TO ALL STAKEHOLDERS, INCLUDING THE NAMIBIAN AIRPORTS COMPANY “NAC” AND PARAGON; AND MEMBERS OF THE PUBLIC.
GROUND HANDLING SERVICES AT HOSEA KUTAKO INTERNATIONAL AIRPORT.
“Menzies is currently operating under a new agreement at Hosea Kutako International Airport “H.K.I.A” in Namibia, which it entered into with the Namibian Airports Company Limited “NAC” on 30 June 2022. As a long-standing aviation services provider at H.K.I.A
airport, where we have been operational since June 2014, we are not only entitled by law, but also obliged to continue to provide ground handling services in accordance with the highest international standards.
“Hosea Kutako International Airport is the gateway to Namibia, and at Menzies we strongly believe that it deserves to be served by a leading global aviation services provider that is a trusted partner of choice to the world’s airlines and airports. In Namibia, we are
continually investing in our operations and are committed to our Namibian employees, providing them with industry leading training and career opportunities. “We have a strong commitment to due process and have a track record of complying with the law across all the 60 countries where we are operational, and that is why we will continue to engage with the Namibia legal system for a resolution of this matter for the benefit of the Namibian people, our airline customers and their passengers.”
Some inaccurate statements appeared in the media regarding Menzies position as existing ground handling service provider at H.K.I.A. This press release sets out Menzies’ position.
1. Recently, some inaccurate statements appeared in the Media regarding Menzies’ position at HKIA. This press release sets out Menzies’ position accurately.
2. Menzies was appointed to render Ground Handling Services at Hosea Kutako International Airport” H.K.I.A”, in terms of a written contract entered into between Menzies and the Namibian Airports Company “NAC” for the period 1 January 2014 to 30 June 2022.
3. On 29 June 2022, the High Court of Namibian (Justice Sibeya) held that Menzies’ contract will indeed come to an end on 30 June 2022 – despite Menzies having contended otherwise –, and ordered Menzies to vacate the Hosea Kutako Airport at the end of the day
on 30 June 2022 “the eviction order”.
4. Immediately after Justice Sibeya handed down his judgment, Menzies noted an appeal to the Supreme Court of Namibia. The noting of the appeal had the effect that – in law – the eviction order was suspended and could not be executed by the NAC, unless the NAC brought an application to enforce the eviction order pending the outcome of the appeal to the Supreme Court. The NAC, however, never brought such an application.
5. On 30 June 2022, and despite the eviction order handed down by Justice Sibeya, the NAC published to the world at large that Menzies must continue to render the ground handling services at Hosea Kutako International Airport. Thus, after the judgement of Justice Sibeya was handed down, Menzies and the NAC (by its own free will) entered into the new agreement
6. Importantly, this new agreement, was entered into between NAC and Menzies after a tender was awarded to Paragon, and after NAC and Paragon purportedly entered into an agreement for Paragon to render the ground handling services at H.K.I.A. Menzies contend that, the tender so awarded to Paragon – as well as the purported contract entered into with Paragon – is wholly unenforceable in law and a nullity, and should be set aside. The Namibian High Court will determine this issue (i.e. whether the award to Paragon should be set aside) on 1 December 2023.
7. On 9 June 2023, the Supreme Court of Namibia dismissed Menzies’ appeal lodged against the eviction order granted by Justice Sibeya.
8. The Supreme Court did not provide a date on which Menzies must vacate the Hosea Kutako International Airport.
9. On the same day – 9 June 2023 – being the date on which the Supreme Court dismissed Menzies’ appeal, the Namibian Airports Company gave Notice to Menzies to vacate the Hosea Kutako Airport within a period of less than 4 days.
10. Menzies contended that such short notice was wholly unreasonable, irrational, and indeed impossible to comply with.
11. On Monday 12 June 2023, Menzies lodged an urgent application to the High Court (Justice Ueitele) to prevent the NAC from implementing such unreasonable Notice. On 15 June 2023, the High Court (Justice Ueitele) then prevented the NAC from implementing such notice until such time all the parties could be heard on whether the 4 day Notice given to Menzies should be set aside or not.
12. After the parties were heard, and on 8 August 2023, the High Court (Justice Ueitele) set aside the Namibian Airports Companies’ Notice that Menzies must vacate the Hosea Kutako International Airport on such short Notice.
13. In the same judgment, the High Court (Justice Ueitele) dismissed additional relief sought by Menzies to stay the eviction order of Mr Justice Sibeya, and also held that; “It furthermore follows that the Airports Company cannot rely on the Judgment and orders of Justice Sibeya as confirmed by the Supreme Court on 13 June 2023 to terminate and evict Menzies from HKIA, because Menzies is not rendering the ground handling services in terms of the agreement that Justice Sibeya found terminated on 30 June 2022, but is rendering ground handling services in terms of the notice of 30 June 2022 by the Airports Company to all stakeholders. It follows that, if the Airports Company cannot evict Menzies on the basis of the contract that terminated on 30 June 2022, I cannot order a stay of the order of 29 June 2022.”
14. The practical and legal effect of the High Court’s judgment (Justice Ueitele) is accordingly that the NAC’s has to give a new Notice to Menzies to terminate the new agreement in terms of which Menzies currently renders the ground handling services at HKIA,
and that the NAC cannot rely on the eviction order of Justice Sibeya anymore.
15. Crucially, Justice Ueitele could not and did not set aside the eviction order granted by Justice Sibeya or any order made by the Supreme Court. Justice Ueitele simply found that the eviction order which was granted by Justice Sibeya, was overtaken by events when the NAC and Menzies entered into a new and independent agreement after Justice Sibeya’s judgement was handed down on 29 June 2022.
16. Menzies thus currently occupies the HKIA in terms of the new lease agreement. NAC sends invoices to Menzies on a monthly basis in terms whereof Menzies is charged rent, and Menzies is up to date with such payments.
17. In terms of the Rent Ordinance applicable to the new lease agreement, NAC must give Menzies at least 12 months’ notice to vacate the Hosea Kutako international Airport. No such Notice has been given, and Menzies is not only entitled, but also obliged, to continue to provide ground handling services to the public in accordance with the highest international standards.
18. The obiter – in passing – finding of the High Court that a reasonable notice period is 30 days, and that Menzies will have to vacate the HKIA on receiving such notice, was made by the High court in circumstances where the High Court was not aware – and did not consider – the effect of the Rent Ordinance. Menzies however, as a law abiding citizen, sought and will continue to seek the required relief in court to vindicate its rights on this aspect.
19. This then serves as a notice to the public at large that Menzies will continue to render the ground handling services at Hosea Kutako International Airport. It will do so in the interest of all Namibians and those who enter Namibia, until such time as it must vacate the HKIA in terms of the law. Hence, the public may rest assured that Menzies will be their dedicated ground handling service provider, for at least the next 12 months.
20. Menzies assures all concerned that it will always comply with the law, and if any new court order is obtained by the NAC, or by any other interested party, that Menzies should vacate the HKIA at an earlier date, Menzies will abide by the law when such an order is enforceable. As things now stand however, no such court order exists.