Mbabane – The High Court has stopped the commission of inquiry into the operations of the Eswatini Medical Christian University (EMCU), ruling that the university council had established sufficient grounds for an interim interdict pending a challenge to the legality of the committee’s appointment.
Justice S.M. Masuku confirmed the rule nisi issued on June 25, 2026, restraining the committee from continuing with or giving effect to any investigation, proceedings or activities relating to the inquiry.
The judgment was delivered yesterday in the matter between the EMCU Council and Prime Minister Russell Mmiso Dlamini and eight others.
The court ordered that the interim interdict would remain in force pending the final determination of the challenge to the appointment and establishment of the committee. The EMCU Council was also ordered to institute the main application within seven days, while the Prime Minister was ordered to pay the costs of the application on the ordinary scale.
The council had approached the High Court seeking to stop the inquiry pending a substantive review and/or declaratory proceedings challenging the legality of the committee established to investigate EMCU.
The court found that the council had demonstrated a prima facie right, although open to some doubt, a well-grounded apprehension of irreparable harm, that the balance of convenience favoured the interdict and that there was no other satisfactory remedy.
The dispute arose after the Prime Minister announced the establishment of the commission of inquiry on June 18, 2026. Legal Notice No. 98 of 2026 had been issued on April 15 appointing the committee members under Section 3 of the Commissions of Enquiry Act, 1963.
The committee was due to be introduced to EMCU on June 24, the same day the council approached the High Court on an urgent basis to prevent the inquiry from commencing.
The council challenged the Prime Minister’s authority to establish the committee, arguing that the minister responsible for EMCU, rather than the Prime Minister, had the relevant authority.
It also questioned whether the required Cabinet approval existed and challenged the procedure used to establish the committee.
Another concern raised by the council was that EMCU was already subject to investigations by the Anti-Corruption Commission, Parliament and the Auditor General.
The council argued that having four investigations into the same institution could result in duplication, inconsistent findings and unnecessary use of public resources.
The respondents opposed the application, maintaining that the Prime Minister, as a Minister, had the power to establish the committee under the Commissions of Enquiry Act.
They also relied on a memorandum signed by the Principal Secretary to Cabinet on June 8, 2026, which they said demonstrated Cabinet approval for the establishment of the committee.
The respondents further argued that there was nothing unlawful about several bodies investigating the same institution and that the council had failed to demonstrate prejudice sufficient to justify stopping the inquiry.
Justice Masuku, however, found that the council had raised legal questions that were more than merely fanciful.
The court held that the interpretation of Legal Notice No. 189 of 2015, concerning the assignment of ministerial responsibilities, raised a genuine legal question regarding the Prime Minister’s authority.
It also found that the issue surrounding Cabinet approval and the memorandum relied upon by the respondents raised a serious matter for consideration by the court hearing the main challenge.
The court further found that the council’s complaint about four concurrent investigations was not trivial, particularly because it concerned the efficient use of public resources and whether public power was being exercised rationally.
On the issue of harm, the court found that compelling EMCU to participate in an investigative process whose lawful constitution was being challenged could cause damage that could not be adequately remedied later.
The court noted that once evidence had been received, witnesses interviewed and findings made, reputational damage and adverse inferences arising from the process could not simply be erased by a later court order.
The fact that documents and records relevant to the investigation had already been seized during a court-authorised search and seizure also placed EMCU at a disadvantage, according to the judgment.
The court also considered the principle of separation of powers, noting that courts should generally be cautious about restraining an organ of state from exercising statutory powers.
However, it found that the appointment of the committee was an administrative decision rather than a highly policy-driven decision and that the potential harm to EMCU outweighed the separation-of-powers concerns in the circumstances.
The court said the public interest was also protected by the existence of the three other investigations into EMCU and that stopping the committee temporarily would delay, rather than permanently prevent, the investigation.
The court therefore concluded that EMCU had satisfied all four requirements for an interim interdict.
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