- November 8, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR), Contracts
This was an urgent application brought before the High Court by Menzies after the Supreme Court handed down its judgment on 9 June 2023, in which it dismissed Menzies’ appeal against the orders and judgment of Justice Sibeya dated 29 June 2022 and the reasons that were handed down on 11 August 2022. On 15 June 2023, the High Court found the application to be urgent and suspended the orders issued by Justice Sibeya pending the determination of the dispute under this application.
Menzies was seeking the stay of execution of the orders granted by Justice Sibeya on the basis that; one, it met the requirements of an interim interdict, that the award of the tender to provide ground handling services to Paragon by Airports Company was patently unlawful; and two, the judgment or orders to evict Menzies from the HKIA were made redundant by the agreement of 30 June 2023 between the Airports Company and Menzies. It is against this backdrop that this court had to determine whether Menzies was entitled to a reasonable notice to cease rendering the ground handling services at the HKIA and to vacate the airport and whether the eviction orders of Justice Sibeya of 29 June 2022 are no longer operational.
Discussion
UIETELE J:
‘I find that the notice of 9 June 2023, is not reasonable, and set it aside. Taking into account the notice periods contained in the contracts between the parties which contracts have now terminated by effluxion of time, I further find that a reasonable period of notice is 30 days.
I further find that the Airports Company on 30 June 2022, by its notice to all stakeholders agreed to create legally binding obligations between it and Menzies and is bound by its undertaking or agreement until they have performed in terms of that agreement. It thus follows that the Airports Company cannot terminate and evict Menzies from HKIA based on the contract which terminated on 30 June 2022. It furthermore follows that if the Airport Company cannot evict Menzies based on the contract that terminated on 30 June 2022, I cannot order a stay of the order of 29 June 2022.’
Held that:
a) An interdict is an injunction. It is a remedy by a court, either prohibiting somebody from doing something (prohibitory interdict) or ordering him to do or carry out a certain act (mandatory interdict). Stay of execution on the other hand (which stems from the Latin term “asset execution” which means let execution cease) is a court order to temporarily suspend the execution of a court judgment or other court order.
b) To determine what is reasonable within a given factual context one must have regard to the full spectrum of the relevant facts and circumstances that bear on the matter in issue.
c) A reasonable notice must allow the person to whom such notice is given, in this case, Menzies, sufficient time in which reasonably to regulate its affairs.
d) Held further that a contract is often defined merely as an agreement made between two or more persons to create a legally binding obligation or obligation.
e) Held further that once parties have agreed to create legally binding obligations they will be bound by the agreement until they have performed in terms of the agreement. In a contract, there is a time or a period within which performance is due. It thus follows that failure to perform at the time when or during the period within which performance is due, without lawful excuse, is a breach of contract because it is failure to do what one has contracted or promised to do.
As a result, NAC’s notice of 9 June 2023 was declared unreasonable and invalid, and set aside.