The Eswatini Medical Christian University (EMCU) Council has challenged Prime Minister Russell Mmiso Dlamini to produce proof that Cabinet authorised the inquiry into the institution.
In a replying affidavit filed by EMCU Council Chairperson Dr Bongani Dlamini, the university council argues that while the premier has maintained that the probe was approved by Cabinet, he has not placed before the High Court a Cabinet resolution confirming that approval, as no confirmatory affidavit has been filed by Principal Secretary Bheki Bhembe to support the claim.
“The respondents have failed to place before this honourable court any Cabinet resolution authorising or approving the establishment of the Committee,” states Dr Dlamini in the affidavit.
He argues that in the absence of proof that Cabinet approved the committee, the inquiry was not established in accordance with the law and should, therefore, be declared invalid.
The replying affidavit forms part of EMCU Council’s urgent court challenge against the PM, the chairperson and members of the inquiry, the Anti-Corruption Commission, the principal secretary in the Ministry of Education and Training and the Attorney General.
The dispute arises from Legal Notice No. 98 of 2026, which the PM has relied upon as the formal legal instrument establishing the investigation into EMCU.
In his answering affidavit, the PM defended the inquiry, arguing that it was lawfully constituted, approved by Cabinet and prompted by longstanding allegations of maladministration, financial irregularities and governance failures at the university.
He further stated that the legal notice, published in the Government Gazette on June 15, formally appointed the inquiry and clearly set out its terms of reference.
According to the premier, the inquiry was established in the public interest after his office received numerous complaints from stakeholders concerning the operations of EMCU.
The EMCU Council, however, argues that the PM’s case remains unsupported by the most critical document: proof that Cabinet approved the establishment of the inquiry.
The council’s central argument is that the Gazette did not establish what the PM publicly announced.
Dr Dlamini states that the PM publicly announced that he was establishing a commission of inquiry in terms of the Commissions of Enquiry Act, 1963, and argues that when Legal Notice No. 98 of 2026 was produced during the hearing, it became apparent that the PM had not established a commission, but a committee to enquire into the operations of EMCU.
The council contends that the distinction is legally significant because the Act differentiates between a commission of inquiry and a committee of inquiry.
According to EMCU, a committee established under Section 3(3) of the Act is a special-purpose body created to undertake a specific investigation into a defined matter and may only be established with Cabinet approval. Dr Dlamini argues that compliance with this requirement is a condition precedent to the lawful establishment of such a committee.
“It is also unclear as to whether the purported decision by Cabinet was for the establishment of a commission of inquiry or a committee of inquiry,” he states.
The council further argues that, even if a committee was lawfully created, Legal Notice No. 98 of 2026 does not expressly give it the powers of a commission of inquiry.
Dr Dlamini submits that the Act allows provisions relating to commissions to apply to committees with necessary modifications and adaptations, but argues that this does not automatically confer all commission powers on every committee.
He contends that where a committee is intended to exercise powers ordinarily vested in a commission, the instrument establishing it must expressly incorporate or adapt those powers.
In this case, the council argues, the legal notice merely establishes a committee and does not specify that it may exercise the powers of a commission.
“Accordingly, the committee cannot lawfully purport to exercise the powers of a commission of enquiry,” Dr Dlamini states.
He adds that the alleged ambiguity over whether the PM appointed a committee or a commission forms part of the basis for EMCU’s request that the court confirm the interim interdict pending review.
The PM, however, has taken a different position. In his answering affidavit, he argues that challenges to the legality of the inquiry could be brought while its work was underway or after it had completed its investigations.
The PM also maintained that Cabinet resolved to establish the inquiry after receiving complaints concerning EMCU’s operations.
Among the documents attached to his affidavit was a memorandum from the Principal Secretary in the Prime Minister’s Office dated June 8, requesting publication of the inquiry in the Government Gazette.
The memorandum stated that the Prime Minister’s Office had received concerns and complaints from agencies and stakeholders regarding EMCU’s operations, necessitating an investigation into suspected fraud, malpractice and maladministration.
It further stated that Cabinet had approved the commissioning of the inquiry to establish facts, identify wrongdoing, quantify losses, determine accountability and recommend corrective or disciplinary measures.
The EMCU Council, however, does not accept that this sufficiently proves Cabinet approval.
The council further argues that part of the material relied upon by the PM was not disclosed in full. Dr Dlamini claimed that one annexure relied upon by the PM formed part of a broader document submitted by Vice Chancellor Professor Paul Yang to the Office of the PM, but the full document was not disclosed in the answering papers.
The council also states that another annexure relied upon by the premier was a letter written by the EMCU Council on June 20, in response to the PM’s public announcement on June 18.
EMCU argues that this letter could not have formed the basis for the establishment of the inquiry because it was written after the PM had already announced the investigation.
“The chronology of events therefore demonstrates that the letter could not have preceded, or otherwise justified the decision that had already been publicly announced,” Dlamini states.
The PM’s case is that the inquiry was necessary because of serious allegations involving the university’s financial management and governance.
In his answering affidavit, he relied in part on correspondence from Professor Yang, who alleged widespread financial irregularities at EMCU.
Yang accused the bursar and registrar of spending university funds on hotels, resorts and restaurants without management approval.
He further alleged that a stay at Pigg’s Peak Hotel between February 27 and March 1 this year cost the university more than E105 000, with a significant portion allegedly spent on alcohol.
Yang also alleged that EMCU had spent about E3.89 million on hotel accommodation, meals, transport and air travel between May 2025 and February 2026.
The PM stated that these and other complaints contributed to Cabinet’s decision to establish the inquiry.
The EMCU Council, however, disputes Yang’s allegations in correspondence also attached to the PM’s papers, arguing that the current administration inherited a university in severe financial distress and had since introduced tighter financial controls.
The council claimed that before 2020, the institution had a E47 million deficit, but under the current administration, it had accumulated more than E50 million in reserves.
It also alleged that previous executives misused more than E36 million in government funds, which the institution is seeking to recover through legal action.
The council further defended expenditure questioned by Yang, stating that many travel costs, allowances and legal fees related to official government oversight functions and approved university business.
The High Court is now being asked to determine whether the interim relief previously granted to EMCU should be confirmed, while the broader challenge to the legality of the inquiry proceeds.
