Mbabane – The Luke Commission has accused Parliament of overstepping its powers by directing an inquiry into the organisation’s operations, arguing that the decision to establish the commission of inquiry was legally the responsibility of the Minister of Health.
The organisation is challenging the establishment of the inquiry through Legal Notice No. 144 of 2026, arguing that the minister could not simply act on Parliament’s resolution without independently exercising the discretion conferred on the office by the Commissions of Inquiry Act of 1963.
In a replying affidavit before the High Court in case 2457/26, The Luke Commission v Minister of Health and 18 Others, the organisation’s representative, Dr Harry Vanderwal, contends that the process raises constitutional concerns about the separation of powers and the legality of the inquiry.
The Luke Commission wants the court to review and set aside the minister’s decision to establish the inquiry, with costs, including the costs of counsel.
Vanderwal argues that Section 3(1) of the Commissions of Inquiry Act empowers the minister to establish a commission through a notice published in the Government Gazette. He maintains that the statutory responsibility required the minister to make an independent decision rather than merely give effect to Parliament’s resolution.
The organisation alleges that the minister effectively rubber-stamped Parliament’s decision, allowing the legislature to determine a matter that the law assigns to the executive. It argues that this renders the decision unlawful and open to review.
Government is opposing the application, maintaining that the inquiry was lawfully established following public complaints and parliamentary oversight. In an answering affidavit, Acting Principal Secretary in the Ministry of Health Rev. Anthony Masilela argues that the inquiry is intended to investigate concerns about the organisation and report its findings.
The respondents maintain that the inquiry is a fact-finding exercise and is not intended to adjudicate disputes or impose penalties.
Government cites complaints and public funding
The dispute follows complaints brought to the attention of Government about the Luke Commission’s operations.
According to a supporting affidavit by Bheki Bhembe, Principal Secretary in the Prime Minister’s Office, Prime Minister’s Office officials met a group claiming to be former employees of the Luke Commission on August 10, 2026. The group was led by Nkosinathi Nhlabatsi and Ntokozo Mabundza.
Bhembe states that Acting Government Spokesperson Thabile Mdluli was subsequently instructed to issue a press statement outlining the complaints and assuring the nation that Government would address the matter.
The inquiry’s terms of reference cover several areas, including alleged unfair labour practices, fees charged to patients, the use of Government funding, staffing and clinical personnel, medicines and the organisation’s alignment with national health policy.
A key issue is the annual E50 million Government subvention provided to the Luke Commission. Government wants the inquiry to examine whether the money was disbursed and used for its intended purposes, including salaries, utilities, laboratory equipment, transport and pharmaceuticals.
The Luke Commission disputes the suggestion that Government funding accounts for all its income and operating costs, pointing out that it also receives support from donors. It argues that the inquiry should not treat its entire financial position as being dependent on the state subvention.
Government, however, maintains that the inquiry is entitled to investigate the use of public funds, regardless of the organisation’s other sources of income.
Luke Commission questions need for inquiry
Vanderwal also argues that the inquiry is unnecessary and could duplicate work already undertaken by other institutions.
The organisation says its financial affairs have been examined by the Auditor-General and PwC, and relies on reports it says contain no adverse findings regarding its handling of Government funds. The reports are attached to its court papers as exhibits EV10 and EV11.
Government disputes the argument that previous audits settle all the issues raised. It maintains that the inquiry must establish whether the E50 million subvention was used for its intended purpose and says the existence of previous audits does not prevent further investigation.
The Luke Commission has also questioned whether the inquiry should examine patient fees when, according to its papers, there is no national tariff framework against which such charges can be assessed. It argues that investigating the charges against an unclear policy standard could result in arbitrary conclusions.
Government’s position is that the inquiry can examine the issue and make recommendations that may inform future funding and health policy.
The organisation further argues that certain matters within the inquiry’s terms of reference fall under the responsibilities of established statutory bodies.
It points to the Central Medical Stores’ role in the storage and distribution of medicines and the Eswatini Medical and Dental Council’s responsibility for professional registration and licensing. The Luke Commission argues that the inquiry should not displace or interfere with the functions of those institutions.
Government maintains that the commission can investigate the concerns and make findings or recommendations without taking over the statutory responsibilities of other bodies.
Labour disputes already before CMAC
The employment-related aspects of the inquiry have also been challenged by the Luke Commission.
According to the organisation’s papers, a dispute involving 30 employees is already before the Conciliation, Mediation and Arbitration Commission (CMAC) under case SWMZ 310-26.
The matters raised by the employees reportedly include alleged unfair dismissal, victimisation, underpayment, unpaid overtime, provident fund contributions and terminal benefits.
The Luke Commission argues that investigating issues already before CMAC could prejudice the parties, duplicate existing processes or lead to conflicting outcomes.
It also maintains that labour-related concerns fall within the responsibilities of institutions such as CMAC and the Commissioner of Labour.
Government disputes the claim that the inquiry would duplicate those proceedings. It argues that CMAC deals with conciliation, mediation and arbitration, while the commission of inquiry has a broader fact-finding mandate.
Government further maintains that the inquiry can consider excluding specific matters that are pending before other forums while investigating other aspects of the organisation’s operations.
Dispute over quality assessment
Vanderwal also relies on a Ministry of Health quality assessment which, according to the Luke Commission, gave the organisation an overall rating of 98.8 per cent.
The organisation says the assessment recorded 100 per cent ratings in areas including access, assessment and continuity of care; patient care; medication management; patients’ rights and education; infection prevention and control; patient safety and quality improvement; and facility management, safety and support services.
It further cites a reported rating of 83.8 per cent in governance and 96.1 per cent in human resources and education.
The Luke Commission argues that these results support its position that its operations have previously been assessed by the Ministry of Health.
Government has disputed having a record of the ratings cited by Vanderwal and has put the organisation to proof of the claims. It maintains that the inquiry should be allowed to examine the issues falling within its terms of reference.
Commission began work despite objection
The Luke Commission further alleges that the inquiry proceeded with its work despite the organisation having asked for the process to be paused while its legal challenge was considered.
According to its papers, the commissioners conducted their first site visit on October 1, 2026. Vanderwal alleges that comments made by commissioners during the visit suggested that conclusions had already been reached before the organisation had fully presented its position.
The organisation has also raised concerns about alleged prejudgment, including comments it characterises as racist, as well as the potential disclosure of confidential information and disruption to its work.
It argues that the inquiry could divert resources from its clinical services and prejudice ongoing employment proceedings. The Luke Commission also contends that it has not been given sufficient information about some of the public complaints to respond fully to the allegations against it.
Government disputes the suggestion that the inquiry is driven by improper motives. It maintains that the commission is intended to gather information, examine the complaints and report its findings, and that the Luke Commission will have an opportunity to present its position.
The organisation has also argued that it is being singled out, while concerns affecting other health institutions, including Mbabane Government Hospital, have not been subjected to the same process.
Government’s position is that the complaints concerning the Luke Commission warrant examination and that the inquiry should be permitted to carry out its mandate.
Government opposes application
In addition to defending the legality and purpose of the inquiry, the respondents have raised preliminary objections to the court application.
The Government respondents challenge the Luke Commission’s standing to bring the proceedings, Vanderwal’s authority to act on its behalf and whether a proper organisational resolution was adopted authorising the litigation.
They are asking the court to dismiss the application with costs.
The Luke Commission, meanwhile, maintains that the minister’s decision was unlawful and that the inquiry should not continue in its present form.
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