THE Supreme Court has overturned a High Court ruling and effectively cleared the Zimbabwe Power Company (ZPC) to cancel a multi-million-dollar solar tender awarded to businessman Wicknell Chivayo and his Intratrek Company.
Chivayo was awarded a US$183 million Gwanda Solar Project
tender, and he also received US$5 million pre-commencement fees without a bank
guarantee and without any work done. He was later sued by the ZPC seeking to
have the contract nullified.
The businessman’s company rushed to the courts in 2018
after ZPC gave it two weeks to complete pre-commencement works at the site in
Gwanda and to provide a bank guarantee, failure of which it would cancel the
project.
In June 2019, High Court judge Justice Tawanda Chitapi
ruled that the contract between ZPC and Intratrek was still valid despite
apparent contractual breaches by the contractor.
However, Supreme Court judges Francis Bere, Elizabeth
Gwaunza and Chinembiri Bhunu on Monday ruled that Justice Chitapi erred in not
finding that there was a material dispute of facts, following which he should
have dismissed Intratrek’s application.
“Undoubtedly, there were serious intractable material
disputes of fact incapable of resolution without viva voce evidence. It is,
therefore, plain that the case at hand was riddled with serious material
disputes.
“There were allegations and counter factual allegations as
to who is to blame for the alleged breach of contract. There is also a dispute
as to whether or not the contract has since expired due to the effluxion of
time.
“Without any further ado, it is clear that this was a case
incapable of resolution without going to trial to determine the merits on the
basis of viva voce (by word of mouth) evidence. Intratrek’s endeavour to avoid
trial in the face of glaring material disputes of facts gives the unmistaken
impression that it has something to hide that could be unearthed in the course
of trial proceedings.”
The Supreme Court judges said it was “improbable and not in
the least conceivable” that Intratrek’s lawyers were ignorant of the proper
procedure to adopt when they approached the High Court. Newsday
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