Menzies Aviation (Namibia) (Pty) Ltd v Namibia Airports Company Limited (HC-MD-CIV-MOT-GEN-2023/00256) [2023] NAHCMD 328(16 June 2023)

The Namibia Airports Company Limited (the Airports Company) on 29 June 2022 obtained a judgment in its favour from Justice Sibeya in the High Court against Menzies Aviation Namibia (Pty) Ltd (Menzies) declaring that the agreement in terms of which Menzies was rendering ground handling services at the Hosea Kutako International Airport (HKIA) on behalf of the Airports Company, terminated on 30 June 2022. In addition to that declaration, the court further declared that Menzies had to seize rendering ground handling services on behalf of the Airports Company and vacate the HKIA by the end of 30 June 2022. 

On 30 June 2022, despite Justice Sibeya’s judgment, the Airports Company issued a notice to all stakeholders that Menzies Aviation will continue to provide ground handling services at HKIA until further notice. Menzies was, however, still aggrieved by the judgment of Justice Sibeya and lodged an appeal to the Supreme Court against the entire judgement and orders.

On 9 June 2023, the Supreme Court delivered its judgment in the matter and dismissed Menzies appeal. The Airports Company immediately gave Menzies notice to cease rendering the ground handling services and vacate the HKIA by 13 June 2023. Menzies filed an urgent application on Monday, 12 June 2023 at 12h18 and it was set down for hearing at 17h30. 

The relief sought by Menzies was in essence an order staying or put otherwise delaying the execution of Justice Sibeya’s order of 29 June 2022, pending the determination of Menzies complaint that the Airports Company acted unreasonably and irrationally when it gave it three
days’ and 10 hours’ notice to vacate the HKIA.

Paragon Investment Holdings (Pty) Ltd JV Ethiopian Airlines (Paragon) did not have an opportunity to file answering papers. Therefore, in terms of Rule 66(1)(c), Paragon raised the following legal issues:

Firstly,that the High Court had no jurisdiction to make an order which had the effect of trimming down or reviewing another Judge’s order.  Secondly,Menzies’ application was a complete abuse of the court’s process. Thirdly, the Supreme Court order considered together with the order of Justice Sibeya was binding and final in terms of section 17 of the Supreme Court Act. Fourthly,the application could simply not be heard as it would result in a violation of the Second Respondent’s rights to a fair trial under Article 12 of the Namibian Constitution. Fifthly,there was no public law decision made by the Airports Company after the Supreme Court order which could be open for a review as the order of Justice Sibeya was operative and of immediate effect. Hence, the issue of more time before eviction was res judicata between the parties. Lastly, that the matter was not urgent given the background.

At the hearing on 12 June 2023, the points in limine raised by Paragon were first decided by UEITELE J who made the following preliminary remarks:

‘ [15] ...It is now a well-established principle of our law, which principle is necessary to emphasise that constitutional rights and court orders must be respected. In a constitutional democracy like ours no one must be left with the impression that court orders (even if they are flawed) are not binding, or that they can be flouted with impunity. I therefore associate myself with the remarks by the Constitutional Court of South Africa when it said: ‘If the impression were to be created that court orders are not binding, or can be flouted with impunity, the future of the judiciary, and the rule of law, would indeed be bleak.’ 

[16] It thus follows that a court’s decision whether it be a court order, or a judgment is operational and executable once it is granted or handed down by the court. Although this holds true, there are instances where a party may approach a court for the court to suspend or stay the execution of its order or judgment...’ And in respect of suspension or stay of execution of court orders or judgment, that:

‘[23]But in the present matter I do not understand that Menzies is seeking an order from this court which will have the effect to trim down or review Justice Sibeya’s order. My understanding of the relief sought by Menzies, is that Menzies is seeking an order staying or put otherwise, delaying the execution of Justice Sibeya’s order of 29 June 2022 pending the determination of Menzies complaint that the Airports Company acted unreasonably and irrationally when it gave it three days’ and 10 hours’ notice to vacate HKIA.

[24]Article 78(4) of the Namibian Constitution provides that:

‘The Supreme Court and the High Court shall have the inherent jurisdiction which vested in the Supreme Court of South-West Africa immediately prior to the date of Independence, including the power to regulate their own procedures and to make court rules for that purpose.’

[25] The inherent power granted to this court by Article 78(4) has been interpreted to include the inherent discretion to order a suspension of the execution of any of its order or judgment…

[26] In view of my understanding of the relief sought by Menzies in this application I come to the conclusion that this court does have the jurisdiction to consider the relief sought by Menzies in this application namely, the discretion to consider whether or not it will order a stay of execution of a judgment or court order. 

Having considered the matter, it was held that: 

The matter was urgent and to be heard on an urgent basis as envisaged in Rule 73 of the Rules of Court.

Held further that, the court had jurisdiction to hear Menzies’ application because Menzies was not seeking an order from the court which would have the effect to trim down or review Justice Sibeya’s order.

Held further that, Menzies’ application did not amount to an abuse of the processes because in this matter Menzies contended that the three days’ notice that it was given by the Airports Company was irrational and unreasonable. Menzies has thus come to court for a declaration to that effect.

Held further that, the issue of res judicata did not arise because the question of whether the three days’ notice that the Airport’s Company gave Menzies to vacate the HKIA is reasonable or not was never determined by either Justice Sibeya or the Supreme Court.

Held further that, on the authority of Standard Bank v Atlantic Meat Market, if the court heard the matter and issued a rule nisi, the Airports Company and Paragon’s right to a fair trial as guaranteed under Article 12 of the Constitution would not be violated.

Accordingly, the second respondents’ points in limine were dismissed and the matter was postponed to 4 July 2023 for a hearing on the merits. In the meantime, the orders issued by Justice Sibeya on 29 June 2022 under case number HC-MD-CIV-MOT-GEN-2022/00233, were suspended pending the determination of the dispute under this application. On 4 July 2023, the matter was further postponed to 4 August 2023 for delivery of judgment. 

Menzies Aviation (Namibia) (Pty) Ltd  v Namibia Airports Company Ltd(HC-MD-CIV-MOT-REV-2022/00155) [2023] NAHCMD 378 (05 July 2023)

In 2022, the applicant launched this review application which is still pending before the High Court. During the course of the review application, Menzies brought an application to interdict the Airports Company pendente lite (pending litigation i.e., the review application and appeal against Sibeya J’s judgment in the Supreme Court) from, inter alia, implementing the award or any contract entered into between the Airports Company and Paragon (the second respondent) as a result of the tender/procurement in question. In essences, Menzies sought undisturbed further permission to render the ground-handling services at the Hosea Kutako International Airport pending the finalization of the review process which included possible appeal to the Supreme Court of the outcome of the said review process. 

The application pendente lite was heard on 24 April 2023 by RAKOW J who delivered judgment on 23 May 2023 in which it was held that:

Held further that: a year is simply too long a period from bringing the review application to instituting the pendente lite application. There was further no explanation put before the court explaining the delay in bringing the said application and the court must conclude that as such, the application lacks bona fides. To add to this, the court also took into account that the applicant knew since at least November 2021 that they were not successful but chose to only institute review proceedings in June 2022.

Therefore, the pendente lite application was dismissed with costs. Menzies brought an application for leave to appeal the Court’s refusal to grant the pendente lite interdictory relief, which was opposed by both the Airports Company and Paragon. On 5 July 2023, RAKOW J granted leave to appeal the said refusal, and in her ruling, stated that:

‘Legal Considerations and Conclusions

[15] The court first needs to decide whether the current order is indeed an appealable order as contemplated in s 18(3) of the High Court Act, 16 of 1990.  This section reads as follows:

‘(3) No judgment or order where the judgment or order sought to be appealed from is an interlocutory order or an order as to costs only left by law to the discretion of the court shall be subject to appeal save with the leave of the court which has given the judgment or has made the order, or in the event of such leave to appeal being refused, leave to appeal being granted by the Supreme Court.’

[16] In deciding whether an order or judgement is appealable, in the Di Savino v Nedbank Namibia Ltd matter, Shivute CJ referred to the three attributes that must be present to identify an appealable judgement or order as follows:

‘The three attributes counsel for the appellant referred to are those set out in the decision of the South African Appellate Division in Zweni v Minister of Law and Order 1993 (1) SA 523 (AD) and as endorsed in many judgments of this court, namely that (i) the decision must be final in effect and not susceptible to alteration by the Court of first instance; (ii) it must be definitive of the rights of the parties, ie. it must grant definite and distinct relief, and (iii) it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.’

[17] Applying the above to the current matter before the court, the court finds that the dismissing of the pendente lite application in this instance indeed meets the three attributes as set out in the Zweni matter and is therefore an appealable order.

[18] The test to be applied on whether leave to appeal should be granted, the following was stated by this court in African Selection Trust SA v Namsov Fishing Enterprises (Pty) Ltd:  

‘In terms of the applicable test, the court will now have to determine whether or not there is a reasonable possibility that the Supreme Court may come to a different conclusion.’ 

[19] After hearing and considering the arguments, this court is of the opinion that the Supreme Court may come to a different conclusion as to what this court came to, and for that reason, the application for leave to appeal must be successful.’

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