Niël Terblanché
Menzies Aviation Namibia has officially announced its intention to seek permission to appeal a recent High Court judgment delivered at the beginning of October this year.
On October 3, 2023, Justice Shafimana Ueitele of the Namibian High Court handed down a judgment and order of costs that dismissed Menzies Aviation’s Rule 121 application.
In response, Menzies Aviation has filed an application for leave to appeal the entire judgment and the associated costs.
Menzies Aviation’s application for leave to appeal is grounded in several key arguments.
The company alleges that Justice Ueitele erred in both law and fact to the extent that he did not exercise his judicial discretion judiciously. The grounds for appeal include:
Menzies Aviation contends that in paragraph 29 of the judgment, Justice Ueitele incorrectly identified the central issue in the case.
The judge purportedly stated that both Menzies and Paragon had appealed against “the judgment” as if both parties had appealed and cross-appealed the same order. Menzies argues that this was not the case.
Menzies asserts that in paragraph 33 of the judgment, Justice Ueitele failed to give adequate weight to the public harm demonstrated by Menzies.
The company contends that if Paragon were allowed to implement the disputed award without proper notice to Menzies, this would have serious repercussions, and the judge’s decision did not sufficiently account for this.
Menzies claims that Justice Ueitele ignored evidence presented by Menzies that demonstrated “irreparable harm.”
The company argues that this harm extended not only to Menzies but also to the public at large and Namibia as a whole.
Menzies asserts that the judge erred in treating an ex-post facto limited permission granted to Menzies as sufficient to neutralize the prejudice suffered.
Menzies argues that the prejudice it faced was more extensive than the judge acknowledged.
Menzies maintains that Justice Ueitele was unduly influenced by NAC’s claim that it would earn less from Menzies than from Paragon.
In its notice of motion, the company argues that this consideration was flawed because it was based on damages resulting from an admitted illegality.
Menzies contends that Justice Ueitele incorrectly accepted that Paragon’s cross-appeal was arguable, despite the fact that Paragon only appealed against reasons and not any order, which, according to Menzies, is impermissible in law.
Menzies asserts that the court wrongly applied the res judicata principle and the “once and for all rule,” which, according to Menzies, were entirely inapplicable to the case. Menzies argues that the court should have applied Rule 121 law exclusively.
In light of these arguments, Menzies Aviation is now again seeking permission to appeal the High Court’s judgment to the Supreme Court.
The company is requesting that the appeal succeeds, with costs, including costs of legal representation. Additionally, Menzies Aviation is asking for the High Court’s order to be set aside and replaced with one in accordance with its Rule 121 application.
This latest development adds another layer of complexity to the ongoing legal dispute between Menzies Aviation and the Namibia Airports Company, which has garnered significant attention in the legal and aviation sectors.
