Prominent lawyer Sisa Namandje told the High Court that Menzies Aviation Namibia’s continuous and frequent legal action against the Namibia Airports Company is tantamount to harassment.
The protracted legal battle over the Namibia Airports Company’s decision to award a multi-million-dollar tender to the joint venture between Paragon and JV Ethiopia Airlines has not reached its end.
The High Court is deliberating on yet another application by Menzies Aviation Namibia where the company seeks to have 11 individuals who make up the Bid Evaluation Committee (BEC) from Namibia Airports Company (NAC) subjected to oral evidence.
Judge Eileen Rakow will deliver a ruling on 12 March.
In its application represented by Raymond Heathcote, Menzies says it wants the BEC to answer a series of questions.
Some of these questions include how BEC only picked up Menzies’ pages that were not initialled but not those of joint venture and why they were not disqualified; how did Paragon score 100 out of 100 – in circumstances of the glaring irregularities; and why was the joint venture not disqualified or penalised for making the portion requiring an indication whether or not subcontractors would be used.
The company is also asking why when NAC learned that there were forged signatures from the joint venture did it not take steps to end the contract, but instead vigorously opposes the review application and all facets thereto, whether the award exceeded the prescribed threshold.
On Tuesday, Namandje, who argued on behalf of the joint venture said based on the questions that Menzies wants to pose to the BEC, it wants nothing but an oral enquiry, which is impermissible.
“Menzies, it is clear, wants more. It wants an inquiry on both legal and factual issues. It wants a wholesome trial and more importantly, it has a misguided lust to harass and cross-examine certain witnesses bizarrely including legal practitioners,” said Namandje.
He further said Menzies has failed to make out a referral to oral evidence in respect of specified factual issues.
He asked the court to dismiss the application with cost.
On his part, NAC’s lawyer advocate Vincent Maleka said there is no genuine reason why Menzies wants to cross examine 11 individuals of the BEC.
He said the court must dismiss the application as it does not meet the threshold test for a referral to oral evidence.
He further said the questions posed by Menzies have already been answered by the said parties in court documents that have already been filed.
“It is inconceivable that officials of the NAC should be cross-examined: on whether the NAC should terminate the agreement on the bases alleged here. As stated, it is not germane to the main application, and is overall quite revealing of Menzies’ insincere position on the referral to oral evidence. This should be rejected by this court,” argued Maleka.
He went on to say that Menzies has once again chosen to institute another wholly meritless application.
Thus, he asked that Menzies bear the legal cost of the application.
“Menzies conduct in this litigation, all in all, has been unreasonable and extremely prejudicial to the NAC. It is not appropriate that the NAC should again be financially burdened by such litigation,” he said.
Menzies has been embroiled in a legal battle with NAC after it lost out on a ground-handling tender to a joint venture between Paragon Investment and JV Ethiopia in December 2021.
It now has a pending review application before the High Court, where it wants the court to declare that NAC is a category one public entity and in terms of the law, may not handle a bidding process of a tender that exceeds N$25 million.
According to Menzies, the tender handled by NAC and awarded to the joint venture exceeds the threshold, suggesting the Central Procurement Board of Namibia should have handled the bidding process.
The company also wants the court to review and set aside NAC’s decision to declare its bid invalid because it failed to initial all its pages and certify its registration documents.
Furthermore, set aside NAC’s decision to award the joint venture the tender and disqualify it.
-mamakali@nepc.com.na