Another ‘No’ for Eswatini’s LGBTI community

6 May 2022 · Carmel Rickard

A new judgment from Eswatini’s high court effectively supports a decision by the registrar of companies who refused to register an association called Eswatini Sexual and Gender Minorities. Two judges of the three-court bench held that the registrar’s decision had been properly made. In a dissenting decision, the third judge approached the question very differently. He found that in terms of the law, the registrar of companies should have taken the decision whether to register the association, but that the ministry of commerce and industry made the decision instead. As this was a misuse of administrative power, the decision should be set aside and the registration of the association should be allowed. But there was a glimmer of light for Eswatini’s sexual minorities: despite its conclusion on the registration issue, the court’s majority wrote that members of the LGBTI community had ‘a right to life, liberty, privacy or dignity’ among other rights.

Read judgment

This case concerns Eswatini’s LGBTI community. Eagerly anticipated by both sides of the argument, it must have been something of a disappointment to all involved that judgment was delayed for so long.

Right at the start of the decision, however, there’s an apology seeking to explain why the matter, heard 18 months ago, was not handed down earlier.

Judge M Dlamini, author of the majority decision, acknowledged that the judgment had been ‘inordinately delayed’. This was because she had taken ‘accumulated leave’ and when she returned to work in the last quarter of 2021, she was ‘confronted with voluminous pleadings’ involving almost 2500 pages from the applicants and more than 500 pages on behalf of the respondents, with a 219-page book of pleadings.

She said that she greatly regretted the delay and was grateful to all concerned for their patience. But, a reader might wonder, was it worth the wait?

Philosophical questions

The case concerned a group of applicants who wanted to register an organisation with the Registrar of Companies. From the name of the organisation alone, a reader would be able to guess the outcome of the matter; it is called, ‘Eswatini Sexual and Gender Minorities’.

Since the Eswatini government policy is unfriendly to gay people, to put it mildly, there would have been little doubt as to the outcome of the registration attempt.

One of the initial difficulties about the decision is that it is only in the minority, dissenting judgment, that the parties, history and issues really become clear, with the majority focusing on philosophical questions.

Delays

The applicants had asked to reserve the name of their association with the Registrar of Companies, part of the laborious process required to run a lawful NGO in Eswatini. While they were successful in their reservation of the name, they were later turned down when they applied for registration, although they had complied with the other technical requirements such as filing their articles of association.

The organisation appears to be dogged by delays: after the applicants lodged their application there was no response, and they had to go to court for an order requiring that a decision be made, before there was any answer.

When it was conveyed, there would have been little surprise that the answer was negative. They were told that the registrar rejected their application, among other reasons, because all registered bodies had to be ‘registered for a lawful purpose’.

Blasphemy

One section of the Companies Act quoted by the registrar to buttress the decision was s 37(3), which says that approval won’t be given to a company if its name will ‘mislead’ the public, or ‘cause annoyance or any offence to any person or class of persons or is suggestive of blasphemy or indecency’.

The applicants asked for ‘a review or setting aside’ the registrar’s decision and a declaratory order that the decision was unconstitutional.

The majority decision, often difficult to follow, roams over time and space. There’s a long section on comparative jurisprudence, involving South Africa, the USA, New Zealand and India. Then the court comments on various international instruments – the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights. Finally, it returns to Aristotle. His teaching on natural rights ‘would be apposite’ to explain, say the judges, and details are then supplied of his teaching on the ‘polis’ and the ‘oikos’, their meaning and application.

Erotic matters

There was ‘no doubt’ that the company the applicants wanted to register intended ‘to sell information’, said the majority. Without quoting reasons for saying this, the court wrote that, from the objectives of the association, ‘it intends to sell information relating to affectionate or erotic matters of the LGBT.’

But ‘are these not matters of the bedroom,’ asks the court, before concluding that the law ‘does not countenance an intersection’ between the public and the private.

The majority dismissed the application, having concluded that while ‘LGBTs’ have various basic constitutional rights, these rights were subject to laws ‘prevailing in the kingdom’.

Minority

The crisp minority judgment urges a ‘clear head’ on how to approach the application and notes that the primary relief being sought is ‘judicial review of the registrar’s decision’ refusing to register the applicant’s organisation.

Judge Cyril Maphanga points out that judicial review provides a check on the exercise of administrative power, ‘against the scourge of illegality and irrationality that may afflict such power’, while at the same time promoting the ideals of fairness and transparency.

In this case, as with many others involving judicial review, the question was whether the decision-maker, deliberately or inadvertently, mistook the empowering provisions under which the decision had to be made and came to a decision so erroneous that it could be said that he or she misconceived the nature of the discretion or took irrelevant considerations into account, or ignored what was relevant.

Objectionable

The law in Eswatini requires that ‘any association’ wishing to operate legally in that country, has to be registered in terms of the very laws under which the applicants had applied. It was thus not correct for the state to argue that the applicants had travelled the wrong road in their attempts to legalise their association.

The judge also asked how it was possible that the registrar approved the name proposed for reservation, but then found the name so objectionable that it formed the basis of his refusal to register the association?

The registrar made no reference to any of the stated objects in the purpose clause of the memorandum and articles of association to explain the rejection. And there was no indication of what it was about the wording of the name that led him to conclude it was ‘calculated to mislead, cause offence’ or be suggestive of either blasphemy or indecency – the only criteria over which he had discretion to refuse registration.

Fatal disclosure

In examining these questions, Judge Maphanga detected a ‘fatal disclosure’ by the respondents: it was not in fact the Registrar of Companies who made the decision refusing the applicants’ registration. In an affidavit that forms part of the papers, the registrar says that he had issued reasons for the refusal to register, and that this was a decision ‘taken by the ministry’.

Thus, there was written evidence that the decision was in fact made by the ministry and not the registrar, and that the registrar had merely rubber-stamped the decision by putting it on his letterhead. From the internal evidence of the papers, it was reasonable to conclude that there was an instruction from a person in the ministry to reject the registration, despite the fact that the statutory power lies ‘exclusively’ with the registrar and cannot be outsourced to any other person or authority.

Because of the improper exercise of the discretion to make the key decision, the judge found that the respondents acted outside the parameters of the Companies Act, and that the way the decision was made was a ‘classic illustration of the ultra vires doctrine in action.’

Grossly irregular

‘I can think of no clearer example of an irregularity of administrative power contrary to the letter of the enabling statute conferring it.’

The court application could be decided on these grounds alone, the judge found, since the decision to refuse the application ‘was reached in a grossly irregular manner, without legal merit or basis’; it was made outside the powers of the Act, and so was liable to be set aside as null and void.

The judge would thus have set aside the decision refusing registration and have ordered the registrar to ensure the contentious company was registered under the Companies Act. He would also have awarded costs against the government.

Anxiousness

Responding to the judgment, Anneke Meerkotter, executive director of the Southern Africa Litigation Centre which supported the litigation, described the decision as a ‘testimony to the anxiousness of Eswatini courts when dealing with matters relating to freedom of association and expression in the current political context.’

‘A matter of justice’, Legalbrief, 3 May 2022

Carmel Rickard

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