The COVID-19 (Miscellaneous Provisions) Act 2020 brings key changes in Mauritius

The Interpretation and General Clauses Act recognise that deadlines that have been reached during the COVID-19 period should be extended, some through Regulations.

The Covid-19 Period

Several amendments brought about by the COVID-19 Act refer to events which have taken place during or shortly after the ‘COVID-19 period’.  The Interpretation and General Clauses Act has been amended with effect from 23 March 2020 and defines the ‘COVID-19 period’ as the period starting 23 March 2020 and ending on 01 June 2020 or on such later date as the Prime Minister may prescribe by way of regulations made under the Act.

During the COVID-19 period, meetings of statutory corporations (or of their controlling body, committee or subcommittee) may be held either by a number of members who constitute a quorum being assembled together or by means of audio or visual communication provided all participating members constitute a quorum and can hear each other simultaneously. A written resolution signed or assented by all members shall be as good and valid as if it has been passed at a duly convened meeting. Such resolution may consist of several documents, including fax, email or other means of communication.

The Courts Act

The Courts Act is amended with effect from 23 March 2020 to provide the Chief Justice wide powers to devise rules to ensure the smooth administration of justice within any Court and to regulate the practice and procedure before any Court during and after the COVID-19 period.

To that effect, the Chief Justice:

• May determine, during the COVID-19 period, which judicial services are essential and shall be provided by any Court – after the COVID-19 period lapses, determine which additional services shall be provided by any Court.
• The Chief Justice shall also regulate the practice and procedure as he considers appropriate before any Court during and after the COVID-19 period.
• In addition to the rules to regulate the practice and procedure, the Chief Justice may limit the number of persons who may be present in chambers or in a courtroom, or call or hear a matter remotely by means of a telephonic, an electronic or any other communication facility as he may approve in writing.
• The Chief Justice may give such practice directions as he thinks fit to regulate the practice and procedure before any Court and not only before the Supreme Court.

The Companies Act

The COVID-19 Act brings several amendments with effect from 23 March 2020 to the Companies Act during the COVID-19 period, or such further period, as the Registrar of Companies (‘ROC’) may determine after the COVID-19 period lapses.

Various timeframes in relation to Annual Meetings of shareholders have been amended. The holding of an Annual Meeting which was previously 6 months within the balance sheet date, has been extended to not later than 9 months or not later than such further period as the ROC may determine.

The requirement for a company to hold an Annual Meeting once in a year and not later than 15 months after the previous Annual meeting has been waived.

The ROC can issue such Practice Directions as may be necessary to determine the manner in which an Annual Meeting is to be held during the COVID-19 period and such further period, as the ROC may determine.

The duties of a director, to convene a board meeting and resolve that the company should be placed in liquidation or administration where he believes that a company is unable to pay its debts as they fall due, shall not apply during the COVID-19 period or such further period as determined by the ROC after the COVID-19 period lapses.

The Income Tax Act

Amendments brought to S111Z Liability to COVID-19 Levy – Applicable for employers who have benefited from the Wage Assistance Scheme:

• Year of assessments extended from 1 July 2020 and 1 July 2021 to also include 1 July 2022, as the case may be;
• Levy can be payable in two tranches (year of assessment commencing on 1 July 2021 and year of assessment commencing on 1 July 2022);
• Levy remains unchanged, i.e., total amount paid to the employer under the Wage Assistance Scheme or 15 percent of his chargeable income, whichever is lower.
• However, some relief given with the addition of the second year of assessment, where the levy applicable will be the total amount paid to the employer under the Wage Assistance Scheme as reduced by the amount of levy payable for the year of assessment starting on 1 July 2021 or 15 percent of his chargeable income, whichever is lower.

The Assessment Review Committee

Any delay relating to proceedings before the Assessment Review Committee which expires, or falls wholly or partly, during the COVID-19 period is suspended and the statutory delay will restart from the day following the last day of the COVID-19 period. If the statutory delay expires, or falls wholly or partly, during a period of 21 days after the COVID-19 period lapses, the statutory delay is suspended and will restart from the day following the last day of the 21 day period.

An extension of 2 months after the COVID-19 period lapses is granted for making an assessment, decision, determination, notice or claim if the time imposed to make the assessment, decision, determination, notice or claim expires, or falls wholly or partly during the COVID-19 period. If the time imposed expires or falls wholly or partly during a period of 30 days after the COVID-19 period lapses, an extension of 2 months after those 30 days lapse is granted to make such assessment, decision, determination or notice of claim.

The Registration Duty Act

The Registration Duty Act is amended with effect from 23 March 2020 so that no surcharge is payable if the timeframe for the payment of duties on registrable documents within the Sixth Schedule to the Act expires or falls wholly or partly during the COVID-19 period or such period as may be specified after the COVID-19 period lapses.

The amendments also provide for an extension of time to object to the valuation of transfer of shares.

Consequently, if the time limit of 15 days currently provided expires or falls wholly or partly during the COVID-19 period, the objection may be made by registered post not later than 30 days after the COVID-19 period lapses; if the time limit expires 10 days after the COVID-19 period lapses, the person may object to the notice by registered post not later than 30 days after the period of 10 days lapses.

The objection should normally be dealt within a period of 4 months from the date the objection is made; if the 4-month period expires or falls wholly or partly during the COVID-19 period, the objection shall be dealt with not later than 2 months after the COVID-19 period lapses.

If the 4 month-period expires or falls wholly or partly during a period of one month after the COVID-19 period lapses, the objection shall be dealt with not later than 2 months after the period of one month lapses.

The Landlord and Tenant Act

The delay provided under the COVID-19 Act for repayment of rent in arrears apply to all premises, whether business or residential premises, let under the Landlord and Tenant Act or under any other enactment.

The Passport and Immigration Act

The Passports Act is amended with effect from 23 March 2020 to include a new section on the extension of the validity of the visa during the COVID-19 period.

Visas expiring during the COVID-19 period will remain valid for a period of 30 days after the COVID-19 period lapses.

Where visas expire during a period of 21 days after the COVID-19 period lapses, the visa will remain valid for a period of 30 days after the period of 21 days lapses.

The Immigration Act is amended with effect from 23 March 2020 to include a new section on the extension of the validity of a permit during the COVID-19 period.

Permits expiring during the COVID-19 period will remain valid for a period of 30 days after the COVID-19 period lapses.

Where permits expire during a period of 21 days after the COVID-19 period lapses, the permit will remain valid for a period of 30 days after the period of 21 days lapses.

A person who has been issued a permit under section 9 of the Immigration Act (residence permit/permanent residence permit) may apply for an extension or variation of the permit whilst being in Mauritius.

The Workers’ Rights Act

The main amendments purport to:

• The withholding of 15 annual leave by the employer during an 18-month period, that is, from 1 June 2020 to 21 November 2021. For those who have worked during the confinement period, they will continue to benefit from the 20 days annual leave for the period Jan 2020 to December 2020.
• For part time workers, the annual leave that the employer can withhold is pro-rated according to the number of days of work that the part time worker performs compared to a comparable full time worker.
• The delay in payment of contribution of Portable Gratuity Fund. Notwithstanding the delay of the contribution to the Portable Gratuity Fund, employees going on retirement are entitled to payment of their full gratuity for the whole length of service.
• The suspension of the payment of night shift allowance which will allow reallocation of financial resources for the survival of enterprises and preserving employment. However, in order not to demotivate any worker, employers are encouraged to arrange shifts so as to allow fair rotation among workers
• The grant of paid time-off to employees instead of being paid for extra work. If the worker has not been granted paid time-off, his employer will be required to pay any remuneration due for extra work.
• The refund of financial assistance provided by Government. Companies will have to refund the assistance granted to them in case of unfair termination of employment for economic reason and will be required to pay severance allowance equal to three months of remuneration per year of service. Termination is, however, still possible on grounds of misconduct, provided that the procedures under section 64(2) of the Workers’ Rights Act, 2019 (the “WRA”) are followed.

Section 17A of the WRA has been introduced to formally enable an employer to require any employee, irrespective of his remuneration, to work from home with prior notice of at least 48 hours given to the employee. Additional regulations may be made in respect of working from home.

An employer who has received financial assistance under the Wage Assistance Scheme, or any other financial assistance that is paid to the employer by the state or an agent of the state, is not entitled to terminate the employment of any employee during any month in respect of which the employer has received such financial assistance. Termination is, however, still possible on grounds of misconduct, provided that the procedures under section 64(2) of the WRA are followed.

The provisions, with respect to flexitime under section 22 of the WRA, have been amended to impose on the employer an obligation to give 48 hours prior notice before requesting a worker to work flexitime and to enable a worker to request to work flexitime without limiting such requests to situations where the worker has to care for a child below school age or with an impairment.

Employers have been exempted from paying the night shift allowance (15% of the worker’s basic wage) for night shifts performed between 23 March 2020 and for such further period as may be prescribed.

Any labour dispute referred to the Conciliation and Mediation Commission between 23 March and 1 June 2020 or pending before the Commission as at 23 March 2020 in respect of employers operating in the civil aviation and airport, including ground handling and ancillary services, air traffic control, health, hospital, port sectors will be transferred to the Employment Relations Tribunal for determination within 30 days.

The procedural agreement between employers operating in the transport, customs, electricity, hotel services, radio and television, refuse disposal, telephone, transport of passengers and goods and water supply sectors and the trade union ought to provide the number of workers, their occupations and departments for a minimum service during any strike or lock-out. Before proceeding to a strike or lock-out, the trade union or employer has to ensure that the minimum service is put into effect.

In respect to the sectors listed above, the minister is empowered to exempt employers in those sectors from the application of section 67 of the WRA, that is, a new employer has no obligation to consider a worker to be on continuous employment following a transfer or a takeover of the previous employer’s trade or business. Where such an exemption is allowed, the minister may make provisions for the terms and conditions on which the worker may be offered employment by the new employer upon the transfer of undertaking or takeover of the previous employer’s trade or business.

Employers engaged in the sectors listed above may be exempted from the procedure applicable under section 72 of the WRA, and will instead be subject to section 72A of the WRA which now provides, inter alia, that:

• no negotiations need to be held with the trade union or workers’ representative to find alternatives to the said reduction or closure;
• an employer is required to provide 15-days prior notice to the Redundancy Board before the said reduction or closure;
• if reasons for reduction/closure are justified, the Redundancy Board may either order payment of 30 days’ wages as indemnity in lieu of notice, or upon the request of the employer and with the consent of the employee, order that the employee be placed on leave without pay for the period identified by the employer in his notification subject to the condition that resumption of employment will be on new terms and conditions, including pension benefits, as may be offered to the worker before resumption of work. An employee who is placed on such leave without pay is entitled to transition unemployment benefit;
• if reasons for reduction/closure are not justified, the Redundancy Board may order payment of severance allowance at the rate of three-months’ remuneration per year of service.

Data Protection

In order to ensure that the provisions of the Data Protection Act do not impede the collection, verification and processing of personal data for the issuance of a licence, permit or authorisation, the COVID-19 Act creates, with effect from 23 March 2020, an additional exception to the compliance with the provisions of the Data Protection Act on the basis that such exception “constitutes a necessary and proportionate measure in a democratic society.”

COURT SITTINGS

During the first week following the present confinement, i.e. from 2^nd to 5^th 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 2^nd of June 2020.  The first weekly Cause List of the cases scheduled before the Supreme Court as from 2^nd 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.

SUPREME 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 2^nd 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.