Menzies Aviation loses second appeal

The airport services company Menzies Aviation (Namibia) has lost a second Supreme Court appeal in the court saga that resulted from its attempts to hang on to a contract for the provision of ground handling services at Hosea Kutako International Airport.

In a decision delivered on Tuesday, the Supreme Court dismissed an appeal of Menzies against a High Court judgement dating from May last year, when Menzies was trying to stop the Namibia Airports Company (NAC) from implementing the award of a contract for the provision of grounds handling services at the airport to a competitor, Paragon Investment Holdings.

The Supreme Court’s judgement marks the second time in less than a year that Menzies has lost an appeal in the country’s top court.

Its previous loss came in June last year, when the Supreme Court dismissed an appeal against a High Court judgement in which it was declared that Menzies’ contract to perform ground handling services at Hosea Kutako International Airport would terminate at the end of June 2022 and that the company should thereafter vacate the premises it had been using at the airport.

Menzies refused to vacate the premises until the company was evicted from the airport in August last year.

The company is still suing the NAC and Paragon Investment Holdings in a pending High Court case in which it is asking the court to review and set aside the NAC’s decision in December 2022 to award the contract for the provision of ground handling services at the airport to a joint venture between Paragon and Ethiopian Airlines.

The Supreme Court judgement delivered this week flowed from an application by Menzies for a temporary interdict to stop the implementation of the NAC’s decision to award the ground handling services contract to Paragon, until Menzies’ application to review and set aside that decision has been decided.

In the Supreme Court’s judgement, acting appeal judge Theo Frank remarked that Menzies’ multiple court applications in respect of its dispute with the NAC and Paragon reminded him of the statement that “there is such a thing as the tyranny of litigation”.

Frank recounted that Menzies’ bid to be awarded the ground handling services contract was disqualified because its company registration documents in its bid were not certified as true copies, and some of the pages of its bid documents were not initialled.

Frank said: “It was clear from the requirements that bids that did not comply with the formalities would not be considered, i.e. be disqualified. This is not unfair to any bidder as they were made aware of these requirements and they should have adhered to them.”

He added: “It is not for the bidder to decide what the requesting body or entity would need, and supply only such documents in the bid, irrespective of the bid requirements, and then cry foul if the bid is disqualified for not complying with the bid requirements.”

He also said Menzies is fully entitled to attack the award to Paragon on the basis that some of the documents in Paragon’s bid were not initialled, but it cannot claim that because Paragon’s bid was not disqualified other bidders who did not comply with bid requirements should not have had their bids disqualified.

“The NAC is obliged to enforce the compulsory requirements equally, and is not at liberty to ignore those requirements,” Frank stated.

He continued that, because Menzies admitted it did not comply with the bid requirements, and although it may have made out a case for the award to Paragon to be reviewed, “they have not made out a prima facie case for the award of the tender to them”.

As a result, Frank concluded, the application for an interim interdict was correctly refused in the High Court.

Appeal judges Sylvester Mainga and Elton Hoff agreed with Frank’s judgement.