THE Supreme Court has delivered a judgment affirming the right of deported foreign nationals held in the country to access legal representation, dismissing an appeal brought by His Majesty’s Correctional Services (HMCS).
The ruling upholds an earlier High Court decision granting human rights lawyer Sibusiso Nhlabatsi permission to consult with deportees transferred to the country under a deportation arrangement with the United States (US).
The matter cited as commissioner general of His Majesty’s Correctional Services NO & Another v Nhlabatsi (102/2025) [2026] SZSC12 was heard on March 19, with judgment delivered on Thursday.
In a unanimous decision, a three-judge panel found no merit in the appeal and confirmed that denying legal access to detainees was unjustifiable, particularly where constitutional rights were concerned.
At the heart of the case was a dispute over whether Nhlabatsi had the legal standing to approach the courts and seek access to five foreign nationals detained at Matsapha Correctional Services Centre.
These individuals were among a group of migrants deported from the United States to the country around July 2025 under a bilateral agreement that has since drawn widespread criticism.
The deportees that are now over 15 are third-country nationals who had already served prison sentences in the US before being transferred to the country.
The arrangement, reportedly valued at US$5.1 million, has raised serious concerns among legal experts and human rights advocates, particularly regarding the continued incarceration of individuals who have completed their sentences.
Nhlabatsi, acting as a correspondent attorney, had been instructed by American lawyers representing the detainees to consult with them locally.
However, the Correctional Services denied him access, arguing that the detainees themselves had not explicitly requested his services and allegedly showed no interest in meeting him.
RELATED | Government defends deportees’ treatment after Cambodian claims
In response, Nhlabatsi approached the High Court on an urgent basis, seeking an order compelling authorities to grant him access. He argued that he was duly mandated by the detainees’ legal representatives in the United States and that denying him access infringed on the detainees’ constitutional right to legal counsel.
The High Court ruled in his favour, dismissing the preliminary objection raised by the appellants and granting him permission to meet with the detainees. Dissatisfied with this outcome, the commissioner general appealed the decision to the Supreme Court.
Before the apex court, the appellants maintained that the High Court had erred in its findings, particularly on the issue of locus standi.
They argued that Nhlabatsi lacked a direct mandate from the detainees themselves and that instructions from foreign attorneys did not establish a legally recognised relationship.
They further contended that the High Court had failed to properly address their preliminary objection and that its decision to grant access was, therefore, flawed.
However, the Supreme Court firmly rejected these arguments.
In its judgment, the court held that the High Court had indeed considered and dismissed the issue of locus standi, providing sufficient reasoning for its conclusion. It clarified that a court was not obligated to restate every preliminary ruling in its final order, provided the reasoning is evident in the judgment.
The judgment further addressed the use of hearsay evidence, which had been a point of contention in the proceedings.
The court reiterated that hearsay evidence may be admissible in urgent applications, especially where the source of the information is clearly identified and there is a reasonable basis for believing it to be true.
The judges emphasised that a more flexible approach was warranted in cases involving constitutional rights, particularly those affecting detainees, who may face barriers in communicating directly with the courts.
