Judge cancels refusal of FlyNamibia licence

The Transportation Commission of Namibia must reconsider an application for the renewal of the licence allowing the airline, FlyNamibia, to operate, a judge ordered in the Windhoek High Court yesterday.

The order given by judge Esi Schimming-Chase gives FlyNamibia Aviation a second chance to have its application for the renewal of its scheduled air transportation service licence considered by the Transportation Commission, after the commission decided nearly two weeks ago to refuse the airline’s application for the renewal of the licence.

In the order that she issued yesterday, Schimming-Chase reviewed and set aside the commission’s refusal to renew the company’s licence, and referred FlyNamibia’s application back to the commission, to be considered afresh.

In an affidavit filed at the court, FlyNamibia chief executive Henri van Schalkwyk recounted that a scheduled air service licence was first issued to the company – then known as Westair Aviation – in March 1995. Since then, the licence has been renewed five times.

FlyNamibia’s current licence is valid until 28 March this year.

Van Schalkwyk said in terms of the Air Services Act, FlyNamibia had to apply for a renewal of its licence by no later than 28 March last year.

However, through an oversight on its part, the company missed that deadline, and only filed its renewal application on 3 November last year, Van Schalkwyk said.

The commission considered the application at a meeting on 20 February this year, and notified FlyNamibia about two and a half weeks later that the renewal of the licence was refused.

Van Schalkwyk said during the hearing on 20 February, the commission did not point out any material shortcomings in FlyNamibia’s renewal application or raise concerns that the company would not be able to provide a safe, reliable and satisfactory air service or that it did not have the financial resources to provide such a service.

Van Schalkwyk also noted that FlyNamibia holds a valid air operator certificate (AOC), issued by the Namibia Civil Aviation Authority. The air operator certificate would not have been issued if there was doubt about the company’s ability to provide a safe and reliable service to the public, he said.

If its scheduled air service licence expires on 28 March, it would have a catastrophic effect on FlyNamibia and the Westair aviation group, of which it is part, as the airline’s business would come to a halt, Van Schalkwyk stated in his affidavit.

FlyNamibia’s AOC would also lapse if its licence expires, and the airline would then have to go through a lengthy and complex process that could take from two to five years to obtain a new AOC, Van Schalkwyk said as well.

He added that the airline “can simply not survive the lapsing of its licence and AOC”, and that its 87 employees would have to be retrenched should its licence expire.

FlyNamibia operates about 270 scheduled flights per month, and contributes about N$175 million annually to the broader Namibian economy through payments to service providers, Van Schalkwyk said.

Senior counsel Raymond Heathcote, assisted by Geoffrey Dicks and instructed by Shaun Ellis, represented FlyNamibia during the hearing of its urgent application against the chairperson of the Transportation Commission on Friday last week.

The commission’s chairperson did not oppose the court application.