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MBABANE – “May I state that every other sexual action other than what is in the order of nature, capable of producing offsprings is unnatural and, therefore, prohibited in terms of our laws.”

This was one of the submissions made by the Principal Secretary (PS) in the Ministry of Commerce, Industry and Trade Siboniso Nkambule.
Government is vigorously opposing the application filed by the LGBTI community where it is seeking an order declaring that the registration of an association that seeks to promote their interests in Eswatini is not unlawful. LGBTI is an acronym for lesbian, gay, bisexual, transgender and intersex.


They also want the court to review and set aside the decision of the registrar of companies of refusing to register their association, Eswatini Sexual and Gender Minorities.
In his answering affidavit, the PS submitted that: “The actions of Eswatini Sexual and Gender Minorities constitute unnatural action which ought to be stopped in our society for purposes of our young generations as well as the public interest.”

He averred that the court could not compel the Eswatini Government to legalise LGBTI by setting aside and reviewing the decision of the registrar of companies and allow Eswatini Sexual and Gender Minorities to register as an association not-for-gain in terms of Section 7 of the Companies Act.
Nkambule said by setting aside and reviewing the decision of the registrar of companies, the court would be overstretching its mandate. 

“If granted, the orders will have a drastic impact on cultural, religious, social interest and legislative functions in Eswatini as it will amount to legalising LGBTIs through the back door,” contended the PS.
He told the court that the orders that were sought by the Eswatini Sexual and Gender Minorities were incompetent, misconceived, misplaced and if they might be granted, it would be an abuse of the court process. 

Nkambule contended that the applicant’s rights and fundamental freedoms had not been violated.
“What the registrar of companies did was only to apply limitations in terms of Section 14 (3) of the Constitution as well as applying the discretion given to the minister in terms of the Companies Act,” contended Nkambule. Section 14 (3) of the Constitution of Kingdom of Eswatini provides that: “

A person of whatever gender, race, place of origin, political opinion, colour, religion, creed, age or disability shall be entitled to fundamental rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others for the public interest.”
According to the PS, the applicants failed to lay clear grounds for the court to find the decision of the registrar of companies to be unlawful, unreasonable and irrational which would thereby render it unconstitutional.

When rejecting the application for the registration of the association, the Registrar of Companies, Msebe Malinga, pointed out that Section 27 (1) of the Constitution of the Kingdom of Eswatini stipulates that; men and women of marriageable age have a right to marry and establish a family.
 “It will be inappropriate for the registrar of companies to register an entity whose objectives are not provided for in the Constitution or any legislation,” reads part of Malinga’s responses to the lawyers representing the association.

Malinga stated that in contrast, the Constitution of the Republic of South Africa dealt with equality in Section 9 where it clearly prohibited discrimination on the basis of sexual orientation in no uncertain terms. 


The Constitution of South Africa, according to Malinga, provides that; “The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, sexual orientation, age, disability, religion, conscience belief, culture, language and birth.” He said the Eswatini Constitution does not include sex or sexual orientation.

The registrar of companies highlighted that based on the aforementioned, it was clear that discrimination on the basis of sexual orientation and sex was not protected by the Constitution of the Kingdom of Eswatini or in any of the country’s domestic laws. The matter is still pending in court and appearing for the State is Mbuso Dlamini from the Chamber of the Attorney General.  The applicants are represented by renowned human rights lawyer Thulani Maseko.

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