In an unusual and layered court case that is still unfolding at the Gaborone High Court and Court of Appeal, the Civil Aviation Authority of Botswana (CAAB) argues in its court papers that the presence of a former service provider at the Sir Seretse Khama and P.G. Matante International Airports represents an aviation security threat.
The case at the Gaborone High Court has pitted CAAB with Rolling Sure, a company that entered into an agreement with the former to provide carpark management services at the two airports. SSKIA is in Gaborone while PGMIA is in Francistown. Provision of these services necessarily entailed installation of equipment (some of it automated) at both airports.
Down the road, this relationship soured: the Authority says that the company defaulted on its payment obligations; conversely, the company says that such default was a direct result of the Authority unilaterally altering the contract, in the process making it extremely difficult for it to do business and generate enough revenue. The inflection point was an arbitral award that favoured CAAB. The award cancelled the lease agreement and specifically ordered that Rolling Sure should be evicted from SSKIA and PGMIA.
A month after the award, CAAB demanded that Rolling Sure vacate its premises with immediate effect. In its court papers, the Authority says that the company “has not bothered to respond and to date still remains in occupation of [CAAB] premises”, being the two airports. In themselves, arbitral awards don’t have legal force and effect and to invest them with such, parties have to apply to the High Court for an order. Thus it was that CAAB applied for an eviction order from Justice Michael Motlhabi at the Gaborone High Court through its General Legal Counsel and Corporate Secretary, Otsetswe Koboyankwe. In his founding affidavit, Koboyankwe argues that Rolling Sure’s “unlawful occupation … constitutes a breach in aviation security.”
In elaboration of that point, the CAAB lawyer asserts that the Authority is statutorily obligated to regulate the security of aerodromes, aircraft, regulated agents and catering operators for purposes of protecting passengers, crew members, aerodromes and other aviation facilities.
“Rolling Sure’s] unlawful occupation of [CAAB’s] premises is an impediment to [CAAB’s] statutory obligation,” argues Koboyankwe, adding that as a result of the latter, CAAB “is unable to secure and regulate the security of its premises and this jeopardises aviation security.”
Koboyankwe broadens the scope of culpability by invoking the Convention on International Civil Aviation which Botswana, through CAAB, is party to. He says that the country has an obligation to ensure that aviation security and facilitation services are provided in terms of the Standards and Recommended Practices. The failure, he points out, “means that Botswana, through [CAAB] is in breach of its international obligations under the Convention on International Civil Aviation and this breach can only be purged by the urgent eviction of [Rolling Sure].”
However, no specific allegation (in the context of active subversion of aviation security) is made against the company. The extent of the charge – such as it is, is that CAAB’s lack of control over the area that was leased to the company poses aviation security.
After the collapse of this business relationship, CAAB is also trying to have Rolling Sure evicted from its premises but without success so far.
In a separate application, the Authority sought to perfect its landlord’s hypothec by attaching Rolling Sure’s property. “Landlord’s hypothec” is a legal term that refers to a landlord’s right to keep some of the tenant’s belongings as security for unpaid rent and only applies to items that the tenant brought onto the leased property.
In terms of an arbitral award issued in October 2021, Rolling Sure has been ordered to pay the claimant the sum of P2 146, 784.45 together with interest accrued from November 2019 to date of payment at the rate of 1.5 % per month calculated on a monthly basis.
“[CAAB] has every reason to believe that [Rolling Sure] will vacate the leased premises any moment from now and this will make it difficult for [CAAB] to recover its rental arrears,” the Authority argues in another affidavit deposed to by Koboyankwe. “Should [Rolling Sure] vacate the leased premises, [CAAB] would have lost the security which Rolling Sure’s movable property would provide over the rental arrears owed. It is therefore necessary that [CAAB] move with due speed on urgency to exercise its landlord’s hypothec over Rolling Sure’s movable property which is currently on the leased premises.”
He adds that a similar application brought in the future would be “an exercise in futility” because it would take months for it to be heard – at which time Rolling Sure and its property “would be long gone.” Koboyankwe further argues that in the event of such eventuality, CAAB “will not have substantial redress.”
In his opposing affidavit to the latter application, Kennedy Motang, the director of Rolling Sure, successfully counter-argued that the arbitral award was made with respect to damages for breach of contract and not rental arrears.
“The landlord’s hypothec is ancillary to the lease agreement. Once the agreement was cancelled, the landlord’s hypothec was extinguished,” says Motang in his affidavit, adding in another part that CAAB should have made this particular application before initiating arbitration proceedings.
Justice Motlhabi ruled in favour of Rolling Sure, stating in his ruling that “no proceedings of recovery of rent have been instituted and therefore [CAAB] cannot seek the confirmation of its hypothec where such action does not exist. There is no evidence of any proceedings filed by the applicant for recovery of rent and this is a crucial step in the action for recovery of rental arrears.”
CAAB has appealed this judgement at the Court of Appeal. Rolling Sure is itself appealing a High Court judgement in which Justice Modiri Letsididi ruled in favour of CAAB. In the latter case, CAAB had sought an application making the arbitral award a court order.
As this stalemate continues, members of the public are complaining about the carpark management service at SSKIA. Late last year, CAAB put out a press statement in which it said that it “sincerely regrets the inconvenience brought to its esteemed stakeholders and clients by the slow parking service at the Sir Seretse Khama International Airport.”
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