Tuesday, June 23, 2015


The Principal Secretary (PS) for Investment, Entrepreneurship, Development and Business Innovation, Marise Berlouis, looks set to lose a plot a land sold to her by the state, since the latter failed to give proper regard to the Constitution in selling the land.

The plot is situated at La Misere and was bought by the PS back in 2010, in the midst of negotiation between its original proprietor and the state, to have it returned to its rightful owner.

The country’s Constitution, and with it the application of the 7th Schedule which covers issues relating to land acquisition, dictates that the government has a constitutional obligation to return land acquired during the one party rule to the people that held ownership of these lands prior to July of 1993.

Besides limiting the free reign the government exercised during the one party state to acquire land for whatever purposes it deemed fit, the 7th Schedule implied that land acquired prior to 1993 should be returned to rightful owners, or in the event this is not practical, that owners be compensated for losses incurred. The Constitutional Court reminded the parties before it that the 7th Schedule was the subject of much debate leading to the adaptation of the Constitution, noting that the approval of the Charter was rejected at the first time of asking, because of the level of importance attached to the issue of land acquisition.

 It said the underlying principle of the 7th Schedule is to assert that no more land is acquired by the state unless it is in the public interest; and to correct injustices of the past when those whose land was acquired could not seek recourse.

The action of the government in this particular case however failed to pay any regard to the Schedule, with the court stating that it blatantly ignored the Constitution when it transferred the plot of land in question to PS Berlouis for a sum of R175,000 in 2010.

 The issue with the transfer is that in awarding the land to the PS, despite the act being illegal, the state placed itself in a position to later claim that it is not in a position to return the land to its rightful owner, as it no longer held the deed.

 But seeing that the land was undeveloped, one of the terms laid down to exact the return of land acquired under the old system, means the transfer was merely a ploy for the government to contravene the Constitution.

Land cannot be returned in only two instances according to the Constitution, when it is in the public interest, or when it is developed or there is a future plan for development. The sale of these lands for commercial gain is strictly prohibited, and since none of the above reasons applied to the plot in question, the petitioner was entitled to have the land returned without hindrance. Regardless of the red flags, somehow the government transferred the land to PS Berlouis, who resides on the adjacent plot together with her husband, former minister in the René Administraion.

The petitioner’s lawyer, Frank Ally, said the transfer was not just unlawful and done out of bad faith, but denotes a lack of respect the regime tends to show towards the Constitution. He said the deed is a case of one PS rendering a favour to another PS, inferring that the PS for Land Use and Habitat at the time, rendered a favour to PS Berlouis, the Principal Secretary for Industry then, in allocating her the land. “People of her status should not be in position to purchase land from the government”, he interjected, noting that she was already a land owner.

 He emphasized that since the government paid no regard to the Constitution the transaction should be declared null and void, and the land consequently transferred back to the petitioner. The court concurred insisting that if it allowed the transfer to stand, it is inviting the next government that comes in power to continue to acquire land and to retransfer these acquired land to cronies. The state’s response, led by State Counsel Chinasamy, is that it had offered compensation to the petitioner, in the form of another plot of similar value at Glacis. The court said the offer should have been extended to PS Berlouis, for the petitioner holds the supreme rights to the land, and not her.

Chinasamy also proposed compensation in the form of money, to which the court responded that every time the offer of money is proposed, it means something wrong or unlawful has been committed. It likened the offer of money to an instant when the police have beaten up an individual, and then offer money in compensation for the person to keep quiet. Against the wall, Chinasamy unreasonably suggested that the land was inconsequential, since it represented a small portion of the total being returned to the petitioner in the same case. Amused, the court laughingly reminded the lawyer that it is unlawful to trample on the rights of others, even if at a minimal.

Lawyer Basil Hoareau was representing PS Berlouis at the hearing and he stated that his client is a bonafide purchaser of the land whose rights should be protected. Mr. Hoareau’s claim that the PS was unaware of the dispute hanging over the land at the time of the purchase was counteracted. Mr. Ally pointed out that Mrs. Berlouis was well aware of the negotiation a year prior to the purchase, as dictated in an affidavit when the approach was made for the land. Furthermore he said PS Berlouis’ husband had purchased a house from his client previously and was very well aware of the petitioner’s situation with the government.