Mbabane, Eswatini: 16 June 2023 – Today, a five-panel bench of the Supreme Court of Eswatini passed a judgement setting aside the decision by the High Court that dismissed the application by Eswatini Sexual and Gender Minorities, ESGM, to be registered as a non-profit organisation.
In the 26-page long judgement, the bench unanimously declared that “the approach undertaken by the Registrar in this regard does not meet the legal requirements contained in Section 33 of the Constitution.” Section 33 provides for the right to administrative justice, including the right to be treated in accordance with the requirements of fundamental justice and fairness. This includes the right to procedural, lawful, and reasonable administrative action.
The decision on whether or not to register the organisation was declared invalid, and the Minister responsible for the registration of companies has been ordered to decide on the organisation’s registration status. The Supreme Court said the Minister must reconsider the application afresh, and a decision should be transmitted in writing within 60 days.
The Supreme Court agreed with the argument by the appellants that the minority judgement from the High Court was correct in deciding that the decision ought to be set aside because the Registrar unlawfully relied on advice from others.
Melusi Simelane, who brought the application on behalf of ESGM, welcomed the judgement. “Once again, the judiciary has reminded the executive branch of government and its functionaries of the importance of Section 33 of the Constitution. This is a monumental judgement and a constant reminder to the executive to exercise its powers with restraint and pay close attention to the rights and liberties of every citizen. We now hope the Minister will make a decision that will be remembered in history as protecting the rights of the marginalised LGBTIQ+ citizens of Eswatini without prejudice.”
“We are happy that the court set aside the initial decision of the Registrar, which was taken irregularly. We trust that the Minister will apply his mind properly to the matter, taking into consideration the appellants’ rights to association and expression,” said Anneke Meerkotter, SALC’s Executive Director.
“The judgement today brings hope to the organisation and its members as we witness the Supreme Court recognising the rights of all citizens by setting aside the decision of the Registrar. We hope that the decision by the Minister will not delay justice but uphold the rights of the people as per the Constitution.” Sisanda Mavimbela, ESGM’s Executive Director.
“I commend the judiciary for reminding government officials to execute their duties within the ambit of the law and policy guided by context and principles of fairness, non-oppression and justice.” Anna Mmolai-Chalmers, SALC’s LGBTIQ+ Program Manager.
Background:
In 2019, ESGM applied for the name reservation with the Registrar of Companies and was denied. The Registrar refused to register the association, stating that the association’s purposes were unlawful. The Registrar suggested that the Constitution does not include gays, lesbians, or intersex persons. On 29 April 2022, the High Court handed down its decision and ruled against setting aside the decision of the Registrar and registering ESGM, with a dissenting judgment asserting that ESGM be registered as a not-for-profit company. The Court, however, held that LGBTIQ+ persons are entitled to constitutional rights, including the right to life, liberty, privacy, dignity, not to be discriminated against, the right to freedom of expression, to associate and form a company and the right not to be subjected to inhumane and degrading treatment. The Court held that these rights were inherent to all persons based on their status as human beings. The Supreme Court heard the case on 5 May 2023.
For information, read the Fact Sheet here.
Download the Supreme Court ruling here.
ESGM is represented by Sibusiso Nhlabatsi on a brief from Motsa Mavuso Attorneys and supported by the Southern Africa Litigation Centre (SALC). For more information, contact ESGM’s Executive Director, Sisanda Mavimbela, at sisanda@eswatiniminorities.org or SALC’s LGBTIQ+ Program Manager, Anna Mmolai-Chalmers at annam@salc.org.za.
Issued by the Eswatini Sexual and Gender Minorities and the Southern Africa Litigation Centre.
