- June 16, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
The Namibia Airports Company Limited (the Airports Company) on 29 June 2022 obtained a judgment in its favour from Justice Sibeya in the High Court against Menzies Aviation Namibia (Pty) Ltd (Menzies) declaring that the agreement in terms of which Menzies was rendering ground handling services at the Hosea Kutako International Airport (HKIA) on behalf of the Airports Company, terminated on 30 June 2022. In addition to that declaration, the court further declared that Menzies had to seize rendering ground handling services on behalf of the Airports Company and vacate the HKIA by the end of 30 June 2022.
On 30 June 2022, despite Justice Sibeya’s judgment, the Airports Company issued a notice to all stakeholders that Menzies Aviation will continue to provide ground handling services at HKIA until further notice. Menzies was, however, still aggrieved by the judgment of Justice Sibeya and lodged an appeal to the Supreme Court against the entire judgment and orders.
On 9 June 2023, the Supreme Court delivered its judgment in the matter and dismissed Menzies appeal. The Airports Company immediately gave Menzies notice to cease rendering the ground handling services and vacate the HKIA by 13 June 2023. Menzies filed an urgent application on Monday, 12 June 2023 at 12h18 and it was set down for hearing at 17h30.
The relief sought by Menzies was in essence an order staying or put otherwise delaying the execution of Justice Sibeya’s order of 29 June 2022, pending the determination of Menzies’s complaint that the Airports Company acted unreasonably and irrationally when it gave it three days’ and 10 hours’ notice to vacate the HKIA.
Paragon Investment Holdings (Pty) Ltd JV Ethiopian Airlines (Paragon) did not have an opportunity to file answering papers. Therefore, in terms of Rule 66(1)(c), Paragon raised the following legal issues:
Firstly, that the High Court had no jurisdiction to make an order which had the effect of trimming down or reviewing another Judge’s order. Secondly, Menzies’ application was a complete abuse of the court’s process. Thirdly, the Supreme Court order considered together with the order of Justice Sibeya was binding and final in terms of section 17 of the Supreme Court Act. Fourthly, the application could simply not be heard as it would result in a violation of the Second Respondent’s rights to a fair trial under Article 12 of the Namibian Constitution. Fifthly, there was no public law decision made by the Airports Company after the Supreme Court order which could be open for a review as the order of Justice Sibeya was operative and of immediate effect. Hence, the issue of more time before the eviction was res judicata between the parties. Lastly, that the matter was not urgent given the background.
At the hearing on 12 June 2023, the points in limine raised by Paragon were first decided by UEITELE J who made the following preliminary remarks:
‘ [15] …It is now a well-established principle of our law, which principle is necessary to emphasise that constitutional rights and court orders must be respected. In a constitutional democracy like ours, no one must be left with the impression that court orders (even if they are flawed) are not binding, or that they can be flouted with impunity. I, therefore, associate myself with the remarks by the Constitutional Court of South Africa when it said:
‘If the impression were to be created that court orders are not binding, or can be flouted with impunity, the future of the judiciary, and the rule of law, would indeed be bleak.’
[16] It thus follows that a court’s decision whether it be a court order, or a judgment is operational and executable once it is granted or handed down by the court. Although this holds true, there are instances where a party may approach a court for the court to suspend or stay the execution of its order or judgment…’
Having considered the matter, it was held that:
- a) The matter was urgent and to be heard on an urgent basis as envisaged in Rule 73 of the Rules of Court.
- b) Held further that, the court had jurisdiction to hear Menzies’ application because Menzies was not seeking an order from the court which would have the effect to trim down or review Justice Sibeya’s order.
- c) Held further that, Menzies’ application did not amount to an abuse of the processes because in this matter Menzies contended that the three days’ notice that it was given by the Airports Company was irrational and unreasonable. Menzies has thus come to court for a declaration to that effect.
- d) Held further that, the issue of res judicata did not arise because the question of whether the three days’ notice that the Airport’s Company gave Menzies to vacate the HKIA is reasonable or not was never determined by either Justice Sibeya or the Supreme Court.
- e) Held further that, on the authority of Standard Bank v Atlantic Meat Market, if the court heard the matter and issued a rule nisi, the Airports Company and Paragon’s right to a fair trial as guaranteed under Article 12 of the Constitution would not be violated.
Accordingly, the second respondent’s points in limine were dismissed. In the meantime, the orders issued by Justice Sibeya on 29 June 2022 under case number HC-MD-CIV-MOT-GEN-2022/00233, were suspended pending the determination of the dispute under this application.