Justice Chinembiri Bhunu’s judgment comes after High Court
judge, Justice Tawanda Chitapi, absolved Intratrek of any wrongdoing or causing
delays in the implementation of the project and declared the contract valid,
extant and enforceable.
But the Supreme Court, allowing Zimbabwe Power Company
(ZPC)’s appeal, said the two parties should have first argued the matter in
court.
Intratrek recently
sued ZPC in the High Court when it applied for a declaration confirming that
the contract for the Gwanda Solar Project was valid, coupled with an order for
specific performance.
In default of that order, it wanted US$25 million in
damages. The validity order was granted by the High Court.
Justice Chitapi had ordered that Intratrek must be paid
when ZPC had said no work was done, but Justice Bhunu reversed this judgment.
In his recent judgment, Justice Bhunu observed that Chivayo
tricked the High Court because ZPC would have revealed all underhand dealings
that have taken place from the time the contract was awarded.
ZPC is being represented by Advocate Tawanda Zhuwarara.
“The respondent’s endeavor to avoid trial in the face of
glaring material disputes of facts gives the unmistaken impression that it had
something to hide that could be unearthed in the course of trial proceedings.
“Considering that the respondent was represented by a
competent firm of legal practitioners, it is inconceivable and not in the least
probable that it was ignorant of the proper procedure to adopt in the
circumstances of this case,” ruled Justice Bhunu.
He further stated that the respondent deliberately chose
the wrong procedure to shield itself from the glare of a full-fledged trial to
wood wink the court a quo, and it succeeded.
“The respondent took a dive into the dark and deliberately
threw all caution sounded by precedent to the wind. This, therefore, is a
proper case where the court a quo should have expressed its displeasure by
dismissing the application with costs,” he said.
The Supreme Court ruled that a full hearing was required in
the civil lawsuit between Intratrek Zimbabwe and ZPC, before the High Court
three years ago, the Supreme Court has ruled in an appeal judgment is in the
process of being overtaken by events.
ZPC and Intratrek had signed $172 million agreement for the
construction of the Gwanda solar project as part of Government efforts to
address crippling power shortages. ZPC claimed the contract failed to meet
conditions within the agreed period of 24 months.
However, Intratrek filed a lawsuit disputing the claims and
making a counter claim that ZPC, as contractor, had frustrated implementation
of the project, hence breached the contract. Newsday
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