Third appeal loss for Menzies Aviation
Written by on June 5, 2024
Airport services company Menzies Aviation (Namibia) has again lost a Supreme Court appeal attempt to cling to a ground handling service contract at Hosea Kutako International Airport.
Menzies suffered its third loss in a year when the Supreme Court on Monday dismissed an appeal the company lodged against a part of a judgement delivered in the Windhoek High Court in August last year.
In the appeal judgement, acting judge of appeal Theo Frank said after Menzies lost a Supreme Court appeal against an order for its eviction from the airport in June last year, it could not have been expected to vacate the airport within a period of time in which it would have been factually impossible to do so.
However, Menzies had to adhere to the eviction order of the High Court, and had to start to vacate the airport from the date when the eviction order was confirmed by the Supreme Court, which was on 9 June last year, Frank stated.
He also said when Menzies embarked on a flurry of litigation after the Supreme Court’s dismissal of its appeal against the eviction order and after the Namibia Airports Company (NAC) gave it a notice to vacate the airport on 13 June last year, it failed to suggest what a reasonable notice period would have been or how long it would have taken Menzies to hand over ground handling services and vacate the airport.
After the High Court’s judgement and the Supreme Court’s dismissal of Menzies’ appeal against that decision, Menzies had no agreement with the NAC that would have allowed it to continue to provide ground handling services at the airport, Frank stated.
Menzies’ third appeal to the Supreme Court was against High Court judge Shafimana Ueitele’s finding that 30 days would be a reasonable period for the NAC to give notice to Menzies to vacate the premises it was occupying at Hosea Kutako International Airport (HKIA) while it was contracted to carry out ground handling services at the airport.
Theo Frank
In the same judgement, Ueitele declared that a notice the NAC gave to Menzies on 9 June last year, when it told the company to stop providing ground handling services and vacate the premises it had been using by 13 June last year, was not reasonable and thus was invalid.
Menzies’ competitor Paragon Investment Holdings appealed against Ueitele’s finding that the four-day notice given to Menzies was not reasonable and was invalid.
The Supreme Court upheld that appeal.
Paragon, in a joint venture with Ethiopian Airlines, was chosen by the NAC to take over the provision of ground handling services at HKIA from Menzies from the end of June 2022.
Menzies also appealed against Ueitele’s refusal to set aside the Namibian Civil Aviation Authority’s certification of the Paragon joint venture’s staff and equipment as fit to carry out ground handling services at the airport.
The Supreme Court dismissed Menzies’ appeal against Ueitele’s decision in the judgement delivered on Monday, with Frank stating that the Paragon joint venture’s adherence to its contractual obligations with the NAC would not justify not carrying out the eviction order given by the High Court near the end of June 2022.
Frank also remarked that through Menzies’ appeal against the eviction order and the litigation strategy that it followed, it managed to extend the monopoly it had with the provision of ground handling services at the airport.
After Menzies continued to refuse to vacate the airport following the dismissal of its first appeal to the Supreme Court, the NAC had the eviction order executed on 19 August last year, with the Paragon joint venture then taking over Menzies’ ground handling duties at the airport.
Appeal judges Sylvester Mainga and Elton Hoff agreed with Frank’s judgement.
Menzies’ legal team was led by senior counsel Raymond Heathcote.
Sisa Namandje led the legal team that represented Paragon, and the team that represented the NAC was led by senior counsel Timothy Bruinders.
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