‘A court of law is not concerned with the political aspects or the political consequences of its decision’

LGSC Employees & Contradictory Supreme Court Rulings

Qs & As

By Lex

The two recent rulings from the Supreme Court concerning the termination of contracts for Local Government Service Commission (LGSC) employees has raised significant questions regarding judicial consistency and the application of legal principles. This situation prompts a closer examination of how different judicial panels can arrive at opposing conclusions on similar issues, the specific legal grounds invoked, and the broader implications for public confidence in the judiciary. This week’s Qs &As delves into the intricacies of judicial review, the impact of contractual terms on legitimate expectation, and the mechanisms available to address conflicting judgments, ultimately seeking to understand the path towards greater legal clarity and predictability.

* What is your initial reaction to the Supreme Court delivering two sets of contradictory rulings on the same issue of contract termination for LGSC employees?

A judgment may appear contradictory to another when the facts and legal issues are so similar they’re like genuine twins. In the two decisions concerning Local Government Employees, it seems odd to have one judgment rejecting the employees’ claim and another accepting it on the grounds that it raises triable issues, especially if the facts were indeed indistinguishable. The outcomes likely depend on how the judges of the different benches approached the issue, and the specific facts and arguments presented before each bench.

* Can you explain, from a legal standpoint, how it’s possible for different panels of Supreme Court judges to reach opposite conclusions on similar facts and legal arguments?

First, it must be established whether the same facts were raised in both cases and how the legal issues were argued.

In the application heard by Judges Kwok and Neerooa, the Judges were of the following opinion: “In view of the terms of the offer of employment, it must have been abundantly clear to the applicant that his “employment may be terminated without notice or compensation in lieu of notice” and that he could not have any expectation, let alone a legitimate expectation, that his employment would continue as averred by him in his affidavit. Furthermore, it is to be noted that legitimate expectation has not even been invoked as a ground for judicial review in the statement of case.”
The Judges also considered that “The applicant accepted to be appointed on such terms and conditions ‘en toute connaissance de cause’ and could not expect any permanent employment the more so that he was not recruited on a probationary period. It is also obvious that there was no duty to give any reason for the termination of the employment since it was specifically mentioned in the letter of appointment that the employment may be terminated without notice.”

They reached the above conclusion after a thorough analysis of the principles relating to judicial review.

* The ruling by Judges Chan Kan Cheong and Narain highlighted “illegality in decision-making” and “procedural unfairness/violation of natural justice principles.” Can you elaborate on what these grounds typically entail in administrative law challenges?

The reasoning of Judges Chan Kan Cheong and Narain, leading to their conclusion that the termination of the Local Government employees’ employment was unfair and violated natural justice, is not available to us. It is common for an interim (temporary) injunction to be granted ex parte (without the presence of the opposing party). This procedure is typically employed in urgent matters where failure to grant the injunction could cause irreparable harm to the applicant.

An applicant for judicial review must show that the decision of the public body was illegal. Illegality arises when a decision-maker breaches a legal requirement, misdirects itself in law, exercises a power wrongly, or purports to exercise a power that it does not have, which is known as acting ‘ultra vires’ that is the decision maker overstepped the powers given to him or exercised a power not conferred on him.’

The applicant must also show that the decision was irrational in the sense that it was so unreasonable that no reasonable authority could ever have come to it.

A decision of a public body may also be challenged if it is procedurally improper. In other words, the decision maker failed to observe statutory procedures or natural justice. The words ‘natural justice’ is derived from the Roman word ‘Jus Naturale’, which means principles of natural law, justice, equity, and good conscience. They mean that an individual is afforded fair and impartial hearing by the decision maker whose mind must be free from any bias. Also, it is essential that justice is not only done, but is also seen to be done.

Judicial review can also be sought on the ground of a breach of legitimate expectation. This occurs when a decision-maker fails to act in accordance with an expectation that they have created through their own clear and unequivocal statements or conduct.

* Conversely, Judges Kwok and Neerooa emphasized that the employment was “temporary, daily, without right to permanent employment” and that contracts allowed for termination without notice or compensation. How do these contractual terms typically impact claims of legitimate expectation or procedural fairness?

Judges Kwok and Neerooa unequivocally stated that, given the express terms of the offer of employment, it should have been abundantly clear to the applicant that his ’employment may be terminated without notice or compensation in lieu of notice.’ Consequently, they held that the applicant could not have had any expectation, let alone a legitimate one, regarding continued employment or notice.

* What might explain the different interpretations of “legitimate expectation” between the two sets of judges? Is there a hierarchy of legal principles at play that led to these divergent outcomes?

At this stage, in the absence of any reasoned decision from Judges Chan Kan Cheong and Narain, we cannot surmise whether differing interpretations led to their conclusion. As a rule, temporary or interim orders typically do not contain detailed reasoning.

However, it would appear unusual if the exact same set of facts was presented to both Benches. It would be insightful to understand how Judges Chan Kan Cheong and Narain would justify their order, without implying that one Bench was inherently right or wrong.

The Judges who issued the order on the grounds that the applicants had an arguable case (not necessarily a winning one) may indeed distinguish their decision from that of Judges Kwok and Neerooa if the facts and/or the legal principles differed materially. In legal parlance, to ‘distinguish’ a judgment means to identify a significant difference between a previous case and the current matter being heard. This allows a court to justify a different outcome than what the prior decision might suggest, thereby avoiding the application of a precedent due to material factual or circumstantial distinctions.

Therefore, we await further developments.

* What are the immediate practical implications for the LGSC employees? For those whose applications were rejected, what avenues remain for them, if any?

The LGSC employees can apply for leave to appeal to the Privy Council. It must be emphasized that such leave is not readily granted by the Supreme Court. Appeals to the Privy Council are not automatic; they are governed by stringent rules. Even an application for special leave would not be easily obtained.

In the 1982 case of DPP v Badry, the Law Lords unequivocally stated that leave to appeal is not granted ‘except where some clear departure from the requirements of justice’ exists, or if there has been ‘a disregard of the forms of legal process, or some violation of the principles of natural justice or otherwise, substantial and grave injustice has been done.’

Therefore, this will not be an easy obstacle to surmount.

* Given these contradictory rulings, what steps can be taken to bring legal clarity and consistency to this issue? Is there a mechanism for the Supreme Court to reconcile its own conflicting judgments?

When there are conflicting judgments, the issue can be submitted to a Full Bench for a definite decision and ultimately to the Privy Council.

For example, there was a case where one judge decided that the failure to inform a suspect of their rights before an interrogation would render a confession inadmissible, and another was of a contrary view. The Full Bench clarified the matter by stating that depending on the circumstances of a case, a breach of the suspect’s rights may not render a confession inadmissible.

* From a broader legal perspective, what impact do such contradictory rulings have on public confidence in the judiciary and the rule of law?

On the contrary when Judges are not of the same opinion it is a good sign. The presence of an active judiciary should, in fact, strengthen, not undermine, confidence in the judicial system.

* This situation highlights the importance of judicial review. What are the key elements a legal team must establish to successfully obtain leave for judicial review, particularly in

An application for judicial review is carried out in two stages. First, there must be a motion for leave to apply for judicial review. The Court will only proceed to hear the substantive application if, and to the extent that, such leave is granted. The application must be made promptly. The Privy Council has held that even if the application is within the three-month limit for judicial review, too long a delay within that time frame may be fatal to the application.

An individual or organisation must have sufficient interest, or standing, in the matter to which the judicial review relates in order to bring a judicial review claim or be involved in it. The grounds that may be invoked in an application for judicial review include: illegality, meaning that the decision-maker had no power to take the decision; irrationality, in the sense that no reasonable person would have made such a decision; and procedural impropriety, where the decision-maker failed to observe statutory procedures or the principles of natural justice.

* The case involves a state entity (LGSC) and allegations of “political pressure.” How challenging is it to fight cases where political influence might be perceived to affect administrative decisions?

A court of law is not concerned with the political aspects or the political consequences of its decision. The court will decide based on the facts and the legal principles involved.

In the 1980s, challenges were brought before the Supreme Court against the postponement of the general elections. The court rejected the challenges by focusing solely on constitutional principles, irrespective of the political consequences. It was a case with sensitive political overtones.

* What lessons can be learned from this situation regarding the process of judicial review and the importance of clear, consistent legal precedent?

According to the doctrine of precedent, a court is bound by the decisions of a higher court. A superior court has the power to overrule decisions of lower courts and, in certain cases, even to overrule its own previous decisions.

The doctrine also allows for departure from earlier rulings when appropriate. The value of the doctrine lies not only in ensuring consistency and respect for past decisions but also in allowing flexibility so that flawed judgments are not perpetuated. No two cases are exactly alike, and each must be decided on its own merits in accordance with established legal principles.

Mauritius Times ePaper Friday 20 June 2025