Mbabane, Eswatini, 30 July 2026: The Eswatini Sexual and Gender Minorities (ESGM) and its co-applicants have filed a replying affidavit in the High Court of Eswatini in Simelane (N.O.) & Others v Minister of Commerce, Industry and Trade & Others, Case No. 2623/23. The reply responds to the answering affidavit filed by the Minister of Commerce, Industry and Trade in opposition to ESGM’s application, and paves the way for the matter to be set down for hearing.
In his answering affidavit, the Minister maintains his refusal to register ESGM on the grounds of unlawful purpose, a misleading or morally offensive name, and immoral association. He contends that registering the organisation would amount to promoting acts criminalised under the laws of Eswatini and that customary law does not recognise same-sex relationships.
In reply, the applicants argue that the refusal is irrational and bears no rational connection to the purpose of the Companies Act of 2009. ESGM was formed to promote and protect the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) persons in Eswatini — a communal and group interest recognised by the Act. The applicants point out that sexual orientation is not a criminal offence in Eswatini, and that advocating for the rights of persons who face discrimination is not unlawful. They further argue that customary law has no bearing on the application, which concerns the constitutional right of all persons to form an association that advances their communal interests.
The applicants also note that the refusal itself creates stigma, by signalling that LGBTI persons are not entitled to associate, advocate and express themselves on the same terms as others.
Far from pursuing any unlawful purpose, the reply details how ESGM contributes to positive social change in communities across Eswatini — creating space for small, medium and micro enterprises at community events, promoting local handmade crafts at the Malkerns Centre flea market, and embarking on clean-up campaigns — in line with its objective of advocating for increased acceptance of LGBTI members of society in their communities and families.
The filing is the latest step in ESGM’s effort to register, which began in 2019. In June 2023, the Supreme Court of Eswatini unanimously declared the denial of ESGM’s registration unconstitutional and ordered that the decision be reconsidered. The Minister subsequently refused registration a second time, prompting the present application.
Melusi Simelane, founder and Board Chairperson of ESGM and first applicant, says, “When we founded ESGM, it was because LGBTI emaSwati had nowhere to turn — no organisation that could stand up for them openly and lawfully. Seven years and a unanimous Supreme Court judgment later, we are still being asked to justify our existence. Our reply says, in plain terms, what we have said from the beginning: we are not asking for new rights or for special treatment. We are asking for what the Constitution already promises every liSwati — the right to associate, to organise, and to be recognised as full members of society. Those promises cannot mean less for some citizens than they do for others, and we have every confidence that the court will affirm them once again.”
Sisanda Mavimbela, Co-Director: Advocacy and Programs at ESGM, says, “Our work has never been a secret and has never been a threat. We create space for small businesses at community events, we promote local handmade crafts, we run clean-up campaigns, and we advocate for families and communities to embrace their own children. That is the work the Minister says cannot be registered. Every year that registration is denied is another year LGBTI emaSwati are told that their lives, their health and their interests do not count. Registration will not change who we are — it will simply allow us to serve our community openly, lawfully and without fear, and to keep building an Eswatini in which no one is excluded from the life of their own country.”
The matter is yet to be heard, and a hearing date is awaited.
ESGM is represented by human rights lawyer Sibusiso Nhlabatsi of Motsa-Mavuso Attorneys, supported by the Southern Africa Litigation Centre (SALC).
ENDS
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