered in Mauritius) when purchasing their travel package.
The quarantine period in Mauritius has been extended from 15 January 2021 to 15 February 2021. This also entails the prohibition of entry of aircrafts and ships in Mauritius until 15 February 2021, except for those aircrafts and ships as may be approved by the Prime Minister.
Any person having resided in United Kingdom or South Africa or with a history of travel to and from United Kingdom and South Africa within the last 15 days will not be allowed entry or transit in the Republic of Mauritius until 31st January 2021.
7. Other Temporary Regulatory Measures – updated
Bank of Mauritius Covid-19 Support Programme offers additional measures to support economic operators, including SMEs, households and individuals impacted by COVID-19
Following the introduction of numerous measures starting March 2020 by the Bank of Mauritius (BoM) under a Support Programme to assist economic operators, SMEs, households and individuals impacted by COVID-19, the BoM has borne the interest payable on outstanding household loans with commercial banks for the period 1st April 2020 to 30th June 2020 and a moratorium of 6 months on capital repayment for existing loans for economic operators that are being affected by COVID-19 was given.
The BoM has extended the moratorium on loans to the 30th of June 2021. Several other measures falling under the Support Programme have also been extended to the 30th of June 2021, including the Special Relief Amount of Rs5 Billion, which was made available through banks to meet cash flow requirements of economic operators impacted by COVID-19, and to safeguard business continuity.
The BoM has also announced that it will again bear the interest payable on the outstanding household loans with commercial banks, for the period 1st January 2021 to 31st March 2021.
The Bank of Mauritius also stated that it “stands ready to take any additional appropriate measure to maintain the stability of the financial system and mitigate any adverse impact on economic growth and development, consistent with its statutory responsibilities.”
The Courts (Amendment) Bill
The Courts (Amendment) Bill and the Real Estate Agent Authority Bill read for the third time in the National Assembly on 18 August 2020
The Courts Act is being amended to provide for setting up a Financial Crimes Division and Land Division within the Supreme Court, a Financial Crimes Division within the Intermediate Court and to empower the Chief Justice to set up such other divisions within the Supreme Court and the Intermediate Court, to deal with civil and criminal business.
FINANCIAL CRIMES DIVISIONS
These Divisions are being set up to ensure that financial crime cases are fast-tracked, in line with recommended international best practices and norms of the Financial Action Task Force.
The Land Division will have original jurisdiction to hear and determine any matter regarding ownership of land and property rights, other than any matter which falls under the jurisdiction of the Intermediate Court or District Court under any enactment, and such other matters as directed by the Chief Justice.
The Real Estate Agent Authority Bill
The Real Estate Agent Authority Bill provides for the establishment of the Real Estate Agent Authority, which will regulate and control the business activities of real estate agents, land promoters and property developers. The key duties of the Real Estate Agent Authority will be to:
- register real estate agents, including land promoters and property developers;
- exercise and maintain discipline in the business activities of real estate agents, including business activities of land promoters and property developers; and
- promote transparency, accountability and integrity in the business activities of real estate agents, including business activities of land promoters and property developers;
- protect and assist persons engaged in real estate transactions with real estate agents, including land promoters and property developers;
- cooperate with the Financial Intelligence Unit under the Financial Intelligence and Anti-Money Laundering Act and other relevant public sector agencies to assist in the detection and prevention of money laundering and the financing of terrorism and proliferation within the real estate sector;
These duties will ensure further compliance with recommended international best practices and norms for combating money laundering and the financing of terrorism and proliferation.
The Finance (Miscellaneous Provisions) Bill 2020 has been approved with amendments on 07 August 2020
Different dates have been set for the coming into force of the different legislative changes being brought by the Finance (Miscellaneous Provisions) Act 2020.
The temporary measures which were introduced to the Companies Act during the COVID-19 period will be no longer in force as from 01 January 2020.
Temporary measures introduced in the Insolvency Act during the COVID-19, which pertain to winding up and creditors meetings will no longer be applicable on 02 September 2020.
As of 02 September 2020, the requirement for a company to pay its debt, enter into comprise or otherwise compound with the creditor, or give a charge over its property to secure payment of the debt, as provided by Section 180(d) of the Insolvency Act, shall now be done within one month – the moratorium of 2 months given during the COVID-19 period will no longer stand as of 02 September 2020.
All other measures relating to amendments to the Companies Act and the Financial Services Act are in operation since 07 August 2020.
The Financial Services Commission of Mauritius publishes Enforcement Manual
The Financial Services Commission of Mauritius (FSC) has published its Enforcement Manual (Manual) which covers the FSC’s approach to enforcement as a credible deterrent tool and the exercise of its enforcement powers. It sets out general policies and procedures which the FSC uses as guidance in detecting, investigating, and taking actions in cases where the relevant laws and /or any other relevant guidelines have been breached.
The Enforcement Manual has been issued with the intent of increasing transparency, certainty, and consistency, and, more generally, to promote the rule-of-law principles that underpin all of the FSC’s enforcement actions.
The FSC’s enforcement approach has three broad objectives:
- early detection of misconduct and breaches of law;
- the reduction of systemic risk through effective deterrence; and
- the protection of consumers.
The focus is on addressing deficiencies which are considered as strategic priorities:
- Anti-Money Laundering;
- Corporate Governance;
- Market abuse.
The objective of Enforcement by the FSC is to investigate licensees or persons who ought to have been licensed, who have contravened or are contravening or likely to contravene, and/or to investigate possible breach(es) to the applicable laws and prescribed practices, following which appropriate enforcement actions will be taken by the FSC.
To ensure consistency in the determination of appropriate enforcement actions, the breaches are divided into three categories (i) Minor breaches (1-5% of gross income) (ii) Moderate breaches (6-10% of gross income) and (iii) Major breaches(11-15% of gross income). The FSC will identify the category in which the breach falls based on its seriousness and the administrative penalty will be calculated on a percentage of the relevant gross income of the licensee.
The FSC ‘s penalty-setting regime is based on the principles set out below, in the following order of importance:
- Discipline: The amount of the AP will encompass an appropriate penal element.
- Disgorgement: The amount of the AP will seek to ensure that a licensee does not directly benefit financially from any breach(es) or wrongdoing(s) whether in terms of profit made or loss avoided. Thus, the amount of the AP imposed will take account of any such financial benefit to the extent possible or practicable.
- Deterrence element: The AP will comprise of an element which serves to deter the licensee and others in the industry from committing such wrongdoing.
The FSC will make use of the different investigation methodologies, as provided for in the Enforcement Manual to investigate any contravention (past, present or potential). Some of the investigative powers of the FSC include:
Sending a notice of investigation – Usually, the persons under investigation will be notified at the appropriate time. The notification will usually include:
- The formal decision to investigate with the grounds for the investigation;
- The formal appointment of the investigator;
- The fact of the team who will assist the investigator; and
- The date of the commencement of the investigation.
The Notice of an Investigation would usually be addressed to the Board of Directors, if any, of the entity under investigation.
In certain circumstances, there may be compelling reasons not to give notice of an investigation. The reasons may include, but are not limited to, where there are grounds to believe that documents may be tampered with or destroyed or where investors’ funds may be at risk or when the investigation may otherwise be prejudiced or because of the urgency of the situation.
Evidence – In addition of documents in either hard or soft copy, FSC may ask questions of persons under investigation or witnesses. Investigators may require a person to answer questions in the following ways:
- Compelled interview – answering of questions under oath- it is intended that compelled
- interviews will be tape-recorded going forward
- Voluntary interview.
The investigator can administer oath, affirmation or declaration to a person who is to be interviewed. The point of an oath or affirmation is to impress on the person the importance of truthfulness.
The investigator can also summon any licensee, or its officers, employees and associates, or any witness necessary for the conduct of the investigation.
Persons under investigation have a duty to respond to requests for information and documents in a timely manner and comply with the deadlines set. Careful consideration will be given to any questions that are not answered and if there is an explanation (a reasonable excuse or reasonable cause) for such a refusal.
Following the conclusion of investigations, the FSC is also empowered to impose penalties and other such remedial actions.
A person who intentionally obstructs and/or gives false or misleading information; and/or fails to answer questions; and/or is deliberately reckless as to accuracy of the information he/she provides to an investigator, in a material particular, may be guilty of an offence. In some circumstances he/she may on conviction be liable to a fine not exceeding 500,000 rupees and imprisonment for a term not exceeding 5 years.
In addition to injunctions, suspension and revocation of licenses, the FSC has the power to give directions to a licensee/person, including an officer of a licensee to do a specified act, or refrain from doing a specified act, as part of an enforcement action.
Directions may also take the form of a report prepared by a person approved by the Commission on the licensee’s affairs, at the expense of the licensee or remove or take steps to remove a specified officer or employee of the licensee from office or employment, or ensure that a specified officer or employee of the licensee does not take part in the management or conduct of the business of the licensee except as permitted by the Commission.
The FSC also has the power to issue cease trade orders under the Securities Act. The FSC may order a securities exchange to be closed for securities transactions. This may happen where it is thought that the orderly transactions on a securities exchange can be or is affected by an emergency or a natural disaster or an economic or financial crisis. The FSC may also order any person to cease any activity in respect of trading in securities or any specific securities, where the Commission has reasonable suspicions that there may be a breach adversely affecting the interest of investors.
The FSC is of the view that the orderly transaction of business on the securities exchange is being or is likely to be adversely affected due to the occurrence of the total lockdown.
Given that the total lockdown is one that is captured by the provisions of section 133(2) of the Securities Act 2005 and having been satisfied that the requirements of section 133(3) of the Securities Act 2005 are met, the FSC has exercised its powers under section 133(1) of the Securities Act 2005 and ordered the Stock Exchange of Mauritius Ltd (SEM) to cease all securities transactions, effective as from 27 March 2020 at 20:00 local time and shall lapse on 2 April 2020 at 20:00 local time.
The SEM has also been directed to inform all of its market participants of measures it has put in place for an orderly resumption of the market.
With a view to ensuring continuity in the provision of banking services by domestic commercial banks, the Bank of Mauritius has decided that banks will keep operating in the current context.
Key branches, which will be in strategic locations to ensure a fair geographical coverage, will, as from 26 March 2020, be open to the public from Monday to Friday from 10:00 to 13:00, until further notice. These key branches will be staffed by reduced personnel and will provide basic banking services.
The internal operations and telephone-based Contact Centres of commercial banks concerned will remain operational during normal hours. A list of branches which will be open will be communicated to the public by the respective banks.
Measures from the Bank of Mauritius:
Special Foreign Currency (USD) Line of Credit
- The Bank of Mauritius is introducing a Special Foreign Currency (USD) Line of Credit targeting operators having foreign currency earnings, including SMEs.
- This line of credit will be for an amount of USD300 million, to be made available through commercial banks. Funds will be made available to commercial banks at 6-month USD Libor for this facility.
- This line of credit will be available from 24 March 2020 until 30 June 2020 and repayment will be over a period of two years from the effective date of disbursement.
- Drop of key Repo Rate from 3.35% to 2.85% implying a reduction in lending rate on bank loans.
- The introduction of a Special Relief Programme of MUR 5 billion through commercial bank loans from 16 March to end July 2020 enabling businesses to meet their cash flow and working capital requirement. The loans will be with a maturity of two years at an interest rate of 2.5% p.a. inclusive of a six months moratorium on capital and interests payments.
- Banks will provide a moratorium of six months on capital repayment for existing loans for those enterprises that are being affected by COVID-19.
Support to households
- Mauritian households impacted by COVID-19 may make a request to their commercial banks for a moratorium of six months on capital repayments on their existing household loans from the 1 April 2020.
- In addition, for households earning a combined monthly basic salary of up to Rs50,000 the Bank of Mauritius will bear the interest payable for the period 1 April 2020 to 30 June 2020 on their outstanding household loans with commercial banks.
- For the purpose of these measures, household loans include all existing rupee loans which have been disbursed to a Household by a commercial bank. Overdrafts, credit cards and other credit facilities are not included.
- The terms and conditions will be made available through commercial banks from 30 March 2020.
The Redundancy Board has issued a Communique dated 7 April informing employers and employees that in view of the prevailing situation of the COVID-19 pandemic, all the cases referred to the Redundancy Board for determination would be considered on resumption of office after the current lockdown is lifted.
Automatic extension of Motor Insurance Policy
Any person who is not able to renew their motor insurance policy, which will be expiring during the confinement period, his/her existing insurance policy will be held covered (automatically extended on expiring terms) until 30 April 2020.
However, should an insured decide not to opt for this automatic extension of cover as applicable during the confinement period, he/she shall communicate same by mail or phone confirmed with a SMS to his/her insurer prior to the date of expiry of his/her insurance policy.
A person driving a vehicle with an automatically extended insurance policy will need to keep his/her existing vignette on his/her vehicles for inspection by Police.
The Prevention and Mitigation of Infectious Disease (Coronavirus) Regulations 2020 (‘The Principal Regulations’) has been amended by Prevention and Mitigation of Infectious Disease (Coronavirus) (Amendment No. 2) Regulations 2020.
Regulation 14 of the principal regulations is amended by revoking paragraph (4) and replacing it by the following paragraph:
(4) Paragraph (1) shall not apply to :
(a) a person who has to avail himself of medical treatment, or procure essential supplies, food stuff, medicine or any other item essential for his or his family’s subsistence or livelihood;
(b) a Judge or Magistrate for the purpose of attending Court;
(c) a barrister or an attorney whose services have been retained by a person to attend a police station, place of detention or Court;
(d) a medical practitioner for the purpose of attending a hospital, private medical institution or patient in need of urgent medical care;
(e) a pharmacist for the purpose of attending his place of work.
These regulations shall come into operation on 26 April 2020.
other regulatory updates
The Cabinet has taken note that the Minister of Finance, Economic Planning and Development would promulgate:
(a) the Companies (Amendment of Schedule) Regulations 2020. The Fifth Schedule of the Companies Act was amended in 2019 such that a notice of general meeting is sent 21 days before a meeting, instead of 14 days previously to give more time to shareholders; and
(b) the Insolvency (Administration) (Equal Treatment to Classes of Creditors) Regulations 2020. Section 232 of The Insolvency Act was amended through the Business Facilitation (Miscellaneous Provisions) Act 2019 to ensure that creditors are categorised into classes for the purpose of voting in a reorganisation plan and creditors in each class vote independently.
These regulations are being made, inter alia, to improve the performance of Mauritius in the context of World Bank Ease of Doing Business Report.
Regulations made by the Minister under section 360(1)(b) of the Companies Act
The Companies (Amendment of Schedule) Regulations 2020 amends Item 2 of the Fifth Schedule of the Companies Act 2001.
The Fifth Schedule, which contains provisions for the proceedings at meetings of shareholders, has been amended so that Notice of Meetings will now also include:
- Written notice of the date, time and place instead of only written notice of the time and place;
- A notice shall also be accompanied by a detailed agenda together with any other document relevant to the meeting.
The Regulations came into operation on 30 April 2020
THE INSOLVENCY ACT
The Insolvency (Administration) (Equal Treatment to Classes of Creditors) Regulations 2020 (Regulations) applies to Mauritian companies which are under voluntary administration. The Regulations stipulate that creditors should be grouped into classes specified under the Insolvency Act. Each such class shall vote separately on matters for which each class is required to vote. The Regulations also confirm that an administrator must accord equal treatment to creditors who fall within the same class.
In accordance with section 232(8) of the Insolvency Act, the notice of creditors’ meeting which an administrator is required to issue, must be in writing and should confirm the following details:
- the administrator’s postal, email and street addresses;
- the names of the related companies in respect of which the joint meeting is to be held;
- the creditor to whom the notice is sent may object to the joint meeting by a written objection to the administrator at the latter’s contact details at paragraph (a) above; and
- that unless the creditor objects in accordance with the notice, the creditor will be taken to have agreed to the joint meeting.
The Regulations came into operation on 30 April 2020.
US FOREIGN ACCOUNTS TAX COMPLIANCE ACT (FATCA)
The Mauritius Revenue Authority (MRA) informs all stakeholders involved that, in view of the current exceptional situation caused by the COVID-19 pandemic, the due date for the transmission of FATCA information to the MRA, regarding the filing obligations under FATCA, has now been extended to 30 September 2020.
ASSESSMENT REVIEW COMMITTEE
The public is hereby informed that, for health security reasons and in order to avoid unnecessary gathering of the public on the premises of the Committee, all cases already scheduled up to 29 May 2020 are postponed.
All cases will be rescheduled in line with established precautionary measures and all concerned will be informed about the rescheduled cases by post.
8. Implications for economic substance compliance and residency
The FSC will show flexibility towards licencees which may face challenges in meeting their forthcoming reporting obligations including regulatory filings, on a case by case basis.