The Windhoek High Court will hear arguments in a case over a ground handling tender between Menzies Aviation and the Namibia Airports Company (NAC) in December.
In the said case, Menzies Aviation wants the court to review and set aside NAC’s decision to award a multi-million-dollar ground handling tender to a joint venture between Paragon Investment Holdings and Ethiopia Airlines.
Yesterday, Judge Eileen Rakow scheduled the hearing to take place on 1 December.
Menzies was recently given 30 days by High Court Judge Shafimana Ueitele to vacate the Hosea Kutako International Airport (HKIA). Ueitele also told Menzies to cease providing cargo and ground handling services to the NAC.
But the company has been fighting tooth and nail to remain NAC’s service provider for such services and has since petitioned the Supreme Court to appeal Ueitele’s 30-day notice, citing it was not the court’s place to do so.
The United Kingdom-based company 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.
In the review application, Menzies 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 N$25 million threshold, suggesting the Central Procurement Board of Namibia should have instead 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 tender and disqualify it.
Apart from this, Menzies wants section 4(2) of the Public Procurement Act, 15 of 2015 declared unconstitutional.
The specific section empowers the minister to, with or without condition, determine and grant a general or specific exemption by way of a directive for specific types of procurement or disposal from the application of certain provisions of the Act that are not practical or appropriate for the purpose for which such goods are let, hired or disposed of, including goods, works and services being procured.
The contract
In 2014, Menzies entered into a contract with NAC to provide cargo and handling services at HKIA. The contract has been extended twice and came to an end on 30 June 2022 by a flux of time.
Following the failure of Menzies to leave, NAC on 29 June 2022 got a court order, indicating that the contract between it and Menzies came to an end on 30 June 2022 – and that Menzies must seize rendering ground handling services on behalf of NAC at HKIA by the end of 30 June 2022.
On 30 June 2022, despite the court’s order, NAC issued a notice to all stakeholders that Menzies Aviation will continue providing ground handling services at HKIA until further notice.
Still aggrieved by court orders, Menzies lodged an appeal in the Supreme Court against the entire judgement and orders.
On 9 June, the Supreme Court dismissed Menzies’ appeal. On that same day, NAC gave Menzies a notice to stop rendering ground handling services and vacate HKIA no later than 13 June.
Not satisfied, Menzies lodged an urgent application in the high court on 12 June, which was heard that same day.
In this application, Menzies wanted a delay in the execution of the court orders given on 29 June 2022 to be delayed, pending the determination of its complaint that the eviction notice by NAC was unreasonable and irrational. A slap in the face, the court ruled that Menzies should seize providing ground handling services at HKIA. The court further said a 30-day period was sufficient for the company to pack and go.
This, however, resulted in an appeal to the Supreme Court.
The case is yet to be determined.
- mamakali@nepc.com.na