Lagesse M.F. & Ors (Plaintiffs) v The Mauritius Commercial Bank Ltd & Ors (Defendants)

2021 SCJ 103

Record No.100235

FACTS

One Mr Gérald Lagesse was an employee of The Mauritius Commercial Bank Ltd(“MCB”) and was found dead of asphyxia by gagging following a robbery which took place in the main vault of MCB on 11 February 2005.

The Plaintiffs being his widow, daughter and mother claimed moral damages against MCB and claimed an amount of MUR 35 million along with interests. 

The Plaintiffs averred inter alia that MCB acted negligently, recklessly and unprofessionally and failed as an employer to ensure to its employees and more particularly to those working in the main vault a safe working environment.

The Plaintiffs contended inter alia that MCB failed to take the appropriate measures to prevent intruders from accessing the vault areas amongst others, did not have a system to prevent the robbery, did not have any security camera which would have enabled its security personnel that certain intruders penetrated the security areas of its premises, the late Mr Gerald Lagesse was not provided with sufficient training and instructions with respect to the security of the vault and the security areas.

Learned Counsel for the Plaintiffs further made it clear that the Mauritius Union Cy Ltd, Mauritius Eagle Insurance Company Limited and Swan Insurance Company Ltd, respectively Defendant No.2, Defendant No.3 and Defendant No.4, have been joined as parties to the case as a result of the insistence of MCB to put them into cause.

DECISION OF THE COURT

The plaint was dismissed with no order as to costs mainly on the following rationale:

(i)             all safety procedures and measures were scrupulously followed and applied by MCB on the material date (11.02.2005) and no evidence to the contrary was established;

(ii)           there was evidence from witnesses called by the Plaintiffs themselves that the late Mr Gerald Lagesse was an experienced bank officer and was more specifically the bank manager of several MCB branches where there were vaults and that in such capacity, he was fully conversant with the security aspects of the vault. Therefore the Plaintiffs’ complaint that Mr Lagesse was not given adequate training and required special skills remain unfounded;

(iii)          the intruders got access to the main vault not as a result of the defectiveness in the security system or the lack of aptitude of the late Mr Lagesse as contended by the Plaintiffs but rather on account of someone from the inside the bank having made it possible for the intruders to do so; and

(iv)         the preponderance of the evidence does not establish that the robbery and the death of Mr Lagesse were due to the faute, negligence and recklessness of MCB and the Plaintiffs failed to substantiate their claim for moral damages and their averments that MCB has failed in its duty to ensure a safe environment to it employees.

Attorney for Defendant No.2: Josephine Robert

Le Petit Morne Ltée & Anor (Applicant) v Le Mauricien Ltée & Ors (Respondents)

(Supreme Court – In Chambers Serial No. 1360/19)

28/09/2020

FACTS

Applicant No.1 claims to be the owner of certain plots of land situate in Le Morne and obtained a number of injunctions against local people who were allegedly interfering with its proprietary rights over the said plots of land.  

A video of full press conference which was held on 10 July 2019 by REA (a group of persons acting together under the name “Kolektif Vilaz Morne”) and the Centre for Alternative Research and Studies has been published inter alia on social media platforms of ‘Le Mauricien’.

Respondent No.1 (Veena Dholah) and Respondent No. 2 (Stephan Gua) and the local people were speakers during the said press conference and commented on a number of pending cases against them which they labelled as “persecution”.

The Applicants applied for an injunction prohibiting and restraining the Respondents from:

(i)     broadcasting a video of a joint press conference held on 10^th July 2019;

(ii)     broadcasting and/or publishing online or in any whatsoever way any document, article,  interview on and/or connected to the different cases which the Applicant No.1 has lodged in relation to its property at Le Morne;

(iii)    making any public comment and/or giving any public opinion in relation to the facts of the different cases which the Applicant No.1 has lodged and which are still pending before the Court of law.

The Applicants did not insist on the prayers sought under paragraphs (ii) and (iii). Therefore the remaining issue before the Judge in Chambers was in connection with paragraph (i) above.

MAIN ISSUES

The Applicants contended inter alia that:

(i)   the Respondent No.2’s statements during the press conference amounted to contempt of court;

(ii)   Respondents No.1 and 2 and the local people were attempting to intimidate the Court and bring the Court process into disrepute;

(iii)   the publication of the video was calculated to interfere with the course of justice in cases which the above speakers knew to be pending;

(iv)   by publishing the said videos, Respondent No.3 (Top FM Ltd) and Respondent No.4 (Le Mauricien) committed a sub judice contempt of court.

DECISION OF THE COURT

The judge held that for the Applicants to be successful, the following three elements must be present:

(i)    there is a serious issue to be tried;

(ii)    damages will not be an adequate remedy; and

(iii)   the balance of convenience is in favour of granting the injunction.

The judge was of the view that there was a serious issue to be tried because the matter discussed by the media was still being considered by the Court and therefore there was sub judice contempt of court.

As regards the issue as to whether or not damages would be an adequate remedy, the judge noted from the outset that the Applicants’ main qualm appeared to be that the video was calculated to interfere with the course of justice and tarnish the image of the judiciary by equating the legitimate recourse to legal proceedings to acts of persecution and that the Applicants have not sought any damages from the respondents in the main case. Consequently, the judge held that damages would clearly not be adequate remedy.  

With respect to the last element, the judge decided that the balance of convenience was not in favour of granting the application on the basis of the following grounds:

(i)   the Director of Public Prosecutions did not initiate any action for contempt against the respondents; and

(ii)  more importantly, if the application is not granted but where the respondents are found to have committed contempt of court in the main case against them, the Court will mete out the appropriate penalty against the respondents by taking into consideration the length of time during which the contempt was ongoing whereas if the application is granted and the main case is decided against the Applicants, the respondents would have been deprived of their constitutional right to freedom of expression.

Attorney for Le Mauricien Ltée: Josephine Robert

(Supreme Court - Record No. 6920)

FACTS

The Appellant was the Managing Director and General Manager of a company called Diesel Pro Ltd, a company owned by the Respondent and was provided two company vehicles for himself and his wife as part of his conditions of service.  

On 18 January 2010, the Appellant received a letter to attend a disciplinary committee to answer a charge relating to the Appellant’s involvement in an illegal hunting at night while using the company’s vehicle following which, the Appellant’s employment was terminated on the ground of misconduct.  

It is apposite to note that further to the above incident, the Appellant was arrested by the police and provisionally charged for the offence of illegal hunting prior to being released on bail and that a press article making reference to the said incident and identifying the company’s vehicle was published in the newspaper.

Further to the termination of his employment contract, the Appellant entered a claim for severance allowance together with indemnity in lieu of notice, which claim has been dismissed by the learned magistrate of the Industrial Court.

MAIN ISSUES

The Appellant appealed against the judgment and contended inter alia that:

1. the learned magistrate was wrong to opine that the Respondent could conclude that the Appellant committed an illegal act when it is for a Court of law to make such determination;
2. there was no evidence that an illegal act had been committed by the Appellant, the more so since he did not participate in the act of hunting himself;
3. assuming that the facts complained of by the Respondent were true, the acts of the Appellant did not constitute a ‘faute lourde’ on the following basis:
   1. there was no element of dishonesty or violence but  a simple case of hunting at night;
   2. appellant’s role was minor;
   3. the hunting was done for charitable purposes;
   4. appellant was not prosecuted.
4. the acts occurred outside working hours and outside the Respondent’s premises which did not have any effect on “le bon fonctionnement de l’entreprise”;
5. the Respondent could have taken another course of action since the Appellant had an “unblemished record” and has never received any warning from the Respondent and the incident was a minor one;
6. the act of the Appellant did not show any disloyalty against the Respondent nor was it in the nature of a competition against the company’s activities.

DECISION OF THE COURT

The Court upheld the decision rendered by the lower Court in that the acts and doings of the Appellant constituted a ‘faute grave’ which was tantamount to gross misconduct so that the employer did not have any other alternative than to terminate the Appellant’s employment.  The Appeal was therefore dismissed.

The Court’s decision was based inter alia on the following reasoning:

1. the learned magistrate relied on the general circumstances in which the offence was committed to come to the conclusion that there were sufficient elements evidencing that the Appellant participated either as an accomplice or a co-author in the illegal hunting (namely because the Appellant was apprehended by the police and it was not incumbent on the company to await the outcome of the criminal case before taking any disciplinary action against the Appellant);
2. the acts and doings of the Appellant constituted a ‘faute grave’  although it was committed outside working hours, outside the company’s premises and while he was on leave. The Appellant’s misconduct was of a nature to bring about « un trouble profond dans le fonctionnement et la morale de l’entreprise »;
3. the Appellant made an ‘usage abusif’ by using the vehicle for the commission of a criminal offence;
4. there is clear breach of trust on the part of the Appellant and the Appellant’s behaviour as a high-ranking employee was not proper and objectively created ‘un trouble objectif’ in the ‘bon fonctionnement de l’entreprise’ leading to ‘manquements aux obligations résultant de son contrat’ and consequently put the company’s reputation and business in jeopardy.

Attorney for Respondent: Josephine Robert