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Defiant Menzies back in court

2023-09-13  Maria Amakali

Defiant Menzies back in court

There appears no end in sight for a long-drawn-out battle over the ground handling tender at Hosea Kutako International Airport (HKIA). 

This is after Menzies Aviation once again approached the local courts on Monday, seeking to return to the airport after an unceremonious eviction in August.

In this application, Menzies wants to be allowed to return to HKIA until such a time the Namibia Airports Company (NAC) gives them a reasonable notice to vacate.  

The company wants the court to grant this order despite there being a cross-appeal lodged by Paragon, the local company that won the multi-million-dollar ground handling tender in December 2021 in a joint venture with JV Ethiopian Airlines.

Menzies further seeks to interdict the Namibia Civil Aviation Authority (NCAA) from implementing its decision to revoke its Dangerous Goods Approval to operate on HKIA and Ground Handling Security Programme Approval.

NCAA took the decisions on 4 September.

On Monday, Menzies lawyer Raymond Heathcote said as a result of the eviction, the company is locked out from the airport and it cannot access its equipment and clients’ goods.

“All Menzies’ goods are still inside. Just how and when those goods will again be under Menzies’ control is anybody’s guess. The respondents are so powerfully connected that they can actually keep Menzies’ goods. It is almost a sort of expropriation that exists. Only if this application is successful will Menzies be treated as a person with rights,” said Heathcote.

He argued that Menzies needs to access the airport so that it can distribute the cargo critically needed by the public and doing so will not prejudice Paragon.

“Members of the public want their goods distributed. But only Menzies can do so. Paragon does not have a contract with the consignors or consignees of those goods. Paragon has no insurance in place for those goods either,” said Heathcote.

However, according to the NAC’s lawyer Timothy Bruinders, Menzies can be allowed to access HKIA for a limited time and for the limited purpose of delivery of that cargo to consignees, but not to return to render ground handling
services.

“The notice to vacate was set aside because it was found to be unreasonable. But that does not mean Menzies is entitled to resist vacating HKIA, nor does it mean the deputy sheriff may not evict,” said Bruinders.

He said no court has given an order authorising the return of or restoration of possession of HKIA to Menzies.

Bruinders argued that Menzies is seeking to enforce a judgment it has appealed – the judgment where the High Court suggested that a 30-day notice was sufficient for Menzies to vacate HKIA.

He further said Menzies has no prospect of winning, as the relief it seeks would be inconsistent with other judgments of the High and Supreme Court.

Judge Shafimana Ueitele will deliver judgment in the matter on 3 October. 

 

Undetermined matters

The Supreme Court is yet to determine the appeal filed by Menzies on 1 September against the High Court’s judgment, where Menzies’ application to retain control of some areas of HKIA was dismissed. 

This is the company’s third bid to the Supreme Court since it lost the multi-million-dollar ground handling tender in December 2021 to Paragon and JV Ethiopian Airlines.

Menzies also has a suit before the Supreme Court, where it is appealing the High Court’s suggestion of a 30-day notice to vacate HKIA, citing it was not the court’s place to do so. 

It further argues that the determination of a notice period falls under the jurisdiction of the NAC and should not have been made by the court.

The company also has a 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, it 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, and set aside NAC’s decision to award the joint venture the tender and disqualify it.

Apart from the decisions to be reviewed, Menzies wants section 4(2) of the Public Procurement Act, 15 of 2015 declared unconstitutional.

- mamakali@nepc.com.na


2023-09-13  Maria Amakali

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