Govt wins court battle over TLC inquiry

Government’s inquiry into allegations of malpractice at The Luke Commission (TLC) can now proceed after the High Court dismissed the organisation’s legal challenge to its establishment.

The inquiry, which had been temporarily halted by a court order, was established to investigate allegations concerning the organisation, including that it presented unqualified personnel to patients as doctors and prescribed medication intended for animals.

Government has now successfully challenged TLC’s authority to bring the case, removing a legal obstacle that had prevented the inquiry from proceeding.

In a judgment delivered this week, High Court Judge Zonke Magagula found that TLC had failed to prove that its board of directors properly authorised the legal action against government, resulting in the dismissal of its application.

The court, as a result, dismissed TLC’s application, in which it sought to have government’s decision to establish the Commission of Inquiry declared unlawful and overturned.

The dispute arose after government established a Commission of Inquiry under Government Gazette Legal Notice No. 144 of 2026 to investigate allegations of malpractice concerning TLC.

The organisation subsequently approached the High Court on an urgent basis, seeking to have the decision reviewed and overturned. It wanted the court to declare the establishment of the inquiry unlawful and set aside the government notice authorising it.

The application was brought against the minister for health, the principal secretary, members of the Commission of Inquiry, the attorney general and other respondents.

Dr Harry VanderWal, who identified himself as a medical practitioner, founder and service representative of TLC, submitted the affidavit supporting the application.

The court initially granted an interim injunction against the commencement of the inquiry while the application was pending.

This temporarily prevented the inquiry from proceeding as the legal challenge remained before the court.

The dispute took a different direction when government, through the attorney general’s chambers, questioned whether TLC had properly authorised VanderWal to bring the case.

Government initially raised three objections. It questioned whether TLC had the legal standing to sue, whether VanderWal had authority to submit the founding affidavit and whether he had been authorised to institute the proceedings.

The first two objections were later abandoned, leaving the question of authorisation as the central issue.

This meant that before the court could consider TLC’s arguments against the inquiry, it first had to establish whether the organisation had properly approved the decision to challenge government.

In his judgment, Judge Magagula explained that TLC was an incorporated organisation with its own legal identity.

It could enter into agreements, own property and sue or be sued in its own name. The judge however, said this did not mean that its founder or any individual director could automatically decide to initiate legal proceedings on behalf of the organisation.

Such decisions had to be authorised by its board of directors in accordance with the organisation’s governing rules.

The issue was for that reason, not whether TLC had the right to challenge government, but whether the people who brought the application had obtained the necessary approval to do so.

Court rejects TLC’s supporting documents

Following government’s objections, TLC submitted documents intended to establish its legal status and VanderWal’s authority.

These included its certificate of incorporation, Articles of Association, company records and a document presented as a resolution of its board of directors.

The resolution authorised VanderWal to institute and pursue the legal proceedings concerning the Commission of Inquiry, including signing the necessary court documents.

It bore the signatures of Frans Pienaar and Misi Schmelzenbach, identified as the organisation’s board chairman and secretary, respectively.

The document however, raised questions about whether the board had properly approved the decision.

The court examined TLC’s Articles of Association, which set out how its directors must make decisions. Under those rules, a board meeting required at least one-quarter of the directors or two directors, whichever number was greater, to be present before it could make valid decisions.

Company records submitted to the court listed six current directors and another person who had ceased to be a director. This meant at least two directors were required for a properly constituted board meeting.

Although the resolution carried two signatures, it did not identify which directors had attended the meeting or establish whether the required number had been present when the decision was taken.

For the judge, the signatures alone did not sufficiently demonstrate that the board had followed the required procedures.

TLC argued that a resolution signed by the chairman and secretary should be accepted as evidence of the board’s decision. VanderWal maintained that this was common practice and that the organisation should not have to explain its internal decision-making processes to prove that the lawsuit had been authorised.

Judge Magagula rejected that argument, explaining that once government had specifically challenged the authority to bring the case, TLC had to provide evidence showing that its board had properly approved the proceedings.

The judge also considered another provision of the organisation’s Articles of Association dealing with its power to institute and defend legal proceedings.

He interpreted that provision as requiring all directors to sign the relevant authorisation for it to be valid.

The document submitted to the court did not meet that requirement. Crucially, the court did not establish that the directors had never discussed or approved the lawsuit. Rather, it found that TLC had failed to produce sufficient evidence that the decision had been properly authorised under its own rules.

The judge was also not persuaded by VanderWal’s position as founder and his familiarity with the organisation’s operations.

In his founding affidavit, VanderWal had explained that he was responsible for and familiar with TLC’s clinical operations, medical personnel, patients and institutional governance.

Judge Magagula however, distinguished between having knowledge of an organisation’s activities and having authority to take legal action in its name.

A person familiar with an organisation could provide evidence about matters within their knowledge without special authorisation, the judge explained.

That did not automatically mean the same person had permission to institute a lawsuit on the organisation’s behalf. The judge further observed that VanderWal had not expressly stated in his founding affidavit that he had been authorised to initiate the proceedings.

The court also considered whether TLC had been given an adequate opportunity to address government’s objections.

The organisation had submitted additional documents after the question of authority was raised, but the judge found that these still did not establish that the proceedings had been properly authorised.

He rejected the suggestion that the requirement was merely a technical formality that should not prevent the application from proceeding.

The judge considered it particularly significant that TLC had opportunities to correct the shortcomings but failed to produce the necessary proof.

“In the circumstances, I do not find that the applicants have discharged the onus of proving that Dr Harry VanderWal was duly authorised to institute and prosecute the application for review,” Judge Magagula ruled.

He consequently upheld government’s preliminary objection with costs, bringing TLC’s application to an end. As a result, the State successfully defended the application without having to establish the legality of the inquiry itself. The ruling now leaves the government notice establishing the Commission of Inquiry undisturbed by this case, while TLC faces an order to pay the legal costs awarded against it.