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Dar pleads for urgent trial

TANZANIA has asked South Africa’s High Court—Gauteng Local Division—to treat with extreme urgency the application for release of Air Tanzania Company Limited’s (ATCL)aircraft in South Africa.

Advocate Victor Nkhwashu, an appointed attorney for the government in the matter has provided reasons in an affidavit to justify the urgent hearing and determination of the application by the South African court.

Advocate Nkhwashu stated in the affidavit that the seized aircraft is used by the President of the United Republic of Tanzania.

Presently, the advocate stated, the head of state was unable to meet his international obligations due to the plane grounding at OR Tambo International Airport.

The fact that the aircraft is used for presidential official trips, the lawyer argued, it contains sensitive security equipment, which the president uses during his travels using the aircraft and leaving it in a foreign country for an indescribable period may leak or compromise the classified information.

The advocate described the continued grounding of the plane as a national security threat to Tanzanians and the executive arm of the Tanzanian government.

It’s further stated in the affidavit that as long as the aircraft remains grounded, it subjects ATCL and Tanzanian citizens to irreparable financial loss due to cancellation of scheduled flights and postponement of presidential trips.

“This will cause irreparable damages to the relationships that Tanzania has with other nations,” Advocate Nkhwashu of Attorney’s Inc stated in the affidavit.

Judge Wepener of the South African court reserved his judgment after hearing the parties last Friday. This means that the court will give its decision on the matter any time and the parties will dully be informed when it is ready for delivery.

During the hearing session, Deputy Solicitor General Dr Ally Possi led a team of state lawyers from Tanzania to present grounds before the South Africa Court in proceedings against the aircraft attachment.

He was accompanied by Deputy Minister for Foreign Affairs, Dr Damas Ndumbaro (pictured), who is also a lawyer by profession and an Advocate of the High Court, Principal State Attorney Vicent Tango who is also Director of Litigation with the Solicitor General’s Office.

Other members of the team include Principal State Attorney Gabriel Malata, who is also the Commissioner of Labour and State Attorney from ATCL Job Mrema.

They teamed up with their South African counterparts, including Advocate Ngcukaitobi, to challenge the seizure order.

The South African Court conducted the hearing session, with state lawyers arguing that the seizure of Airbus 220-300 was unlawful, requesting the court to lift the attachment order.

They forcefully submitted that the order to impound the aircraft was wrongly granted against the government. “We have shown that the order to impound ATCL’s airbus A220-300 was wrongly granted against the government of Tanzania and it should be lifted,” Advocate Ngcukaitobi told the court.

According to the submissions, the lawyers found it un-acceptable that they heavily rely on a legal opinion presented by businessman Hermanus Steyn instead of adhering to an order made by the High Court of Tanzania, which is a court of law. It was argued that what the businessman was required to do instead was to appeal against the Tanzanian court. The state lawyers submitted that the Tanzanian court’s ruling was never set aside.

Counsel for the businessman Roger Wakefied insisted that a Prima facie case exists and that a trial court should determine the merits of the case and prospects of success.

He claimed that the test for a prima facie was satisfied. The South African court issued the highly contested ruling on August 21, 2019 after considering ex-parte a notice of motion (attachment and edictal citation) lodged by the businessman against eight respondents, including the government of Tanzania.

Other respondents into the matter are ATCL, the Airport Company of South Africa Limited, Director of South African Civil Aviation Authority, Air Traffic Navigation Services COS Limited and three individuals, Mr Sibusiso Nkabinde, Mr Kgomotso Molefi and Mr Patrick Sithole.

In the application filed on August 21, 2019 under certificate of urgency and supported by affidavits of one Martin Steyn and Bianka Pritorius, the businessman under services of Werksman’s Attorneys requested for attachment of any ATCL’s aircraft as part or enforcement of an arbitral award.

The award for 36 ,375,672.81 US dollars was granted in favour of the businessman on July 9, 2010 by Judge Josephat Mackanja (retired) of the High Court of Tanzania.

  • Application against ATCL plane seizure

In the order, the South African court restrained the three individuals and Air Traffic Navigation Services from granting any permission or clearance necessary to authorise the departure of the aircraft sought to be attached until such time as the aircraft is released from attachment by court order.

There are facts that suggest that after the issuance of the arbitral award, there were negotiations that were engaged by the two parties, which led to a settlement deed for about 30 million US dollars and subsequently the government of Tanzania paid a bigger amount in order to settle the claim.

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