….as Challenge Air increases pressure to get payment
By Staff Reporter
Air Namibia’s fate is inextricably linked to government, especially now that a Belgian aviation firm which is owed about N$420 million (25 million Euros) by the airline has instructed its legal team in Europe to proceed with the freezing of Air Namibia accounts.
The airline’s assets in Germany are now also at risk of being attached.
Air Namibia has again argued that Challenge Air does not have a case because it was liquidated two decades ago.
This follows a 2015 judgment made by the Munich Regional Appeal Court.
Local business mogul Wilhelm Shali and Anicet Baum who are Challenge Air’s representatives are represented by prominent lawyer Sisa Namandje.
“At this stage assets belonging to both Air Namibia and Transnamib Holdings in Europe are now liable for attachment and execution,” reads a letter written by Challenge Air’s legal team.
The Patriot understands the letter was served to government yesterday.
It is also understood that after it was served to works and transport minister John Mutorwa, he convened a crisis meeting with the Air Namibia leadership in order to map the way forward.
The letter further states that: “Without any prejudice to the attachment and execution process which has been successfully concluded in Germany, we again implore your esteemed office to convene a formal meeting regarding a way forward on this matter and we are prepared to stay the execution of judgment by three working days within which it is hoped that an amicable resolution or further dates for deliberations could be set failure of which the execution will proceed.”
Air Namibia racked up the bill as a result of services such as maintenance, rent and insurance premiums rendered.
Challenge Air then went ahead and successfully obtained a court order that compels Air Namibia to settle the debt or risk having its Europe-bound aircraft being impounded. It would appear that the judgement is valid for 30 years.
Mutorwa opted not to respond yesterday when approached for comment because “the matter will be in court on 3 December 2018”.
“It will be in our High Court so let us wait and see how things will play out. You must remember that this matter dates back to 1998,” he said.
Mutorwa was also perplexed that the letter delivered to him from Challenge Air’s legal team is dated 10 October 2018 and not 22 November 2018 yet stating a response time of three days. Air Namibia’s spokesman Paul Nakawa said Air Namibia has seen the letter but also opted not to say much.
Air Namibia’s current crop of leaders have been crying foul saying they now have to take the blame for the historical mess of the airline.
“We did not cause this mess, instead it is not because of us that the airline is struggling but everyone makes it seem as if the current management is the root cause of Air Namibia’s crises. Despite that, we will continue doing our best to salvage what is left of the airline,” said a management member at the airline who opted not to be named.
Information obtained by The Patriot also indicates that Challenge Air’s rational for having approached the German court could be due to the fact that Air Namibia has a Ticket Sales Agent (Aviareps) as well as a bank account in respect of which an attachment may be effected, the airline further operates its aircraft to Frankfurt. “As far as it relates to the Air Namibia aircraft, they are operated under lease agreements and can therefore not be attached. The fear in this respect relates to the fuel contained in the Aircraft.
The legal opinion provided in this regard indicates that, though Air Namibia aircraft cannot be attached by Challenge Air, it is indeed possible to attach the Kerosene (fuel) contained in the aircraft.
The latter is due to the fact that, under German law, kerosene (fuel) is a movable physical object. The attachment of a movable physical object in the custody and control of the debtor is effected by the court’s appointed enforcement officer taking possession of it,” reads a document seen by this publication.
It further reads that: “Under German law therefore the enforcement officer does not have to examine whether the debtor is the owner of the physical object, or indeed entitled thereto.
In this particular case the German law works on the general assumption that someone who has possession over a moveable object most likely is also the owner thereof.
Otherwise the enforcement process would be complicated. One exception to this is that where it is evident to the enforcement officer that the moveable objects belongs to a third party, the officer has to refrain from the attachment.