Small and Medium Enterprises Development Authority Act 2009 (No. 18 of 2009)

37. Commencement ––––––––––– An Act To provide for the establishment of the Small and Medium Enterprises Development Authority and to make better provisions for the promotion and development of small and medium enterprises in Mauritius ENACTED by the Parliament of Mauritius, as follows – PART I – PRELIMINARY

1. Short title This Act may be cited as the Small and Medium Enterprises Development Authority Act 2009. Acts 2009 795

2. Interpretation In this Act – “Authority” means the Small and Medium Enterprises Development Authority established under section 3(1); “Board” means the Small and Medium Enterprises Development Board referred to in section 7(1); “Chairperson” means the Chairperson of the Board; “enterprise” – (a) means any form of trade or manufacture, craft by hand or foot, cultivation of fruits, vegetables or flowers, livestock breeding, or activity approved as such by the Authority; and (b) includes a co-operative society; but (c) does not include an office or employment, or a religious or charitable institution; “financial year” has the same meaning as in section 2A of the Finance and Audit Act; “Managing Director” means the person appointed as such under section 11; “medium enterprise” means an enterprise which has an annual turnover of more than 10 million rupees but not more than 50 million rupees; “member” – (a) means a member of the Board; and (b) includes the Chairperson; “Minister” means the Minister to whom responsibility for the subject of SMEs is assigned; 796 Acts 2009 “officer” – (a) means a person appointed as such under section 14; and (b) includes the Managing Director; “public sector agency” includes any Ministry, Government department, local authority or statutory body; “registration certificate” means a registration certificate issued under section 27; “relevant permit” includes any licence, permit, approval or other authorisation required from a public sector agency under any enactment; “small enterprise” means an enterprise which has an annual turnover of not more than 10 million rupees; “SMEs” means small and medium enterprises; “technical committee” means a technical committee set up under section 10. PART II – THE SMALL AND MEDIUM ENTERPRISES DEVELOPMENT AUTHORITY

3. Establishment of Authority (1) There is established, for the purposes of this Act, the Small and Medium Enterprises Development Authority. (2) The Authority shall be a body corporate.

4. Objects of Authority The objects of the Authority shall be to – (a) promote a conducive business environment and empower SMEs to emerge and grow; (b) promote a service delivery network which increases the contribution of SMEs in the national economy and enhances economic growth; Acts 2009 797 (c) enhance the competitiveness of SMEs; (d) devise and implement development support programmes and schemes for SMEs; (e) facilitate, assist and provide the necessary support to SMEs to gain market access and business opportunities and to compete successfully in the national and international markets; (f) promote and develop entrepreneurship; (g) advise the Minister on policy issues regarding the development of SMEs.

5. Functions of Authority The Authority shall have such functions as are necessary to attain its objects most effectively and shall, in particular – (a) provide core support services, particularly entrepreneurship development, business facilitation, counselling and mentoring services; (b) implement and operate a registration scheme for SMEs; (c) facilitate access to industrial space, finance and other productive resources; (d) empower product specific and sector specific SMEs to enhance their delivery capabilities; (e) coordinate with other support organisations and stakeholders in the fulfilment of its objectives; (f) facilitate networking among SMEs and the development of linkages between large enterprises and SMEs; (g) promote technological and managerial capabilities of SMEs; (h) ensure that SMEs, in respect of which a registration certificate is issued, benefit from every incentive which the government grants to them, and assist them to obtain the incentives; (i) identify best practices and disseminate them to SMEs; 798 Acts 2009 (j) organise and encourage participation of SMEs in fairs; (k) conduct surveys in the SMEs sector and provide market intelligence for those enterprises, including providing reports on various economic indicators; (l) implement, coordinate and monitor assistance programmes provided to SMEs; (m) collaborate with other local and international agencies dealing with SMEs, to develop the local SMEs through – (i) skills enhancement programmes for their officers; and (ii) participation in seminars, workshops and capacity building programmes; (n) identify projects for the development and promotion of SMEs; (o) facilitate and coordinate research relating to the development of SMEs; (p) sensitise the public at large on entrepreneurship; (q) provide incubator facilities for SMEs; (r) devise and review policies relating to SMEs; (s) coordinate initiatives of public sector agencies and of the private sector relating to SMEs; (t) coordinate entrepreneurship activities carried out by public sector agencies and the private sector.

6. Powers of Authority The Authority shall have such powers as are necessary to attain its objects and discharge its functions most effectively and may, in particular – (a) subject to the Public Procurement Act, enter into any contract; (b) establish such mechanisms as may be necessary with public sector agencies for the expeditious and timely processing of any application for funding and any relevant permit; Acts 2009 799 (c) issue guidelines for the purposes of this Act; (d) set up such technical committees as it thinks fit to assist in the discharge of its functions under this Act; (e) receive funds from the Government and raise funds from other sources for the development and promotion of SMEs; (f) undertake revenue generating activities which will enable it to become self-financing. PART III - MANAGEMENT OF AUTHORITY

7. The Board (1) The Authority shall be administered by a Board which shall be known as the Small and Medium Enterprises Development Board. (2) The Board shall consist of – (a) a Chairperson, to be appointed by the Minister; (b) a representative of the Ministry responsible for the subject of SMEs; (c) a representative of the Ministry responsible for the subject of finance; (d) a representative of the Ministry responsible for the subject of industry; (e) a representative of the Ministry responsible for the subject of co-operatives; (f) a representative of the Ministry responsible for the subject of environment; (g) a representative of the Ministry responsible for the subject of youth; (h) a representative of an association of impaired persons which is involved in entrepreneurship activities, to be appointed by the Minister; (i) a representative of the National Women Entrepreneur Council; 800 Acts 2009 (j) a representative of SMEs, to be appointed by the Minister; (k) a representative of the Art and Craft Manufacturers Association of Mauritius, to be appointed by the Minister; (l) 2 representatives of the private sector having wide experience in business and enterprise development, to be appointed by the Minister. (3) Subject to subsection (5), a member, other than an ex officio member, shall hold office for not more than 3 years but shall be eligible for reappointment. (4) No person shall be qualified to be a member where he is – (a) a member of the Assembly or of a local authority; or (b) otherwise actively engaged in politics. (5) A member shall cease to hold office – (a) on completion of his term of office; (b) on his resignation; (c) where he becomes a member of the Assembly or of a local authority, or is otherwise actively engaged in politics; (d) where he, without sufficient cause, fails to attend 3 consecutive meetings of the Board. (6) For the purposes of subsections (4) and (5), a person who – (a) is a candidate, an agent or an official representative of a candidate at an election; or (b) is an officer or member of a political party, shall be deemed to be actively engaged in politics. (7) Every member shall be paid such fees and allowances as the Minister may determine. Acts 2009 801 (8) Where a vacancy occurs in the membership of the Board, the vacancy shall be filled by a person appointed by the Minister, who shall hold office for the remainder of the term of office of that member. (9) No member shall engage in any activity which may undermine the reputation or integrity of the Authority. (10) Any member may be removed or suspended from office by the Minister in any of the circumstances described in section 37(3)(b) of the Interpretation and General Clauses Act. (11) The Board may co-opt any other person who may be of assistance in relation to any matter before the Board and the co-opted member shall – (a) not have the right to vote at any meeting of the Board; and (b) be paid such fees and allowances as the Board may determine.

8. Meetings of Board (1) The Board shall meet as often as is necessary but at least once every month at such time and place as the Chairperson may determine. (2) At any meeting of the Board, 7 members shall constitute a quorum. (3) The Managing Director shall convene a meeting of the Board on a request made to that effect by not less than 4 members. (4) The Managing Director shall, unless otherwise directed by the Board, attend every meeting of the Board and may take part in its deliberations, but shall not have the right to vote. (5) The Board shall designate an officer to act as Secretary to the Board and the Secretary shall – (a) prepare and attend every meeting of the Board; 802 Acts 2009 (b) keep minutes of proceedings of any meeting of the Board; and (c) have such other duties as may be conferred upon it by the Board. (6) The Secretary shall give notice of every meeting of the Board to the members. (7) In the absence of the Chairperson at a meeting of the Board, the members present shall elect a member from amongst themselves to chair that meeting. (8) Subject to this section, the Board shall regulate its meetings and proceedings in such manner as it thinks fit.

9. Disclosure of interest (1) Where any member, or any person related to him by blood or marriage, has a pecuniary or other material interest in relation to any matter before the Board, that member shall – (a) disclose the nature of the interest before or at the meeting convened to discuss that matter; and (b) not take part in any deliberations of the Board relating to that matter. (2) A disclosure of interest made under subsection (1) shall be recorded in the minutes of the Board.

10. Technical committees (1) The Board may set up such technical committees as may be necessary to assist it in the performance of its functions and the exercise of its powers. (2) The members of a technical committee may include – (a) persons who have qualifications and proven experience in the relevant sector being the subject matter under consideration by the technical committee; and Acts 2009 803 (b) such officers of a public sector agency as may be required for the purposes of the subject matter before the technical committee. (3) A technical committee shall – (a) meet as often as may be necessary and at such time and place as the chairperson of the technical committee thinks fit; (b) meet as and when required by the Board; (c) regulate its meetings and proceedings in such manner as it thinks fit. (4) A technical committee shall submit its report within such time as may be fixed by the Board, and the report shall contain its observations, comments and recommendations on any matter referred to it.

11. Managing Director (1) There shall be a chief executive officer of the Authority who shall be – (a) known as the Managing Director; and (b) appointed by the Board, with the approval of the Minister, on such terms and conditions as it thinks fit. (2) The Managing Director shall – (a) be responsible for the execution of the policy of the Board and for the control and management of the day-to-day business of the Authority; (b) act in accordance with such directions as he may receive from the Board; (c) achieve annual performance targets set by the Board; (d) submit to the Board, every 3 months, a report on the activities and finances of the Authority. 804 Acts 2009

12. Delegation (1) The Board may, subject to such instructions as it may give, delegate to the Managing Director such of its powers and functions as may be necessary for the effective management of the day-to-day business and activities of the Authority, other than the power to – (a) sell or exchange any property or make any donation; (b) borrow money; or (c) enter into any contract which exceeds the prescribed amount applicable to the Authority under the Public Procurement Act. (2) The Managing Director may, with the approval of the Board, delegate his powers and functions to such officer as may be designated by him.

13. Management of assets and funds The Board shall manage and utilise all the assets and funds vested in the Authority in such manner and for such purposes as, in its opinion, will best promote the objects of the Authority.

14. Appointment of officers (1) The Board may appoint, on such terms and conditions as it thinks fit, such officers as it considers necessary for the proper discharge of its functions under this Act. (2) Every officer shall be under the administrative control of the Managing Director.

15. Conditions of service of officers (1) The Board may make provision to govern the conditions of service of its officers and, in particular, to deal with – (a) the appointment, dismissal, discipline, pay and leave of, and the security to be given to, officers; Acts 2009 805 (b) appeals by officers against dismissal and any other disciplinary measure; and (c) the establishment and maintenance of provident and pension fund schemes and any other scheme, and the contributions payable to, and the benefits recoverable from, those schemes.

16. Protection from liability (1) No liability, civil or criminal, shall be incurred by the Authority or any member or any officer in respect of any act done or omitted in good faith in the discharge of its or his functions or exercise of its or his powers under this Act or any regulations made under it. (2) This section shall be in addition to, and not in derogation from, the Public Officers’ Protection Act, and every member or officer shall, for the purposes of that Act, be deemed to be a public officer or a person lawfully engaged, authorised or employed in the performance of a public duty.

17. Powers of Minister (1) The Minister may give such directions of a general character to the Board, not inconsistent with this Act, as he considers necessary in the public interest, and the Board shall comply with those directions. (2) The Minister may require the Board to furnish any information or document in relation to the activities of the Authority and the Board shall supply such information or document. PART IV – FINANCIAL PROVISIONS AND ACCOUNTS

18. General Fund The Authority shall set up a General Fund – (a) into which shall be paid – (i) any donation, grant and contribution received by it; 806 Acts 2009 (ii) any fee; and (iii) any other sum which may lawfully accrue to it; (b) out of which all payments required to be made by the Authority shall be effected.

19. Transfer of property and borrowing The Authority shall not, except with the approval of the Minister – (a) sell or exchange any property or make any donation; (b) borrow any money, and any borrowing shall be for the purposes of this Act.

20. Estimates (1) The Authority shall, not later than 30 September in every year, submit to the Minister an estimate of the income and expenditure of the Authority for the next financial year. (2) Subject to subsection (3), the Minister shall, before the beginning of every financial year, signify in writing his approval of the estimate for that financial year. (3) Where the Minister signifies his approval under subsection (2), he may – (a) approve only part of the expenditure under any item; or (b) direct the Authority to amend the estimate in respect of any item in such manner as he thinks fit.

21. Strategic and action plans (1) For the purposes of effectively attaining the objects of the Authority, the Managing Director shall prepare and submit to the Board, for its approval, a 3-year strategic plan every 3 years and a detailed action plan every year. Acts 2009 807 (2) The 3-year strategic plan referred to in subsection (1) shall – (a) set out the operational and business objectives of the Authority; (b) outline the strategies and policies which the Authority intends to adopt to achieve the operational and business objectives. (3) The detailed action plan referred to in subsection (1) shall contain – (a) programmes to implement the strategies and policies of the Authority; (b) an operational plan, a financial plan and a human resources and performance management plan; and (c) an evaluation process to monitor the achievements of the Authority.

22. Execution of documents (1) Subject to subsection (2), any document shall be deemed to be executed by or on behalf of the Authority where it is signed by – (a) the Chairperson; or (b) the Managing Director. (2) A cheque of the Authority shall be signed by – (a) the Chairperson; and (b) the Managing Director or such other person as may be appointed for the purpose by the Board.

23. Donations and exemptions (1) Article 910 of the Code Civil Mauricien shall not apply to the Authority. 808 Acts 2009 (2) Notwithstanding any other enactment, the Authority shall be exempt from payment of – (a) any registration duty, fee or charge in respect of any document under which the Authority is the sole beneficiary; and (b) any other duty, rate, fee or charge.

24. Annual report and accounts (1) The Board shall, on or before 31 March every year, submit to the Minister an annual report together with an audited statement of accounts on the operations of the Authority in respect of the preceding financial year. (2) The Minister shall lay a copy of the annual report and audited statement of accounts of the Authority before the Assembly. (3) The auditor to be appointed under section 5(1) of the Statutory Bodies (Accounts and Audit) Act shall be the Director of Audit. PART V – REGISTRATION OF SMALL AND MEDIUM ENTERPRISES

25. Application for registration (1) Every person who operates a small enterprise or medium enterprise may apply for registration with the Authority in such form and manner as it thinks fit. (2) Every application made under subsection (1) shall be accompanied by such information and fee as may be required by the Authority. (3) Notwithstanding subsection (2), where a person applies for registration under the Business Registration Act and declares in his application that he wishes to apply for registration under this section, he shall, upon registration under that Act, be deemed to have applied to the Authority for registration under this section. Acts 2009 809

26. Grant or refusal of application (1) Subject to subsection (2), on receipt of an application made under section 25, the Board may grant or refuse the application. (2) Before taking a decision under subsection (1), the Board may – (a) refer the application for consideration to a technical committee; or (b) require the applicant to give such further information as may be necessary to determine the application.

27. Issue of registration certificate (1) Where the Board grants an application under section 26(1), it shall issue a registration certificate to the applicant, subject to such terms and conditions as it thinks fit. (2) Subject to the other provisions of this section, a registration certificate – (a) shall remain valid unless it is cancelled under section 28; (b) shall specify – (i) the name and address of the small enterprise or medium enterprise; (ii) the nature of its business activity; (iii) the location of its business activity; (iv) its expected or actual work force; (v) the terms and conditions attached to the certificate; (vi) such other information as the Board may determine. (3) The registration certificate shall be in such form, and shall be issued in such manner, as may be approved by the Board. (4) Where the holder of a registration certificate – (a) changes the name or address specified in the registration certificate; or 810 Acts 2009 (b) intends to change the nature of the business activity specified in the registration certificate, he shall immediately make a written application to the Managing Director for the registration certificate to be amended, specifying the reasons for the change and giving such further information or particulars as may be required by the Managing Director. (5) An application under subsection (4) shall be processed in the same manner as is provided for under sections 25 and 26 and, upon its approval, the person shall be issued with an amended registration certificate or a new registration certificate. (6) Where a small enterprise or medium enterprise, in respect of which a registration certificate has been issued, ceases to meet the criteria to be considered as a small enterprise or medium enterprise, as the case may be, the holder of the registration certificate shall inform the Managing Director in writing within 15 days of the cessation.

28. Cancellation or variation of registration certificate (1) Subject to the provisions of this section, the Board may cancel or vary the terms and conditions of a registration certificate where – (a) any information given to it by the holder of the registration certificate is false or misleading in any material particular; (b) the holder of the registration certificate, without lawful excuse, fails to – (i) comply with any requirement of this Act or any regulations made under it; (ii) pay any fee or charge levied under this Act or any regulations made under it; (c) a small enterprise or medium enterprise, in respect of which a registration certificate has been issued, ceases to meet the criteria to be considered as a small enterprise or medium enterprise. Acts 2009 811 (2) Before cancelling or varying a registration certificate, the Board shall, by notice in writing, within such reasonable time as it thinks fit, require the holder of the registration certificate to show cause why his registration certificate should not be cancelled or varied.

29. Notification of closure Where the holder of a registration certificate ceases his operations either temporarily or permanently, he shall immediately notify the Managing Director of the cessation. PART VI – MISCELLANEOUS

30. Offences (1) Any person who – (a) contravenes this Act or any regulations made under it; (b) in any application made under this Act, makes a statement which is false or misleading in any material particular; (c) wilfully obstructs or hinders an officer acting in the exercise of his functions, or, without reasonable excuse, fails or refuses to give to an officer any information required of that person; (d) without the approval of the Authority, uses the name or logo of the Authority, shall commit an offence. (2) Any person who commits an offence under subsection (1) shall, on conviction, be liable to a fine not exceeding 50,000 rupees and to imprisonment for a term not exceeding 2 years.

31. Legal proceedings (1) The Authority shall act, sue and be sued in its corporate name. (2) Service of process by, or on, the Authority shall be sufficient if made on behalf of, or on, the Managing Director. 812 Acts 2009

32. Confidentiality (1) No member or officer shall, during or after his relationship with the Authority, use or disclose any matter which comes to his knowledge in the performance of his functions, except for the purposes of administering this Act. (2) Any person who, without lawful excuse, contravenes subsection (1) shall commit an offence and shall, on conviction, be liable to a fine not exceeding 50,000 rupees and to imprisonment for a term not exceeding 2 years.

33. Regulations (1) The Minister may make such regulations as he thinks fit for the purposes of this Act. (2) Without prejudice to the generality of the power of the Minister under subsection (1), regulations may provide – (a) for the levying of fees and taking of charges; (b) for the use of the name or logo of the Authority; (c) that any person who contravenes them shall commit an offence and shall, on conviction, be liable to a fine not exceeding 50,000 rupees and to imprisonment for a term not exceeding 2 years.

34. Repeal The Small Enterprises and Handicraft Development Authority Act is repealed.

35. Consequential amendments (1) The Public Procurement Act is amended in Part II of the Schedule – (a) by deleting the following item – Small Enterprises and Handicraft Development Authority Acts 2009 813 (b) by inserting, in the appropriate alphabetical order, the following new item – Small and Medium Enterprises Development Authority (2) (a) Subject to paragraphs (b) and (c), the Statutory Bodies (Accounts and Audit) Act is amended in the Schedule – (i) in Part I, by inserting, in the appropriate alphabetical order, the following new item – Small and Medium Enterprises Development Authority (ii) in Part II, by deleting the following item – Small Enterprises and Handicraft Development Authority (b) For the purposes of the Statutory Bodies (Accounts and Audit) Act, the period extending from the commencement of this Act to 31 December next following shall be deemed to be the first financial year of the Authority. (c) Section 7(1) of the Statutory Bodies (Accounts and Audit) Act shall not apply in relation to the first financial year of the Authority.

36. Transitional provisions (1) In this section – “SEHDA” means the Small Enterprises and Handicraft Development Authority established under section 3 of the repealed Small Enterprises and Handicraft Development Authority Act. (2) Notwithstanding any other enactment, every person employed by SEHDA shall be dealt with in accordance with this section. (3) Every person who, at the commencement of this Act, is employed on the permanent and pensionable establishment of SEHDA shall be entitled to be transferred to the permanent and pensionable establishment of the Authority on terms and conditions which shall not be less favourable than those of his previous employment. 814 Acts 2009 (4) The period of service of every person employed on the permanent and pensionable establishment of SEHDA, who is transferred to the Authority under subsection (3), shall be deemed to be an unbroken period of service with the Authority. (5) No person employed on the permanent and pensionable establishment of SEHDA shall, on account of his transfer to the Authority or any resulting change in his job title, be entitled to claim that his employment has been terminated or adversely affected in breach of any enactment. (6) Any person employed on the permanent and pensionable establishment of SEHDA who, within 28 days of the commencement of this Act, does not accept to be transferred to the Authority, may opt for retirement on the ground of abolition of office and be paid his pension benefits in accordance with the Statutory Bodies Pension Funds Act and regulations made thereunder. (7) (a) Subject to subsection (8), any person employed on the permanent and pensionable establishment of SEHDA, against whom any disciplinary inquiry, investigation or proceedings are pending or in process at the commencement of this Act – (i) who is not interdicted, shall be transferred to the permanent and pensionable establishment of the Authority on terms and conditions which shall not be less favourable than those of his previous employment; (ii) who is interdicted, may opt to – (A) be transferred to the permanent and pensionable establishment of the Authority on terms and conditions which shall not be less favourable than those of his previous employment; (B) retire on the ground of abolition of office and be paid pension benefits in accordance with the Statutory Bodies Pension Funds Act and regulations made thereunder, as the case may be,where no disciplinary charge is subsequently found proved against him. Acts 2009 815 (b) For the purposes of paragraph (a)(ii)(B), the date of retirement on ground of abolition of office shall be deemed to be the date of commencement of this Act. (8) Any disciplinary inquiry, investigation or proceedings, pending or in process at the commencement of this Act, against any person employed on the permanent and pensionable establishment of SEHDA, shall be taken up, continued or completed by the Authority and any resulting order or decision shall have the same force and effect as if made by SEHDA. (9) Notwithstanding any other enactment, the contract of every person employed on a fixed term performance contract by SEHDA, which is valid at the commencement of this Act, shall be deemed to have been entered into by the Authority and shall remain governed by its existing terms and conditions. (10) All assets and funds of SEHDA shall, at the commencement of this Act, vest in the Authority. (11) All rights, obligations and liabilities subsisting in favour of, or against, SEHDA shall, at the commencement of this Act, continue to exist under the same terms and conditions in favour of, or against, the Authority. (12) Any registration certificate issued under section 25 of the repealed Small Enterprises and Handicraft Development Authority Act, which is valid at the commencement of this Act, shall be deemed to have been issued under this Act. (13) Any application made to SEHDA, pending at the commencement of this Act, shall be deemed to have been made to the Authority and shall be dealt with in accordance with this Act and any other relevant enactment. (14) Any act or thing done by SEHDA shall, at the commencement of this Act, be deemed to have been done by the Authority. (15) All proceedings, judicial or otherwise, commenced before and pending at the commencement of this Act, by or against SEHDA, shall be deemed to have been commenced, and may be continued by or against the Authority. 816 Acts 2009 (16) Where this Act does not make provision for any transition, the Minister may make such regulations as may be necessary for such transition.

37. Commencement (1) Subject to subsection (2), this Act shall come into operation on a date to be fixed by Proclamation. (2) Different dates may be fixed for the coming into operation of different sections of this Act. Passed by the National Assembly on the tenth day of November two thousand and nine. Ram Ranjit Dowlutta Clerk of the National Assembly BY AUTHORITY: THE GOVERNMENT PRINTER, LA TOUR KOENIG 1188/11/09 – 1467