Menzies Aviation (Namibia) Proprietary Limited v Namibia Airports Company Limited (SA 73-2023) [2024] NASC (14 May 2024)
Facts
In August 2021, the Namibia Airports Company Limited (NAC) invited bids for the ground handling services at the Hosea Kutako International Airport (HKIA). Menzies Aviation (Namibia) (Pty) Ltd (Menzies), Paragon Investment Holdings (Pty) Ltd JV Ethiopian Airlines (Paragon) and other entities tendered for the ground handling services and on 13 December 2021, the bid was awarded to Paragon. Menzies appealed against this award to the Review Panel, which appeal was dismissed – igniting a sustained litigious process between the parties since 2022.
In the High Court, Menzies failed to foil an eviction application by the NAC, and its counter-application interdicting the NAC from handing over the premises for ground handling services to Paragon. In the eviction judgment in favour of the NAC the court a quo found that the ground handling agreement between the NAC and Menzies would come to an end on 30 June 2022; that Menzies was obliged to, at that date, cease its services and vacate HKIA, failing which the NAC would be entitled to call on the Deputy Sheriff to evict Menzies from the HKIA. The court struck from the roll Menzies’ interim interdict on the basis of the non-joinder of the Chairperson of the Review Panel.
Menzies appealed against the orders in favour of the NAC (the eviction judgment) and launched a new application for the interdictory relief pending the finalisation of the review application. The High Court dismissed Menzies’ application for a temporary interdict on 23 May 2023. Likewise, the Supreme Court also dismissed Menzies’ appeal against the eviction judgment on 9 June 2023.
Menzies appealed against the dismissal of the application for a temporal interdict pending the finalisation of the review application.
Issues for determination
Apart from determining an application for condonation by NAC for late filing of its notice to oppose and ‘Special Power of Attorney’ to oppose the appeal, the Supreme Court also had to determine the following issues:
Whether Menzies unduly delayed instituting its application for interdictory relief pending the finalisation of the review application on 21 October 2022;
Whether a new ground handling services agreement came into place between the NAC and Menzies and finally,
Whether Menzies had a prima facie right to remain the ground handler pending the review application.
Discussion
‘Undue delay
[23] It is important to note that the test for undue delay when it comes to temporary interdicts is not the same as the test for undue delay when it comes to the institution of review proceedings. Where one is dealing with undue delay in respect of interim interdicts such delay is measured against the promptitude with which the ultimate final relief is pursued and the focus is not solely on the timeline in respect of the interim relief.
[26] There is no timeline in respect of when interim interdicts are to be instituted. Firstly, they must not be used as a mechanism to delay a decision on the real issue between the parties as is evident from Juta & Co Ltd and Jantjies. Secondly, and in respect of review applications, they must be sought timeously in the sense that it would still be practical and feasible to, in essence, stay the implementation or further implementation of the decision which will form the subject matter of the main relief sought in the intended review as is evident from Fire Tech Systems, Chico/Octagon and New Era Investment (Pty) Ltd v Roads Authority & others.
[27] The next question is simply, was it filed at the time when it was still feasible and practical to prevent an irreversible performance of the decision sought to be reviewed in the ordinary course. The answer in my view is that it was. It is correct that the formal agreement between Paragon and NAC had been entered into but apart from the paperwork nothing else had occurred. Menzies was still on site at HKIA and performing the ground handling services and without evicting them Paragon would not be able to render the services despite being contracted in this regard. The nature of the services was also such that a new supplier would be able to move in to replace Menzies within a relatively short period if and when Menzies had to cease rendering the services. It was not a construction contract where major construction work had already taken place. It was not a case where Menzies would, pending the review application, be conducting construction work that would further complicate an eventual hand over or leave the party entitled to the award to simply complete an insignificant task to finalise the services started by Menzies. In my view, a seamless take over from Menzies could virtually be effected at any time. There was thus no practical impediment standing in the way of granting interlocutory relief provided a case for such relief had been made out. It follows that, in the context of interim interdicts, there was no undue delay in bringing the application and the court a quo’s finding in this regard cannot be sustained.
New agreement to render ground handling services
[28] The court a quo found that the averments of the NAC that no such agreement came into place but that the status quo as it was prior to the judgment of the High Court remained in place pending the appeal to this Court was the ‘most probable’ interpretation.
[30] In this application for an interim interdict the order sought is to interdict the NAC from implementing the award of the ground handling services to Paragon pending the review instituted in the High Court, to set the award aside and pending the appeal to this Court in the eviction judgment. In the alternative, a temporary interdict is sought pending a 12 month termination notice in terms of a new (rental) agreement allegedly brought about by the notice to stakeholders given by NAC on 30 June 2022.
[31] As in the eviction order case counsel for Menzies disavowed reliance on the new agreement for purposes of hearing of the appeal. Counsel for Menzies also did not stress the interim interdict pending the eviction judgment appeal. The obvious reason for the latter concession is that as the outcome of the eviction order appeal was unfavourable to Menzies it would serve no practical purpose to find that such order should have been granted. This confines the issues in this case to whether Menzies made out a case for the interim interdict pending the review proceedings in the High Court, in circumstances where it has no other right to occupy the HKIA.
Prima facie right to remain the ground handler pending the review
[32] What a bidder is entitled to is that the competing bids will be considered in a fair process. Where this does not happen the bidder can review the process. There is no necessity for this right to be protected by a temporary interdict as the right to a fair process is protected by the review procedure. In fact, the Namibian Constitution underpins the right to review in Art 18 which provides that ‘administrative bodies and administrative officials shall act fairly and reasonably’ and in compliance with the requirements imposed on them by legislation and the common law and that ‘persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress in a court of law’. I accept for the purpose of this judgment, as counsel on both sides accepted it, that the decision of the NAC to award the bid to Paragon was an administrative decision.
[34] It follows that for Menzies to show, prima facie, that irregularities occurred in the award of the bid to Paragon does not, in itself, entitle it to the relief sought. Menzies must go further, and prima facie establish, that it would have been awarded the bid had the process to determine which bidder should be awarded the contract, been conducted fairly and free of the alleged irregularities.
[35] Menzies’ bid was disqualified on the basis that its company registration documents were not certified as true copies nor were all the pages constituting its bid initialled.
[43] Because of Menzies’ admitted non-compliance with the aforementioned bid requirements, I am of the view that, whereas they may have made out a prima facie case for a review of the award to Paragon, they have not made out a prima facie case for the award of the tender to them…’
Findings
Held that, the object of a power of attorney is to prevent a person named as a party in litigation from repudiating such litigation because those who acted for him were not authorised to do so. Courts lean towards condoning the late filing of powers of attorneys rather than to punish a party who wishes to proceed with the litigation where prejudice to the other parties to the litigation is absent.
Held that, this Court is satisfied that the NAC board resolution of 30 June 2022 clothed Mr /Uirab with the authority to appoint the legal practitioners acting for the NAC. The court thus grants the condonation application.
Held that, the test for undue delay for interim interdicts is not the same as the test for undue delay in the institution of review proceedings. The delay in respect of interim interdicts is measured against the promptitude with which the ultimate final relief is pursued, and the focus is not solely on the timeline in respect of the interim relief.
Held that, the two cases referred to by the court a quo (i.e. Juta & Co Ltd v Legal & Financial Publishing Co (Pty) Ltd 1969 (4) SA 443 (C) and Jantjies v Jantjies & others 2001 NR 26 (HC)) were not of relevance in the present matter where the main application had already been instituted by the time the application for interim relief was instituted.
Held that, considering the context of this matter, a seamless take over from Menzies could be effected at any time. There was thus no practical impediment standing in the way of granting interlocutory relief provided a case for such relief had been made out. It follows that, in the context of interim interdicts, there was no undue delay in bringing the application and the court a quo’s finding in this regard cannot be sustained.
Held that, for Menzies to show, prima facie, that irregularities occurred in the award of the bid to Paragon does not, in itself, entitle it to the relief sought. Menzies must go further, and establish prima facie, that it would have been awarded the bid had the process to determine which bidder should be awarded the contract, been conducted fairly and free of the alleged irregularities. This Menzies was unable to do.
It thus follows that the application was correctly refused, and the appeal stands to be dismissed with costs.
Court order
The condonation application in respect of the late filing of the notice to oppose and late filing of the power of attorney on behalf of first respondent succeeded and the said non-compliance by first respondent was condoned. The first respondent was ordered to pay the costs of appellant in regard to the application for condonation, inclusive of the costs of one instructing legal practitioner and two instructed legal practitioners, and such costs shall include 15% of the costs of the appellant for attendance at the hearing and of the hearing of the appeal.
The appeal was dismissed with costs inclusive of the costs of one instructing legal practitioner and two instructed legal practitioners. When it comes to the attendance at the hearing and the hearing of the appeal the costs were limited to 85 per cent of such costs in respect of the first respondent.
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