Swaziland parliamentarians are misleading themselves about the impounding of King Mswati III’s private jet by a court in Canada in a dispute over alleged unpaid bills.
They think it is an attack on Swaziland’s sovereignty, so the Swazi House of Assembly has decided to petition the Government of Canada to get the plane released.
Members of Parliament said the attached plane was a ‘state aircraft’ and enjoyed diplomatic immunity.
They also said the King’s dignity had been let down by the situation.
In fact, the plane was attached by the Ontario Superior Court of Justice in Canada in what is a relatively straight-forward, but disputed, business deal.
Attachment is a legal process by which a court of law, at the request of a person who is owed money, requires property owned by the person who owes the money to be transferred to the person who is owed the money, or sold for the benefit of the person who is owed the money.
The plane is legally owned not by the Kingdom of Swaziland but by a company called Inchatsavane Company (Pty) Ltd. The company is a legal entity in its own right. In the Sale and Purchase agreement for the McDonnell Douglas DC-9-87 aircraft dated 18 April 2012, Inchatsavane is given as the purchaser and King Mswati’s name appears on the document as ‘sole shareholder / owner’ of the company.
Inchatsavane might be seen as the ‘King’s company’ in Swaziland, but in international law it is a company like any other.
In the Sale and Purchase Agreement, Inchatsavane is described as a ‘limited company formed under the law of Swaziland under certification of incorporation No 581 of 2010.’
The company’s office address is given as ‘1st Floor, Ellerines Building, Swazi Plaza, [Mbabane], Swaziland.’
The plane was attached in Canada in December 2014 in a dispute over an unpaid bill. The background to the dispute is that after Inchatsavane bought the jet for US$9.5 million in 2012, the King required refurbishments to be made to the interior. The cost of repairs and modifications was at least US$4.1 million.
At the Ontario Superior Court of Justice in Canada, a company called SG Air said it paid the invoices for the refurbishments on behalf of Inchatsavane, expecting Inchatsavane to repay it the money.
SG Air said this money was not repaid.
The Ontario court was told that on 13 November 2014, King Mswati agreed to pay US$3.5 million as ‘full and final settlement’ of the costs owed by Inchatsavane.
The court was also told that by 16 December 2014 the funds had not been paid either by Inchatsavane or King Mswati and so the attachment of the aircraft was sought.
The claim in the court was against Inchatsavane and not King Mswati. The King was not present when the plane was taken by the courts; it was in Canada for routine maintenance.
State sovereign immunity does not apply in the case as the dispute is a commercial dispute between two companies. The Kingdom of Swaziland is not legally involved in the case.
The plane remains attached by the court, pending a further hearing.
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