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High Court Judge justice Tawanda Chitapi, who presided over
the case in December last year, ruled at that time that the State Power
Utility, ZPC, had by its actions frustrated the implementation of the contract
with Intratrek for the construction of the 100 megawatts Gwanda solar farm
project.
On Wednesday, Justice Chitapi reserved judgment in the case
where Intratrek had sought the execution of his earlier order, but promised to
give his position on the application within the earliest possible time given
national interest at stake due to power shortages blighting the country.
This comes after Intratrek boss, following conclusion of
his criminal prosecution, at the instigation of ZPC and in which he has been
absolved of wrongdoing, attempted to remobilise on the Gwanda solar farm site.
However, ZPC insisted that the contractor had failed to
perform in time in the first instance and that after his earlier successful
contestation of its attempt to cancel the contract, the matter was the subject
of an appeal at the High Court against Justice Chitapi’s judgement.
The parties had first gone to the courts following a
dispute over validity of the contract between the parties when the power
utility claimed intratrek had failed to complete precommencement works within
stipulated time, hence claimed the contractor violated their contract.
But Justice Chitapi ruled that ZPC had in fact breached
terms of the contract and frustrated the project when it instigated the arrest
of Intratrek managing director, Chivayo, on trumped up charges of fraud, which
resulted in the doctrine of fictional performance coming into play.
In his earlier ruling, the high court judge found ZPC to
have grossly abused its rights by involving a third part, the police, in the
settling of a civil dispute when clear dispute resolution mechanism provided
for in terms of the agreement signed between the contractual partners existed.
Justice Chitapi ruled that given the shortcomings of ZPC,
which constrained the contractor from executing his duties, among them pressing
malicious criminal charges against Mr Chivayo and failure by the State to
provide certain guarantees, which stalled a Chinese loan to ZPC for the
project, the contract was still valid and binding as was originally
In the fraud case, ZPC argued that it had paid Intratrek
Zimbabwe US$5,1 million, without a bank guarantee, but the contractor had
allegedly failed to deliver value, as agreed within the parties’ contract, in
time.
When the matter was heard at the High Court, before Justice
Chitapi, the High Court Judge ruled that ZPC was in fact to blame for
Intratrek’s failure to perform the agreed works in time and ordered the parties
to meet in 60 days to review progress on the project or that ZPC pays us$23
million.
ZPC has declined both and instead, has launched an appeal
at the Supreme Court, insisting the High Court erred in its findings and ruling
in favour of Intratrek because the contractor failed to deliver value as agreed
and in time.
Intratrek legal counsel, Advocate Lewis Uriri, instructed
by Wilson Manase of Manase and Manase Legal Practitioners, submitted that the
appeal by ZPC against Justice Chitapi’s judgment, which was in favour of
Intratrek, was unlikely to succeed given the robustness of their application,
which no court of appeal would overturn, unless the order was grossly
unreasonable that no court acting properly would issue it.
“It is beyond doubt that a declaratory order is not
suspended by noting an appeal, when this is known, but one devices means of undermining an order that ought to be
obeyed through the medium of notice of an appeal, knowing or ought to know and
by necessary implication do in fact know, that it does not suspend the order,
that is a deliberate abuse of the process of the court and a clear stratagem to
ensure spanners are thrown into the wheels of justice,” Advocate Uriri said in
court.
“Leave to execute ought to be granted at the client to
legal practitioner scale. The second point that I make is simply this, even
relating to the ordinary grounds, for the grounds of leave to execute pending
appeal, this is an application that ought to be granted,” he said.
Advocate Uriri said while possibility of success on appeal
were non-existent, ZPC were acting in a manner consistent with attempts to
scuttle the contract, whose validity the court upheld, as evidenced by actions
of certain “state actors” whom he said were pushing the power utility to pursue
all avenues to recover outstanding funds from Intratrek.
“When one looks at these grounds of appeal and the broader
outlook, the national interest at stake, which the court itself related to and
the preponderance of equities, which had been adequately dealt with in the
affidavits, one is left with no doubt this appeal is no more than a time buying
gimmick.
“This more so given that certain State actors have in
recent times come out in the public domain to state that regardless of what the
court has said, they are going to adopt a particular line. My learned colleague
will say the court cannot relate that which appears in the press, let me draw
your attention to the State of Hawaii (USA) and others versus Donald J Trump.”
In the case, Advocate Uriri stated, the US Supreme Court
judge Justice Watson ruled it could not cower into a corner, pull the shutters
closed and pretend it has not seen what it has.” Herald
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