Case summary – Avrillon D.P.P. v The Registrar General [2026 SCJ 157]
Mr. Avrillon as the Applicant entered an application for a judicial review challenging the decision of the Registrar General in relation to the registration and inscription of two loan documents which were both notarial deeds secured by conventional mortgages in favour of his legitimate son. The Applicant averred that the two deeds were drafted as “inscriptions d’hypothèques conventionelles au profit du père contre le fils.” whilst the Registrar General argued that the said loan documents are “illicit transactions and as such it is legally in order for the Conservator of Mortgages to decline to give publicity to the transactions.” The refusal was due to the fact that the Applicant was not a moneylender and not licensed to grant loans. The Applicant prayed for an order to have the Registrar General’s decision set aside, quashed, reversed or otherwise dealt with as the Court may deem fit and proper in the present circumstances.
The Supreme Court considered whether the Registrar General acted intra vires his powers in refusing to inscribe the said loan deeds and whether the Applicant is a moneylender. The Supreme Court held that the Registrar General acted ultra vires his powers by refusing the inscription of the loan deeds. The decision of the Registrar General was eventually quashed because it was unjustified. The Applicant is not a moneylender and does not require a licence under the Banking Act to grant personal loans to his son in the present circumstances.
Observations
The judgment represents a landmark development in the law of moneylending under the Banking Act inasmuch as:
- it establishes that the definition of “moneylending” in the Banking Act has been repealed;
- it strongly reaffirms that section 14D of the Banking Act (which stipulated that no person shall engage in the business of moneylending without a licence granted by the central bank) has been repealed;
- where parties have entered into an agreement consisting of a personal loan to one of the parties “pour l’aider dans ses besoins and affaires” out of their own free will, this does not amount to moneylending;
- it will likely serve as an authority in future litigation involving once off personal loans granted by a parent to his child “pour l’aider dans ses besoins and affaires”, moneylending purposes and the registration and inscription of loan deeds to the register of Conservator of Mortgages.
It is noted that this case turns on the interpretation of a “moneylender” under the Banking Act on its own particular facts and circumstances. The law has been amended by repealing the sections of the Banking Act relating to moneylending so that the business and licensing of moneylending is no longer governed by the Banking Act.
For further information and updates please contact Dev Erriah from Erriah Chambers, the LEX Africa member in Mauritius, on deverriah@intnet.mu or visit www.erriahchambers.com
