CemAir (5Z, Johannesburg O.R. Tambo) will not be impacted operationally by a South African court ruling ordering the airline to return all equipment in its possession owned by airport groundhandler Swissport South Africa by December 15. This is the word from CEO Miles van der Molen, who told ch-aviation that the matter was an "ongoing commercial dispute and will have no operational impact".
The Gauteng High Court in Johannesburg on December 10 ordered CemAir to return within five days all the equipment, which includes airport passenger buses, baggage wagons, ground power units, air start units, a narrowbody tug, and three passenger aid units. According to the court papers, seen by ch-aviation, Judge Leonie Windell authorised the court sheriff to seize the equipment should the airline fail to comply with the order within the stipulated time and deliver it to the groundhandler at CemAir's cost.
According to the judge, Swissport South Africa had provided equipment and services to CemAir under several agreements for seven years up to April 2023. In March 2023, after the agreements expired, CemAir entered into a month-to-month lease for the equipment, which lapsed on April 30, 2023, with no payment for April made.
CemAir had collected the equipment between April 6 and 17, 2023, but claimed that not all items had been received. The lease was not extended, but CemAir failed to return the equipment when the contract expired. Attempts to resolve the situation, including discussions about purchasing the equipment, were unsuccessful. Swissport South Africa demanded the return of the equipment and payment of outstanding lease fees, but CemAir disputed the condition of the equipment and the amounts owed.
On June 30, 2023, CemAir made a payment for the equipment, followed by additional payments on September 1 and October 31 of that year. On July 11, 2023, Swissport South Africa launched legal proceedings. In an answering affidavit filed on October 30, 2023, CemAir claimed a tacit lease agreement justified its equipment retention.
However, the judge dismissed the tacit agreement as "an afterthought in an attempt to escape liability". "The respondent’s defence of a tacit agreement is untenable and farfetched and can be rejected outright. I am satisfied that the respondent has no legal right to retain possession of the equipment and was unable to show cause why the equipment should not be returned to the applicant," she found.
She also stated that "there is no basis to believe that there was any tacit agreement, pending a sale agreement that reached no further than an enquiry stage." She concluded: "The alleged potential sale agreement claimed by the respondent clearly reached no further than the enquiry and/or discussion. There was no certainty or undertaking that such a sale agreement would ever come to fruition or would even be possible."
