Three judges of the Namibia Supreme Court on Friday dismissed an appeal brought by British-owned Menzies Aviation against a High Court decision that ordered it to vacate the Hosea Kutako International Airport.
The company took the Namibia Airports Company to court after it failed to secure the tender for the provision of ground handling services at HKIA. Windhoek High Court Judge Orben Sibeya found in favour of the NAC and ordered the company to vacate the premises.
NAC and Menzies concluded a ground handling services agreement in January 2014, for five years, from 1 January 2014 to 31 December 2018. The agreement was subsequently extended on 1 January 2019 to 31 December 2021 - subject to the right of renewal for three years. New bids were then invited and Menzies lost out to a joint venture between Paragon Investment Holdings (Pty) and Ethiopian Airlines. After a review was lodged by Menzies against the award, an extension was agreed on for a further six months pending the review application. The review application was eventually dismissed by the Review Panel in favour of NAC and Paragon Investments.
In June 2022, the NAC successfully filed an urgent application in the Windhoek High Court seeking an order that would oblige the British-owned company to halt operations and vacate the HKIA.
The premise of the NAC's application was that Menzies Aviation's contract to provide ground handling services at HKIA expired on 30 June 2022 and that Paragon Investments was supposed to take over these services on 1 July 2022. The High Court ruled in the NAC's favour.
In his judgement, Judge Sibeya found that the appointment of Paragon to take over the ground handling services by 1 July 2022 was lawful and considering that Paragon was notified and prepared to commence to render ground handling services, all stakeholders were informed of the new ground handler, Paragon, by 22 April 2022.
Not satisfied with the decision of Judge Sibeya, Menzies then approached the Supreme Court to set aside the decision. The Supreme Court, however, found that the rule of law demands that Menzies' unlawful hold over the premises and forcing NAC to make use of its services should be put to an end.
Acting Judge of Appeal Theo Frank, with judges of Appeal Sylvester Mainga and Elton Hoff concurring, found that the High Court was right in its findings that the contract was lawfully awarded to Paragon.
"As Paragon was awarded the bid, and that award had not yet been set aside, it should be allowed to act in accordance with the bid as it is willing to do. The lawfulness or otherwise of the awarding of the bid falls to be decided in the pending review application in the High Court. The Supreme Court found that Menzies were thus not entitled to remain on the premises after the original agreement between it and NAC lapsed on 30 June 2022.
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The appeal against Judge Sibeya's ruling was dismissed with costs, the costs to include costs for one instructing and two instructed counsel in favour of the first respondent, NAC, and the costs of two legal practitioners in the case of the second respondent, which is Paragon Investments.
Menzies was represented by Raymond Heathcote assisted by JP Jones, instructed by Viljoen and Associates. NAC was instructed by Jeremy Gauntlett, SC, KC assisted by Unanisa Hengari instructed by Shikongo Law Chambers and Paragon by Sisa Namandje assisted by Taimi Iileka-Amupanda.
On Friday, the NAC released a statement, signed by its CEO Bisey /Uirab, saying a meeting was held to agree on the modalities of the handover.
The parties agreed that Menzies will end its operations and hand over to Paragon by the end of business today. Paragon will take over operations on Tuesday morning.
