The Supreme Court has upheld the High Court’s decision to have Menzies Aviation vacate Hosea Kutako International Airport, where it was providing ground handling services.
Menzies lodged an appeal against the High Court’s decision that the notice to vacate, given by the Namibia Airports Company (NAC) to the company, was unreasonable, and suggested that a 30-day notice was reasonable.
The aviation company reasoned that it was not the court’s place to suggest a time frame, and such determination should have been left to the NAC.
Menzies also appealed against the High Court’s decision to set aside the certification of the personnel and the equipment of the joint venture between Paragon and Ethiopian airlines as being fit for purpose for the ground handling services at the HKIA.
Supreme Court acting judges of appeal, Theo Frank, Sylvester Mainga and Elton Hoff found that Menzies’ application lacked details as to why they could not hand over to the joint venture within the time stipulated by NAC.
“It was for Menzies to persuade the court based on facts that it was impossible to give effect to the eviction order by 13 June 2023 and how long it would take them, having regard to what is feasible and practical in the circumstances to give effect to the order,” said the judges.
The court noted that without such information, the High Court could not halt the eviction notice.
On the certification, the judges said despite agreeing with Menzies that the certification process was flawed, it was up to NAC to deal with any breaches of its contract with the joint venture.
“Menzies does not make out any case why they are detrimentally affected by such breaches, or that the legislative requirements are put in place for their benefit, among others,” said the judges.
They further said Menzies’ attack on the certification is irrelevant to their application.
Thus, the court dismissed the application with costs.
In its fight to keep on providing ground handling services at HKIA, Menzies 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, 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 instead.
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, it wants the court to 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 to be declared unconstitutional.
-mamakali@nepc.com.na