Order for Second Reading read.

The Attorney General (Mr Y. Varma): Mr Speaker, Sir, I move that the Affidavits of Prescription Act (Suspension of Certain Provisions) Bill (No. XXV of 2012) be read a second time.

Mr Speaker, Sir, as Members of the House will recall, the Commission of Enquiry on the System of Acquisitive Prescription was issued by the then Acting President of the Republic on 21 May of this year, to enquire and report on whether the system of Acquisitive Prescription gives rise or has given rise to any malpractice or wrongdoing, or causes or has caused undue hardship or prejudice to the public.  As per its terms of reference, the Commission of Enquiry is also to report on such changes, including statutory amendments, as may be necessary to better safeguard the interest of the public at large.

Mr Speaker, Sir, I am given to understand that the Commission of Enquiry has had preliminary meetings with various persons and institutions involved with the prescription of lands, namely: Attorneys, Notaries, Barristers, the Registrar-General/Conservator of Mortgages, the Curator of Vacant Estates and the Ministry of Housing and Lands, and it has, since its first sitting on 06 August 2012, been hearing professionals and representatives of various institutions concerned directly or indirectly with the prescription issue, including members of the public.

 

However, Mr Speaker, Sir, it is with great concern that I have to inform the House of certain matters which have been brought to the attention of Government by the Commission of Enquiry, in one of its correspondences, and which are as follows –

Firstly, under our law, as it presently stands – i.e. the Affidavits of Prescription Act which dates back to 1958 – it is extremely easy to prescribe an immoveable property.  Indeed, 2 persons simply have to swear an affidavit stating that a party has occupied a land for more than 30 years, following which the affidavit is deposited at the office of the Registrar-General, together with a memorandum of survey, and the publications are then made in the Government Gazette as well as two daily newspapers.  Thereafter, if there is no objection within a period of 3 months of the last publication, the affidavit of prescription is transcribed and the person concerned is deemed to be the owner of the land.

Secondly, the 2 persons swearing the affidavit usually do not know the exact location of the land and sometimes they do not even know the applicant.

Thirdly, most of the persons whose land is being prescribed do not have access to the Government Gazette or the daily newspapers where the publications are made.

Fourthly, in many cases, the memorandum of survey drawn up by a Sworn Land Surveyor contains important irregularities such as fake Land Survey number, inappropriate boundaries and fake neighbours’ particulars.

Mr Speaker, Sir, another major cause for concern is that the Commission of Enquiry has further noted a considerable increase in the number of applications for prescription in daily newspapers since its setting up.  Consequently, the Commission of Enquiry has requested that, pending its recommendations and any amendment to the law, and with a view to protecting the public against possible fraudulent prescriptions, certain provisions of the Affidavits of Prescription Act (“the Act”) be suspended so that no application for the transcription of an affidavit of prescription can be made to the Conservator of Mortgages – which explains why the present piece of legislation is before this House today.

This Bill, therefore, Mr Speaker, Sir, seeks to suspend certain provisions of the Act so that, pending the recommendations of the Commission of Enquiry and any amendment made to the law as a consequence, no application for the transcription of an affidavit of prescription can be made to the Conservator of Mortgages.  It is to be noted that the Bill also makes provision for applications for transcription of an affidavit of prescription that are pending on the Bill becoming law.

Insofar as the different provisions of the Bill are concerned, Mr Speaker, Sir, Clause 3(1) of the Bill accordingly suspends –

• firstly, section 3 of the Act – which provides for the conditions for the transcription of affidavits of prescription;
• secondly, section 4 – which deals with applications for the transcription of affidavits of prescription;
• thirdly, sections 6 to 9 – which respectively deal with objections to the transcription of affidavits of prescription, disposal of such objections, prohibition of transcription of affidavits of prescription, and
• finally, the Schedules to the Act.

However, Mr Speaker, Sir, I would here like to point out that, under clause 3(2) of the Bill, where, on or after 23 July 2012 but before the commencement of the Affidavits of Prescription Act (Suspension of Certain Provisions) Act 2012, notice of any application for the transcription of an affidavit of prescription has been published in accordance with the Act, an objection to the transcription of such affidavit of prescription may be made in the manner specified in section 6(1) of the Act by any person claiming to have an interest in the immovable property in respect of which the affidavit of prescription was sworn, within 6 months, or such longer period not exceeding 12 months as may be prescribed by the Attorney General, of the commencement of the Affidavits of Prescription Act (Suspension of Certain Provisions) Act 2012.

As regards applications for transcription made before 23 July 2012,   Mr Speaker, Sir, the affidavit of prescription shall be transcribed in accordance with section 9(1) of the Act, where no objection has been received by the Conservator of Mortgages on a commencement of this Act (Suspension of Certain Provisions). In the case where an objection was received by the Conservator of Mortgages within 3 months of the last publication of the notice under section 4(3) of the Act, the objection shall be dealt with in accordance with section 7 of the Act.

Consequently, by virtue of Clause 4 of the Bill, the Affidavits of Prescription Act (Suspension of Certain Provisions) Act 2012 shall, on being passed, be deemed to have come into operation on 23 October 2012.

Mr Speaker, Sir, I have absolutely no doubt that Members of the House will agree that, in the light of the observations of the Commission of Enquiry and the increasing number of applications for the transcription of affidavits, it is most imperative that the above provisions of the Act be suspended for the protection, and in the interest, of the public at large in order to ensure that the property rights of individuals of this country, as guaranteed by our Constitution, are not violated or interfered with.

With these words, Mr Speaker, Sir, I commend the Bill to the House.

Dr. A. Boolell rose and seconded.

 

Mr Varma: Mr Deputy Speaker, Sir, in fact, I would like to thank all hon. Members who have intervened on this Bill. There are certain suggestions which have been made by Members of Parliament today. I can assure the House that these will be transmitted to the relevant authorities.

I would just like to reply to one point which was raised earlier by the Third Member for Flacq and Bon Accueil. In fact, Mr Deputy Speaker, Sir, we are not blaming the whole system. We received representations from the Commission of Enquiry and Government, in its wisdom, thought it proper to come to the House and present this piece of legislation to suspend certain sections of the law pending the recommendations of the Commission of Enquiry.

As regards the issue of sale by levy, Mr Deputy Speaker, Sir, the issue was raised by the hon. Third Member for GRNW and Port Louis West and also by the Third Member for Flacq and Bon Accueil. In fact, Mr Deputy Speaker, Sir, this piece of legislation is before the House today following recommendations made by the Commission of Enquiry and, indeed, ils ont pris le devant. In fact, we are looking into the matter. That’s why Government, in its wisdom, set up two Commissions of Enquiry which are presided by Senior Magistrates of the Intermediate Court. We are aware of the problems. That is why we have set up these Commissions to look into the matter.

Again, Mr Deputy Speaker, Sir, we are meeting after three months. The positive aspect of the debate today is that there is, in general, broad consensus on the piece of legislation.

Thank you very much.

Question put and agreed to.

Bill read a second time and committed.