Niël Terblanché
A bench of three Supreme Court Judges dismissed an appeal by Menzies Aviation Namibia to continue providing ground handling services for the Namibia Airports Company at the Hosea Kutako International Airport with costs.
This means that Menzies will have to cease its operations and vacate the premises of the NAC at Namibia’s main airport, paving the way for Paragon Aviation Services in a joint venture with Ethiopian Airlines to provide ground handling services at HKIA.
In a seminal judgment handed down on Friday, the Supreme Court held that the rule of law demands that Menzies’ unlawful hold over the relevant HKIA premises and forcing NAC to make use of its services should be put to an end.
The Supreme Court further emphasized that as the Paragon and Ethiopian Airlines joint venture was awarded the bid to provide ground handling services at HKIA that award remains legally valid.
The joint venture should be allowed to provide ground handling services at HKIA in accordance with the procurement bid awarded to them by NAC.
Bisey Uirab, the Chief Executive Officer of the NAC said in a statement that the unanimous appeal judgment delivered by Justice Theo Frank, with Justice Sylvester Mainga and Justice Elton Hoff concurring, averred that the rule of law demands that Menzies’ unlawful hold over the premises and forcing NAC to make use of its services should be put to an end.
The Supreme Court further stated that Menzies stayed on rendering ground handling services at HKIA without any right whatsoever and refused to vacate on the basis of a fabricated defence based on a tacit relocation of an expired agreement.
The judgment also asserted that Menzies had no right to remain on the premises of the HKIA and render the ground handling services after the expiry of the agreement to this effect on 30 June 2022, and it nevertheless simply refused to vacate the premises without obtaining any relief from a court of law entitling it to stay there.
The appeal judgment also asserted that Menzies relied on unlawful self-help to stay put and had the NAC premises unlawfully for about a year, despite the fact that Paragon presently has the right in accordance with a bid awarded to it by the NAC to be placed in possession of the premises so as to render ground handling services at HKIA pursuant to the bid awarded to it by NAC.
Finally, the Supreme Court found that Menzies resorted to self-help to remain in possession of the premises and hence, because of the necessity of the ground handling services, is in essence blackmailing the NAC, to use them in the meantime.
In 2014, Menzies and the NAC entered into a written agreement to provide ground handling services at HKIA.
The agreement was for an initial period of five years and commenced on 1 January 2014.
The agreement lapsed on 31 December 2021 and was subject to the right of renewal for three years.
New bids were invited prior to the termination date of the initial agreement and a six months extension was agreed to between the parties from January 2022 to 30 June 2022, subject to a month’s written notice of termination should the procurement process, in terms of the Public Procurement Act 15 of 2015 for ground handling services at HKIA that was pending at the time, be finalised prior to the termination date.
Both Menzies and Paragon took part in the procurement process as bidders.
Paragon’s bid was successful. Menzies’ bid was disqualified on the basis of non-compliance with certain tender conditions.
Menzies took the matter to the Review Panel in terms of Section 58 of the Public Procurement Act, but the review was dismissed in February 2022. Subsequently, the NAC, in terms of a letter dated- 31 March 2022 gave notice of termination of the agreement between it and Menzies effective 30 April 2022.
Menzies disputed the lawfulness of the notice and in a letter on 22 April 2022, the NAC withdrew its notice of termination and informed Menzies that they stood by the termination date of 30 June 2022 as provided for in the extension of the original agreement and asked for an undertaking by Menzies that it would vacate the NAC premises when the agreement between NAC and Menzies expires. Menzies refused to give an undertaking to this effect.
On 27 May 2022, NAC launched an urgent application seeking a declaratory order that the agreement would terminate on 30 June 2022 and that Menzies would be obliged to, on that day, cease to provide ground handling services to NAC and give the occupation of the premises to Paragon as the successful bidder.
The High Court handed down judgment in favour of the NAC on 29 June 2022 and ordered Menzies to vacate HKIA on 30 June 2022. Menzies appealed the High Court judgment and an appeal hearing in this regard took place in the Supreme Court on 19 April 2023 which resulted in the ruling of the Supreme Court on Friday.
According to Uirab, Menzies sought a meeting with the NAC in the immediate aftermath of the Supreme Court’s judgment.
“The meeting was granted and the parties discussed the implementation of modalities and logistics relating to the court ruling.
The NAC and Paragon, at the request of Menzies, indicated their preparedness and readiness, without derogating from the binding and immediate effect of the court order, to work on and finalise the handover arrangements and practicalities by close of airport operations today for Paragon to commence ground handling operations on Tuesday, ·13 June 2023,” Uirab said.
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