MBABANE – Minister of Commerce, Industry and Trade Manqoba Khumalo has declined the application by the LGBTIQ+ community to have their association registered.
He found that the objects of the proposed association sought to offend against the customary principles as preserved in the Eswatini Law and Custom, that a man and a woman should start and maintain a love relationship. The minister’s decision comes after the Supreme Court referred their registration application to him. This was after 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 had 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. The minister communicated his decision through a letter dated September 27, 2023. The letter was written and signed by Acting Minister of Commerce, Industry and Trade David ‘Cruiser’ Ngcamphalala.
Constitution
“Inasmuch as the Constitution of the Kingdom of Eswatini in Section 20, prohibits discrimination against any person on the grounds listed thereof, there is nothing that suggests the intention of the Constitution to include sexual orientation and gender identity as grounds for discrimination,” said the minister. He said in the absence of a clear prohibition of discrimination on the basis of sexual orientation and gender identity in the Constitution, the principles and rules of Roman Dutch Law were still enforceable as the common law of the country in terms of Section 252 of the Constitution.
“In exercise of powers given unto me in terms of Section 27(30 of the Companies Act/2009, I, therefore, decline your clients application to register the company. By the copy hereof, I direct the registrar of companies not to register Eswatini Sexual and Gender Minorities,” said the minister.
Applicants
Melusi Simelane, in his capacity as the Director 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 attorney general 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’.
During arguments of the appeal, Lawyer Sibusiso Nhlabatsi, who was representing the appellants, said government seemingly emphasised on sexual intercourse and ignored the objects of the association they intended to register. He told the court that the LGBTIQ+ members were Christians and they fellowshipped. He said they were not calling upon the court to legalise what was illegal. Government was represented by Principal Crown Counsel Ndabehle Dlamini.
