IN THE SUPREME COURT OF MAURITIUS
(BEFORE THE HONOURABLE JUDGE IN CHAMBERS)

In the matter of:-

Mrs Nandanee Soornack - APPLICANT
V

Le Mauricien Ltd & Ors RESPONDENTS

AND in the matter of:-

EX PARTE: Nandanee Soornack - APPLICANT

WRITTEN SUBMISSIONS OF COUNSEL FOR RESPONDENTS 3, 4, 5 & 6

The Applicant has obtained, ex parte, a gagging order against the Respondents prohibiting them from publishing in four newspapers anything against the Applicant and her family for the protection of the Applicant’s right to privacy and the right of privacy of Applicant’s family.

In view of the fact that issues pertaining to the Applicant’s private life are intimately linked to a political clash presently unfolding between the main political parties of the country, this order has caused and is causing much concern in our society where attachment to the freedom of the press is profoundly rooted in its democratic tradition. The present submissions are founded in law, aim at defending the freedom of the press and should not in any manner be interpreted as taking side in political quarrels that should be left to politicians and political activists. It remains that politics, which is a fundamental component of any democratic society, is at the heart of the present case.

It is submitted that the Applicant has deliberately excluded the political dimension of the whole affair when exposing the facts in her original affidavit in support of her application. The Honourable Judge was therefore not properly apprised of highly relevant facts at the time the ex parte application was made. Counsel for the Respondents no. 3, 4, 5 and 6 has therefore moved for the immediate discharge of the interim injunction on the ground that the Applicant had failed, in her affidavit in support of her praecipe, to make a full and frank disclosure of all material facts relevant to the remedy sought.

The relevant facts, which according to the Respondents 3, 4, 5 and 6, the Applicant have failed to disclose are set out under paragraph 2 of the affidavit sworn by Respondent no. 4 on 8 January 2013 (RA1).

Due to the Court’s time constraints, Counsels have agreed to make written submissions on this preliminary point of law and to file same on 10 January 2013 at 09:00 am.

We shall first consider the rule as to “full and frank disclosure” on which the preliminary point of law taken is founded (1). Secondly, in view of the nature of the present application, it will be necessary to examine the tension existing between the “droit au respect de la vie privée” and the “freedom of expression” and see how this tension should be resolved (2). We shall then be in a position to indicate what are the relevant facts, which should be disclosed in an application such as the present one in order to demonstrate that the Applicant failed to disclose such facts (3). Finally it will be submitted that the Court having been apprised of the material facts originally not disclosed the interim injunction should be immediately discharged (4).

1. The law of injunction as to full and frank disclosure of material facts

a) The principle: the affidavit in support of an application for an interim injunction should disclose all facts relevant to the remedy sought.

The principle is well established and is aptly set out in the following local cases:-

• City Pharmacy Company Ltd v Pharmacy Board 2000 SCJ 101 (Annex 1)
“An applicant who seeks that remedy must come with clean hands. Since such an order is granted as a matter of urgency before even hearing the other party, the applicant is expected to make a full and fair disclose of all material facts, to give a true picture of the circumstances in respect of which he is asking for the protection of his rights, and is seeking relief. An interim order is liable to be discharged for material non-disclosure”
• Robert Lesage and Ors v. The Town and Country Planning Board []]]]1997 SCJ 427] (Annex 2)

“There is no doubt that non-disclosure of material facts may lead to the discharge of an interim injunction, even if such non-disclosure was innocent and not intended to mislead”

b) The Court’s residual discretion:- continue the injunction or grant a new injunction
• Brink’s Mat Ltd v Elcombe []]]]1988] 1 W.L.R. quoted in the case of Saturn Investments SARL v/s Wah Bon Ching & ors (Annex 3)
 “it is not for every omission that the injunction will be automatically discharged. A locus poenitentiae may sometimes be afforded:“ per Lord Denning M.R. in Bank Mellat v. Nikpour []]]]1985] F.S.R. 87, 90. The court has a discretion, notwithstanding proof of material non-disclosure which justifies or requires the immediate discharge of the ex parte order, nevertheless to continue the order, or to make a new order on terms.”  (…)
“the judge made rule relating to disclosure cannot be allowed itself to become an instrument of injustice. It is for this reason that there must be a discretion in the court to continue the injunction, or to grant a fresh injunction in its place, notwithstanding that there may have been non-disclosure when the original ex parte injunction was obtained: see in general Bank Mellat v. Nikpour []]]]1985] F.S.R. 87, 90 and Lloyds Bowmaker Ltd. v. Britannia Arrow Holdings Plc, ante, p. 1337....”

2. The tension between two rights of the individual

Which right should be given precedence:- the right to protection of private life or the constitutional right to freedom of expression?

Although we intend to rely on French and English authorities it is apposite to note the following difference between the law applicable in Europe and our local legislation.

In the European Convention on Human Rights Article 8 caters for the protection of private life of an individual and Article 10 of the same Convention protects freedom of expression. The European approach has been adopted by the French Cour de Cassation and is explained in Repertoire Dalloz vo Personnalité (Droits de la) para. 305 (Annex 4):-
“Les Droits au respect de la vie privée et à la liberté d’expression revêtant eu égard aux articles 8 et 10 de la Convention européenne des droits de l’homme une identique valeur normative, font devoir au juge saisi de rechercher leur équilibre et le cas échéant, de privilégier la solution la plus protectrice de l’intérêt le plus légitime”.

However in Mauritius the right to Freedom of expression and the right to protection of private life DO NOT have the same “valeur normative”.  Section 9 of our Constitution does not recognize the right to the protection of private life as a constitutional right. What is protected under section 9 is the right of “Protection for privacy of home and other property”. In Mauritius our Constitution (s. 12(2)(b) & (c)) mentions the right to the protection of private life only as an exception to the constitutional right to freedom of expression enshrined under section 12.

The right to the protection of private life is itself established under a statutory provision i.e. Article 22 of the Civil Code.

Whilst referring to French and English authorities as to the balancing exercise between Freedom of expression and the right to protection of private life it should therefore keep in mind that in Mauritius the latter right does not have a constitutional value. In view of the local legislation Freedom of expression, because of its constitutional status, should therefore be given more weight than the statutory right to protection of private life.

Be it as it may, we wish to stress that even by applying the European approach to the present matter, it is abundantly clear that the relevant facts, which would have allowed the Honourable Judge in Chambers to carry out the aforesaid balancing exercise, have not been disclosed by the Applicant.

3. What are the material facts which should have been disclosed?

a) Definition of “material facts” under the law of injunctions
• The application “must disclose the facts which reasonably could or would be taken into account by the judge in deciding whether to grant the application”
Siporex Trade SA v/s Comdel Commodities Ltd (1986 Lloyds Rep 428 at page 437 quoted in the case of Saturn Investment SARL (Annex 3)

• “The material facts are those which it is material for the judge to know in dealing with the application as made: materiality is to be decided by the court and not by the assessment of the applicant or his legal advisers: see Rex v Kensington Income Tax Commissioners, per Lord Cozens-Hardy M.R., at p. 504, citing Dalglish v Jarvie (1850) 2 Mac. & G. 231, 238, and Browne- Wilkinson J. in Thermax Ltd. v. Schott Industrial Glass Ltd. []]]]1981] F.S.R. 289, 295.

(3) The applicant must make proper inquiries before making the application: see Bank Mellat v. Nikpour []]]]1985] F.S.R. 87. The duty of disclosure therefore applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made such inquiries.

(4) The extent of the inquiries which will be held to be proper, and therefore necessary, must depend on all the circumstances of the case including (a) the nature of the case which the applicant is making when he makes the application and (b) the order for which application is made and the probable effect of the order on the defendant: see, for example, the examination by Scott J. of the possible effect of an Anton Piller order in Columbia Picture Industries Inc. v Robinson []]]]1987] Ch. 38 and (c) the degree of legitimate urgency and the time available for the making of inquiries see per Slade L.J. in Bank Mellat v. Nikpour []]]]1985] F.S.R. 87, 92-93.

Authorities quoted in Robert Lesage case (Annex 2)
b) Facts undisputedly not disclosed in the present matter
Under paragraph 2 (a) to (g) of RA1 Respondent no. 4 has set out the facts which were not disclosed by the Applicant in the present matter.

On 9 January 2013 the Applicant has filed an affidavit (AA2)  in reply to RA1 in which she DOES NOT DENY paragraph 2 of RA1 and (i) admits that the facts referred to under paragraph 2 of RA1 have not been disclosed and (ii) explains why according to her such facts are “irrelevant” to the present matter. It is therefore not denied that the mere production of press articles without making any specific averment to the multiple issues raised therein does not amount to sufficient disclosure.
It is clear from Applicant’s second affidavit that:-
(i) The fact that she is a political activist of the Labour Party, which is the party in power and the fact that she was an official agent of the Labour party and actively participated in the campaign for municipal elections in December 2012 “are not relevant to my present application” (paragraph 2a of AA2)
(ii) The Applicant does not deny the fact that the incident she refers to in paragraph 3 of AA1 had a political dimension as averred in paragraph 2 (c) & (d) of RA1 and that she refrained from making any averment in her original affidavit as to the political aspect of the said incident.
(iii)  The fact that the public incident in which she was involved was the subject matter of a Private Notice Question in Parliament by the Leader of the opposition is “certainly not relevant” to her application. (paragraph 2b of AA2)
(iv) She did not disclose to the Court the fact Mr Pravind Jugnauth made a statement to the police on Thursday 3 January 2013 regarding undue political favors she would have benefited in her business dealings because she was “not aware” of same (para. 2d of AA2) WHEREAS she has herself annexed to AA1 the first page of Le Mauricien newspaper dated 4 January 2013 (Doc 5) which reports the fact that the said statement was made and bears the following title on the first page:- “Les relations d’affaires Nandanee Soornack/ Doomeswarsingh Gooljaury avec le contrat de produits duty free à l’aéroport en vedette”. It is important to note that the Applicant has produced on the first page of this newspaper bearing the titles of the article BUT NOT the article itself.
(v) The statement made by Mr Pravind Jugnauth regarding undue political favors she would have benefited “is irrelevant to the present application” (para. 2e AA2)
(vi) The statement of Hon Pravind Jugnauth cannot “form the basis to expose y private life or to comment on my business activities” (para. 2f AA2)
(vii) The Applicant DOES NOT DENY:-
o ………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………
o having failed to inform the Court of the fact that such allegations  of …………………………………………………………………………………………………………………………………………………………………
(viii) ……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………
It is submitted that the admission by the Applicant that she did not make any averment in her affidavit disclosing the abovementioned facts greatly simplifies the issue to be thrashed out by the Court in the present matter:-
In view of the classical defenses available in applications for the granting of a gagging order, are the facts, referred to under paragraph 2 of RA1 and which the Applicant has admitted not to have disclosed, material facts which should have been disclosed having regard to the remedy sought?
c) Are the undisclosed facts, material facts in view of the defenses available in an application such as the present one?
(i) Defenses available

We refer the Court to Annex 4, Repertoire Dalloz, vo Personnalité (Droit de la), para 321(Pertinence de la réveélation)

321. Depuis le début des années 2000, l’influence de la Cour européenne des droits de l’homme, très favorable à la liberté d’expression, se fait nettement ressentir sur la jurisprudence de la Cour de cassation. Il ne doit pas s’agir pour autant de répondre à toute curiosité du public, laquelle peut être mal placée. Ainsi, la jurisprudence tend-elle à faire la part des choses entre ce qui relève de « la distraction du lecteur » et du « devoir d’information » (TGI Nanterre, 30 juin 2004, Légipresse 2004, I, p. 144). Ce dernier est révélé dans deux circonstances, l’information sur le fait d’actualité et la contribution à un débat général, qui apparaissent ainsi désormais constitutives de deux exceptions à la protection de la vie privée. On peut voir dans l’une et l’autre des « faits justificatifs » de l’atteinte à la vie privée (J.-P. GRI- DEL, préc. supra, no 305 L. MARINO, obs. Civ. 1re, 27 févr. 2007, Légipresse 2007, I, p. 109).
It is submitted that the undisclosed facts referred to under paragraph 2 of RA1 constitute “des faits justificatifs de l’atteinte à la vie privée” inasmuch as such facts justify the “révélation de certains faits” pertaining to Applicant’s private life in view of the “devoir d’information” of the press.

(ii) The undisclosed facts constitute “faits justificatifs” allowing the revelation of certain aspects of the Applicant’s private life.

• Nécessité de l’information sur l’actualité  (Repertoire Dalloz, Annex 4, para 322)
The Applicant failed to disclose the following “faits d’actualités”:-
o The fact that the Prime Minister had made remarks in Parliament leading the public to think that the Applicant ………………. … ………………………………………………………..…… Paragraph 2(h)(i) of RA1 has not been denied by Applicant in AA2.  In view of the “nécessité de l’information sur l’actualité” the press is entitled to enquire as to the remarks indicating that the Applicant ... ………. ……………………………… in view of the declaration made by the Prime Minister in Parliament and if need be reveal the existence or not … …………………... The extract of the Hansard annexed to RA1 (Annex 1 of RA1) shows that the Prime Minister has designated by their name three women in order to insinuate that the Leader of the opposition might have had affairs of a … …….. ………….. with the said women. 
o The incident of 10 December 2012 is an incident of a political nature which has given rise to public questioning as to the Applicant’s influence on the police through her political “relations”. The Applicant made no averments in her AA1 as to the public suspicion that through her political “influence” the Applicant has triggered an abuse of the police powers of  arrest and search against a political activist of an opposition party. The public suspicion raised by the Applicant’s behavior constituted “un évènement d’actualité” of such a magnitude that it was made the subject matter of PNQ by the Leader of the Opposition. It is apposite to note that the charges leveled against Mr Sawmynaden were struck out before the District Court of Curepipe on 9 January 2013 on a motion of the Director of Public Prosecution on the ground that the facts did not support the offence for which Mr. Sawmynaden was charged.
o The statement to the police of Hon. Pravind Jugnauth, former Vice Prime Minister and Minister of Finance, to the effect that the Applicant had benefited from political favors in the attribution of contracts by institutions controlled by the State constitutes “un évènement d’actualité” which makes it highly pertinent to reveal the exact nature of the Applicant’s political “relations” and “influence”. And this whether or not the contents of the said statement is denied by the Applicant. The Applicant had the duty to in her affidavit in support of her application for a gagging order to make thorough averments as to the accusations of the Minister of Finance as to the undue political favors she has allegedly benefited. It is not true that the Applicant was “not aware” of such accusations at the time her application was lodged.

• Contribution à un débat d’intérêt general

The facts which the Applicant has admitted not to have disclosed in her affidavit because they were not “relevant to her application” in truth and in fact gave rise to public debates as to:-

o The double standards applied by the police to the benefit of persons having privileged political “connections”. Such double standards leading to potential infringements to the fundamental rights of a political activist of an opposition party. The press is entitled to reveal the exact nature of such political “connections” even if such revelations pertain to the private life of the beneficiary of police abuse of power.
o The double standards in the attribution of contracts applied by institutions controlled by the Government of The Republic of Mauritius to the benefit of persons having privileged political “connections”. The press is entitled to reveal the exact nature of such political “connections” even if such revelations pertain to the private life of the beneficiary of highly profitable contracts with institutions controlled by the State.
o ………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………….……………………………………………………………………

Having regard to the above it is submitted that the facts not disclosed by the Applicant and referred to under paragraph 2 of RA1 constitute material facts she should have been disclosed in order to allow the Honourable Judge in Chambers to make a proper assessment as to whether the Freedom of Expression of the press should be curtailed to protect the private life of the Applicant. The more so that the Applicant has now admitted that she did not in her first affidavit and will not disclose to the Court whether or not ………… … …… ……… …………… … …... …………..
…………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………… However such a stand is incompatible with her application for a gagging order where there are public allegations made in the National Assembly and to the police to the effect that she has benefited from undue political influence. The Applicant’s stand to the effect that such public allegations are “irrelevant” to her application for a gagging order and that she did not have to disclose those material facts is unreasonable and not tenable in a democratic society. The interim order issued against the Respondent should accordingly be immediately dismissed, the Applicant having failed to disclose material facts to the Honourable Judge in Chambers.
4) Should the Court exercise its discretion to maintain the gagging order despite the Applicant’s failure to disclose material facts?
The order prayed for is very extensive and aims at imposing a total black out on all aspects of her private life. …………………………………………………………………… ………………………………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………………………………………………………………………………
It is submitted that there is no reason for the Court to exercise its jurisdiction in favor of the Applicant in a matter, which concerns the curtailment of the Freedom of the Press, which is afforded constitutional protection. The present matter concerns the political activist and a politician. The Courts have always been slower to limit freedom of expression of the press where politicians are involved and matters pertaining to their public functions are concerned. The Applicant was an official agent of a political agent when the incident, which triggered the political clash occurred and the relevant aspect …………………………………… ………………………………………………………………………………………………………….
The interim order obtained by the Applicant having already unduly affected the exercise of a fundamental right in our democratic society we can see no reason why the Court should condone the Applicant’s failure to comply with her duty to inform properly the Court.
As far as paragraph 2h of RA2 and Document A of RA2 are concerned, those are new averments which are not relevant to the preliminary point of law which was raised.

MICHEL AHNEE
COUNSEL FOR RESPONDENTS 3, 4, 5 & 6