Mbabane – The High Court has put the brakes on the Commission of Inquiry into the operations and affairs of The Luke Commission (TLC), following an urgent application challenging the legality of the probe.
The inquiry was established under Government Gazette Legal Notice No. 144 of 2026, with TLC now asking the court to review and set aside the decision to establish the Commission.
TLC founder and senior representative Dr Harry Vanderwal told the court that the Commission had already begun its work at the organisation’s premises on October 1, despite TLC having asked that the process be held in abeyance pending the court challenge.
According to Vanderwal’s founding affidavit, the Commission arrived at TLC’s premises at about 10am, accompanied by additional persons who were not members of the Commission, and proceeded with a physical inspection of the healthcare facility.
TLC argues that the inquiry is unlawful, irrational and goes beyond the powers of the bodies already mandated to deal with some of the issues contained in its terms of reference.
The organisation says several matters targeted by the Commission are either already concluded or pending before other statutory and adjudicative bodies.
Among the matters cited is a labour dispute involving about 30 former employees, which TLC says is currently before the Conciliation, Mediation and Arbitration Commission (CMAC).
TLC further told the court that the Government’s E50 million subsidy to the organisation had already been subjected to audits by the Ministry of Finance and the Auditor-General, with no evidence of misappropriation or abuse of the funds found.
It argues that reopening matters already investigated amounts to duplication and creates the possibility of conflicting outcomes.
The organisation also challenged the Commission’s proposed investigation into fees charged to patients, arguing that there is no prescribed national tariff against which its fees can objectively be assessed.
On the issue of health practitioners, TLC argued that determining whether practitioners are qualified, registered or licensed falls within the statutory mandate of the Eswatini Medical and Dental Council.
The organisation also questioned the Commission’s mandate to investigate its governance and structural arrangements, arguing that TLC is a private non-profit entity registered under the Companies Act.
Vanderwal further alleged that the Commission’s establishment was influenced by ulterior motives, pointing to an earlier communication from the Office of the Prime Minister in which TLC was allegedly directed to become a state-owned entity.
TLC maintains that the Government’s contribution accounts for about 15 per cent of its budget and therefore argues that the broad scope of the inquiry amounts to an excessive intrusion into the affairs of a private organisation.
The organisation further raised concerns about the potential disclosure of confidential patient information, commercial information and matters currently before other legal forums.
In its urgent application, TLC sought an interim order restraining the Commission and its members from conducting or continuing with the inquiry insofar as it concerns TLC.
It also wants the court to suspend the operation of Legal Notice No. 144 of 2026 and ultimately review and set aside the decision to establish the Commission.
The first to fourth respondents, represented by the Attorney-General, have entered an opposition to the application.
They have raised preliminary points of law, including that TLC, described in its papers as a private non-profit healthcare entity, allegedly has no legal personality to sue or be sued in its own name.
The respondents have also challenged the authority of Vanderwal to institute the proceedings on behalf of TLC, arguing that he has not pleaded that he was authorised to depose to the founding affidavit or that there was a resolution authorising the litigation.
The respondents are seeking dismissal of the application with costs.
The matter was enrolled as an urgent application, with TLC arguing that the continued operation of the Commission could disrupt healthcare services, expose confidential information and cause irreparable harm to its operations and reputation.
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