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LBGTI CASE: JUDGE REMAINS, LAWYER RECUSED

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  MBABANE – Whether the LGBTI community will finally have their association registered or not by government is now in the hands of a full bench of the High Court.


LGBTI is an acronym for lesbian, gay, bisexual, transgender and intersex.
The bench which will hear and determine the matter comprises Judges, Mumcy Dlamini, Mzwandile Fakudze and Cyril Maphanga.
The matter was scheduled to be heard yesterday but Judge Mumcy disclosed that she was related to lawyer Mbuso Dlamini who represented government.
She disclosed that Mbuso was her brother-in-law and enquired from lawyer Thulani Maseko if he was comfortable with her being part of the bench.  Maseko, who is representing the LGBTI, then asked to be given a chance to consult with his clients.


 The matter was then adjourned briefly and the judges, as well as the attorneys, proceeded to chambers where it was agreed that Judge Mumcy should continue being part of the bench, but Mbuso should excuse himself.
The State will now be represented by Principal Crown Counsel Ndabenhle Dlamini, who was assisting Mbuso in the matter.
The matter was then postponed to July 23, 2020 for arguments.


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.
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 Principal Secretary in the Ministry of Commerce, Industry and Trade, Siboniso Nkambule, 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 generation as well as the public interest.”


Legalise


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 allowing 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 LGBTI through the back door,” contended the PS.


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 stipulated 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 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 did 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.

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