The Eswatini High Court has dismissed a legal challenge by The Luke Commission (TLC) against a government inquiry into alleged malpractice. The inquiry, established to investigate concerns over the organisation, had been temporarily halted by a court order. High Court Judge Zonke Magagula found that TLC had failed to prove its board of directors properly authorised the legal action against the government.
The dispute arose after the government established a Commission of Inquiry to investigate allegations of malpractice concerning TLC. The organisation subsequently approached the High Court, seeking to have the decision reviewed and overturned. TLC had claimed that the establishment of the inquiry was unlawful and sought to have the government notice authorising it set aside. The application was brought against the minister for health, the principal secretary, members of the Commission of Inquiry, and the attorney general.
The court initially granted an interim injunction against the commencement of the inquiry while the application was pending. However, the government questioned whether TLC had properly authorised its founder, Dr. Harry VanderWal, to bring the case. The government raised objections, including whether TLC had the legal standing to sue, whether VanderWal had authority to submit the founding affidavit, and whether he had been authorised to institute the proceedings.
The court examined TLC's Articles of Association, which set out how its directors must make decisions. The rules require at least one-quarter of the directors or two directors, whichever number is greater, to be present before the board can make valid decisions. Although TLC submitted a resolution authorised by two directors, it did not establish whether the required number of directors had been present when the decision was taken.
Judge Magagula rejected TLC's argument that a resolution signed by the chairman and secretary should be accepted as evidence of the board's decision. The judge explained that once the government had specifically challenged the authority to bring the case, TLC had to provide evidence showing that its board had properly approved the proceedings.
The judge also considered another provision of TLC's Articles of Association dealing with its power to institute and defend legal proceedings. He interpreted that provision as requiring all directors to sign the relevant authorisation for it to be valid. The document submitted to the court did not meet that requirement, and the judge found that TLC had failed to produce sufficient evidence that the decision had been properly authorised under its own rules.
The dismissal of TLC's application clears the way for the government inquiry to proceed. The inquiry will investigate allegations that TLC presented unqualified personnel to patients as doctors and prescribed medication intended for animals. The government has successfully challenged TLC's authority to bring the case, removing a legal obstacle that had prevented the inquiry from proceeding.
Key points
- The Eswatini High Court has dismissed The Luke Commission's legal challenge to a government inquiry into alleged malpractice.
- The court found that TLC had failed to prove its board of directors properly authorised the legal action against the government.
- The dismissal clears the way for the government inquiry to proceed, investigating allegations of malpractice concerning TLC.
