Niël Terblanché
After the High Court’s decision of 23 May 2023 which dismissed Menzies’ application to interdict NAC from implementing NAC’s award of the tender to provide ground handling services at HKIA to Paragon until finalization of a review application that Menzies has filed in the High Court in respect of the tender referred to above, Menzies has since filed an appeal to the Supreme Court against the said High Court decision.
On 12 July 2023, Menzies filed an application in the Supreme Court requesting that court to expedite the determination of its appeal. The Supreme Court in its order dated 25 July 2023 declined Menzies’ application to have the said appeal decided on an urgent basis.
As a result of Tuesday’s order, the Supreme Court effectively indicated that it has not been persuaded by Menzies that its appeal should be determined with urgency.
The effect of the Supreme Court order is that Menzies’ appeal will take a long time to be decided upon by the Supreme Court, as it will join the long que of appeals in other cases that were filed before it. This could possibly take 2 to 3 years, depending on the number of appeals that came before Menzies’ case.
The practical significance of the said Supreme Court order is that Menzies will not be able to fast-track its appeal against the High Court’s order that dismissed Menzies’ application that sought to interdict NAC from commencing with the agreement it concluded with Paragon to perform ground handling services at HKIA. This essentially means that Paragon and NAC are not prevented from implementing their agreement just because Menzies filed an appeal in this respect, as the mere filing of the appeal does not provide Menzies with a court order stopping implementation of the agreement. The said appeal also does not protect Menzies from being evicted from HKIA in terms of the Supreme Court judgment of 9 June 2023 which found that Menzies does not have the right to perform ground handling services at HKIA with effect from 1 July 2022, and that Menzies is in fact unlawfully invading NAC’s premises at HKIA by engaging in self-help to provide ground handling services at the country’s biggest airport. The said Supreme
Court judgment unanimously confirmed a High Court judgment of 29 June 2022 which reached the same conclusion. The Supreme Court also indicated in the said judgment that Paragon is the correct entity that should legitimately provide ground handling services at HKIA after its appointment by NAC to perform the said services after publicly conducting a transparent procurement process in accordance applicable procurement laws and procedures.
The fact that Menzies does not have a right to provide ground handling services at HKIA must have been a key consideration in arriving at the Supreme Court’s decision referred to above, as in terms of the law the interdict sought by Menzies cannot be granted if Menzies does not have the aforesaid right.
Both the High Court and the Supreme Court already decided that Menzies does not have the relevant rights in terms of the judgments cited above.
It is in light of these facts and the said earlier judgments that the Supreme Court must have come to the conclusion that Menzies’ appeal lacks reasonable prospects of success and that Menzies application to have the appeal decided on an urgent basis cannot be justified under the circumstances.
The parties involved in litigation of the above matter are currently waiting for the High Court’s judgment on 4 August 2023 to determine whether NAC’s notification of Menzies to stop providing ground handling services at HKIA was reasonable, after Menzies filed an urgent application in the High Court on 12 June 2023 challenging the reasonableness of the said notification.
NAC’s notification to Menzies sought to implement the Supreme Court judgment of 9 June that found that Menzies has been illegally providing ground handling services at HKIA since 1 July 2022.
