MANZINI – The Luke Commission has returned to the High Court in a fresh attempt to stop the commission of inquiry appointed to investigate its affairs.
The Luke Commission (TLC) argues that its establishment is unlawful, irrational and unconstitutional.
The non-profit healthcare organisation, through its founder and senior representative, Dr Harry Vanderwal, has launched another urgent application seeking an interim order suspending the commission’s operations pending a review of the decision to establish it.
The latest court action came hardly a day after the High Court ruled in favour of government on a preliminary point of law in the organisation’s previous application. However, the earlier proceedings, which were dismissed by Judge Zonke Magagula, did not result in the court determining the substantive legality of the commission of inquiry.
In his founding affidavit, Vanderwal explains that the previous application, which was launched on or about October 2, 2026, encountered difficulties after government’s legal representatives challenged his authority to institute the Q
Government had argued that TLC lacked the necessary legal standing to approach the court and that Vanderwal, as the deponent to the founding affidavit, had not demonstrated that he was authorised to institute the application.
The matter first appeared before Judge Magagula on October 5, 2026. By mutual agreement, the parties agreed to an adjournment to allow TLC to provide documents establishing its legal standing and Vanderwal’s authority to act on its behalf.
According to the affidavit, an interim order preserving the status quo was granted pending the determination of the preliminary issues.
TLC subsequently submitted its Memorandum of Incorporation, Articles of Association and a Board resolution authorising Vanderwal to institute the proceedings.
The resolution, which was signed by the Board chairperson and secretary, was intended to demonstrate that the founder had the necessary authority.
However, when the matter returned to court on October 14, 2026, government’s legal representative, Principal Crown Counsel Ndabenhle Dlamini, raised another point of law.
He argued that the resolution did not demonstrate that a majority of the directors had attended the meeting and voted in favour of authorising Vanderwal to institute the proceedings.
After hearing arguments, Judge Magagula reserved judgment, upholding government’s objection on the question of the authority of the deponent.
In the new application, Vanderwal states that the judgment prompted TLC to relaunch its urgent proceedings because the urgency surrounding the commission’s investigation remains.
He argues that the previous application was not dismissed after the court considered the substantive grounds challenging the commission’s establishment, but on a technical issue concerning the authority to institute the proceedings.
To address the issue that arose in the previous application, Vanderwal says TLC’s Board of Directors convened on October 28, 2026, following the judgment.
“All the directors were present at the meeting and the required quorum was met in accordance with the organisation’s governance documents. No director objected to the convening of the meeting or considered it invalid or improperly constituted. All matters on the agenda were reportedly approved unanimously,” Vanderwal informed the court.
The veracity of these allegations is still to be tested in court. Government is yet to file its answering papers.
The Board, according to the affidavit, resolved to institute, defend and fully participate in the legal proceedings challenging the Commission of Inquiry established through Government Gazette Legal Notice No. 144 of 2026.
It is said to have also authorised Vanderwal to act as the organisation’s representative and legal administrative agent.
The authority purportedly granted to him includes instituting, defending and conducting legal proceedings, including appeals and interlocutory applications; engaging and instructing attorneys, advocates and experts; signing affidavits and other court documents; receiving court documents and notices; negotiating procedural arrangements; and taking all necessary steps to protect the organisation’s legal and institutional interests.
Vanderwal maintained that the authority was not unilateral or derived merely from his position as founder and senior representative, but based on the organisation’s constitutional documents and the unanimous decision of its Board.
He further argued that TLC had complied with Article 36 of its Articles of Association and the relevant provisions of the Companies Act, 2009.
He cited sections 58 and 59 of the Companies Act, which recognise directors’ powers and their ability to delegate authority, including through a power of attorney.
At the centre of the new application is TLC’s contention that the decision to establish the commission of inquiry was not rationally connected to its stated purpose and was influenced by ulterior motives.
Vanderwal argued that several allegations forming part of the commission’s terms of reference had already been investigated by other bodies, with some having reached definitive outcomes, while others are currently before statutory or adjudicative institutions.
He contended that allowing the commission to proceed would result in duplication of investigations, possible conflicting findings and an infringement of the separation of powers between the Executive, Legislature and Judiciary.
The application identifies four broad legal principles, which TLC says are implicated by the commission’s establishment: Separation of powers, lis pendens, res judicata and constitutionalism.
The organisation argues that some of the matters are already pending before other bodies and should not be investigated simultaneously, while others have already been determined by institutions with the necessary authority.
It also contends that the commission’s establishment constitutes reviewable administrative action because the decision allegedly failed to take into account rationality, legality and the existence of other mechanisms for dealing with the allegations. TLC is represented by Nhlanhla Ginindza of N.E. Ginindza Attorneys, who instructed Advocate Boyce Mkhize. The matter will be heard on Wednesday.
