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LGBTQI+’S HOPE FOR RECOGNITION RESTS WITH MINISTER

17/06/2023 09:41:00 Kwanele Dlamini

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MBABANE – The LGBTQI+ community’s hope for recognition now rests with the Minister of Commerce, Industry and Trade, Manqoba Khumalo.

This after the Supreme Court yesterday referred their association registration application to the minister, since the Registrar of Companies, Msebe Malinga, declined to register the Eswatini Sexual and Gender Minorities (ESGM), which is a company in the course of formation. The application was referred to the minister because Malinga already made a decision over the matter. The court ordered the minister to consider the application for registration afresh and advise the appellants of his decision in writing within 60 days of the judgment. The Supreme Court also found that the registrar of companies’ decision to decline the registration of the association is null and void.

Judgment

The appeal against the decision of the High Court full bench to dismiss their application by a majority judgment, issued by Judge Mumcy Dlamini and Judge Mzwandile Fakudze, was set aside. The office of the attorney general (AG) has indicated that it will file a review of the decision of the Supreme Court. Judge Cyril Maphanga, who formed part of the bench at the High Court, found in favour of the applicants. However, his minority judgment was dwarfed by his colleague’s judgment and it could not stand.

Melusi Simelane, in his capacity as the directors of ESGM, together with Senele Mdluli, Mbali Dlamini, Thuthu Magagula, Mary Da Silva, Sibongile Nxumalo and Thandekile Maziya were the applicants in the matter. They had taken the registrar of companies, minister of Commerce Industry and Trade and AG to court to review and set aside the registrar’s decision to refuse to register their association. When they were unsuccessful at the High Court, they approached the Supreme Court on appeal. The appeal was heard by Judge Phesheya Dlamini, who, during the hearing of the matter, said ‘there is something wrong with anybody who says there are no gays and lesbians in Eswatini’.

Other judges who heard the appeal are Majahenkhaba Dlamini, Stanley Maphalala, Robert Cloete and Acting Judge Luke Simelane. The appellants were represented by Human Rights Lawyer Sabelo Nhlabatsi, while Principal Crown Counsel Ndabenhle Dlamini appeared for government.
The Supreme Court was called upon to consider whether the High Court committed any misdirection in dismissing the applicants’ application to review and set aside the decision of the registrar and if the latter’s actions complied with the elements of the law. If the answer was in the negative to one of both questions, the court was to determine the remedy that the High Court ought to have granted the appellants.

The appellants’ arguments, according to Judge Phesheya, were largely in line with the conclusions in the minority judgment. Their slight departure from the minority judgment was that the court concluded that since the decision of the registrar stood to be reviewed and set aside in terms of the common law, there was no need to venture into possible constitutional infractions. It was contended for the appellants that the constitutional infraction on their rights were relevant and that indeed Judge Maphanga, while stating that it was not necessary to make such a determination, ventured into the constitutions infractions and determined in their favour.

Decision

Their contention, therefore, was that the registrar's decision was reviewable under both the common law and was being unconstitutional. In this regard, it was submitted for the appellants that; they desired to associate within the parameters of the law and sought that the registration of their association (ESGM) as a non-profit organisation with the objective of protecting human rights that include the rights of lesbian, gay, bisexual, transgender queer intersex (LGBTQI+) persons.

They further contended that registrar fell short of the elements of interpretation advocating for ‘broad, generous and liberal interpretations’ when it comes to sections pronouncing on human rights and freedoms and the converse ought to apply to sections that limit such rights. They also argued that the registrar abdicated his responsibilities as contained in Section 37 of the Companies Act of 2009 by referring the matter to the principal secretary (PS) and the AG. Their attorney, Nhlabatsi, told the court that the registrar's decision to refuse the registration was irrational as he relied on the tags of promoting same-sex relations.

He said the ESGM objectives were not unlawful and did not encourage sodomy as concluded in the majority judgment; and that the refusal to register ESGM amounted to a violation of the fundamental rights of affected persons as enshrined in the Constitution, 2005 namely; freedom of expression and association, the right to dignity, right to equality; and the prohibition against discrimination. Nhlabatsi stated that there was no legitimate justification for the violation of his clients’ rights and government failed before the High Court to discharge the onus that the limitations of the rights was justifiable.

On the other hand, government, through Principal Crown Counsel Ndabenhle, submitted that while the appellants favoured the minority judgment, government favoured the majority judgment. He said, according to government, the majority judgment was just and correct. Ndabenhle also submitted that the name and objectives of the association were calculated to mislead as it was not a lawful purpose and contravened Section 37 of the Companies Act.
Government further contended that the Constitution subjected the nation to God, yet ESGM advocated for what is ‘against the order of nature and their actions are traceable to the Bible; as depicted in the destruction of Sodom and Gomorrah by God; in the Book of Genesis’. According to the Roman-Dutch common Law, what ESGM was seeking through registration was morally unacceptable. The principal Crown counsel argued that freedom of assembly and association in Section 25 of the Constitution was limited by the right of others and public interest found in Section 14(3). According to government, the appellants had not shown that the provisions of Section 37(3) of the Companies Act and Sections 14 (3), 24 (3) and 25(3 of the Constitution were not reasonably justified on an open and democratic society.

Legislature

Ndabenhle said: “If there is a lacuna in the law, the appropriate organ to address such is the Legislature and not the court. Therefore, the appellants ought not to ‘use judicial craft’ to ‘legitimise gay and lesbian liaisons and such other indecent offences and create a new breed of rights which do not exist in the Constitution of the Kingdom of Eswatini’.” Out of the nine grounds of appeal, Ndabenhle said only one was a proper ground of appeal, namely the ground on lawful purpose, and the rest were reasons for the majority judgment.

He stated that the minority judgment was fraught with misdirection. In his analysis, Judge Phesheya said he fully agreed with the conclusion of Judge Maphanga in the minority judgment regarding the registrar's dereliction of duty. However, Judge Phesheya said he respectfully disagreed with how Judge Maphanga proceeded with the matter after this finding. “In my view, the finding should have ended any further enquiry and the decision of the registrar declared null and void ab initio as it was irretrievably and incurably tainted,” said Judge Phesheya.

Judge Phesheya said, clearly Section 37 only made mention of only two functionaries, where the registration of a company or an association was concerned, namely; the registrar and the minister. “Therefore, it was not legally permissible for the registrar to either perform this function conjunction with persons not so empowered by the Act or delegate his powers to such persons. In this regard, one does not have to look any further than what is argued for the respondents (government) in their papers,” said the judge. Judge Phesheya agreed with Judge Maphanga that the registrar of companies’ conduct amounted to a dereliction of duty and ‘in my view legally fatal to the entire process in the determination of the appellants’ application’.

Hierarchy

“This is more so in consideration of the fact that the two government officials who were enlisted by the registrar are senior to him in terms of the hierarchy of the government. The registrar does not take the court into confidence as to the advice and an assistance sought and/or given. On the one hand, the attorney general is the principal legal representative and advisor of the State. On the other hand, the principal secretary is the administrative head of the ministry.

“This is complicated by the fact that the attorney general, whose advice was solicited and admitted by the registrar, is now representing the registrar and the minister in court in defence of a process he was invited to participate in. The registrar's qualifications are prescribed such that he is expected to be conversant with the law,” said Judge Phesheya. During arguments of the appeal, Lawyer Nhlabatsi said government seemingly emphasised on sexual intercourse and ignored the objects of the association they intend to register. He told the court that the court that the LGBTQI members were Christians and they fellowshipped. He said they were not calling upon the court to legalise what was illegal.