The legal team acting for Intratrek Zimbabwe and its director Wicknell Chivayo says the National Prosecuting Authority risks civil liability and criminal abuse of office charges for reviving criminal charges against their clients over the Gwanda Solar Project. The prosecution seeks to prosecute Chivayo and his company on charges of fraud, which the Zimbabwe Power Company paid for various pre-commencement works for the 100MW Gwanda solar project.
But Chivayo, who had put up a tough legal team of three top
Advocates Lewis Uriri, Sylvester Hashiti and Taona Nyamakura, warned the
prosecution to think over a letter which the instructing lawyer Mr Wilson
Manase wrote in relation to the charges last month. Cabinet approved last year
the revised implementation plan for the 100 megawatt (MW) Gwanda solar project
in a manner that required the parties enter into an amended and restated EPC
contract. This entailed the contract would set out new time-frames for
implementation, revised contract price and technical specifications which
parties required to negotiate, which has since been done and now awaiting
signatures by the parties.
The lawyers described the revival of the charges against
their client as malicious in the face of uncontroverted evidence which proves
that the entire amount of US$5 111 224 paid by ZPC was utilised in accordance
with the requirements of the Engineering Procurement and Construction (EPC)
contract.
In his letter to NPA, Mr Manase also attached a report on
the valuation of the pre-commencement works which was jointly carried out and
ratified by ZPC, Intratrek and Chivayo on July 13, 2020.
Mr Manase said the evaluation report confirmed that his
client not only discharged their contractual mandate in full but went further
to utilise their own resources to complete some of the required works.
This, Mr Manase explained that going by ZPC’s own assessment
at the site in Gwanda carried out in July 2020, Intratrek has performed the
pre-commencement works to specification and is in fact owed close to US$700,000
by the power company.
“Conversely, we implore your office to avoid scenarios of
civil liability for unlawful prosecution and criminal abuse of office that
prior to the placement of our client on remand you seriously consider the
entirety of our submissions,” said Mr Manase, responding to the NPA summons
served on Chivayo to appear in court early this month.
“We equally hope that you shall be guided accordingly and
render the need for any legal process at our clients’ disposal to their civil
and constitutional rights being unnecessary to exercise.”
Mr Manase, in his letter, also highlighted the importance
of the Gwanda Solar project to the nation as pronounced by the courts, which he
also said dovetailed and “anchors the objectives under the National Development
Strategy 1 and 2, which are in the economic blueprints of the Second Republic”.
“We regrettably find the spurious instigation of criminal
proceedings against our clients as negating Government’s efforts to develop the
energy infrastructure of the country, in spite of its irrefutable importance to
the economy,” he said.
“It would be indeed a sad day for both justice and economy
of Zimbabwe to allow for untenable and fruitless prosecution of entities that
should otherwise be advancing the national interest of the country, without
sound or legal basis to do so.”
Meanwhile, the Intratrek civil trial begins today in the
High Court with the energy company for specific performance and US$25 million
in damages, after his criminal trial last week was deferred to consider the
contents of the letter.
Justice Tawanda Chitapi will preside over the civil trial
for second time after his ruling on the same matter in December 2018.
The civil trial at the higher court was necessitated by the
Supreme Court’s ruling last year on a technicality that Chivayo had used a
wrong procedure when he first he sued ZPC in the High Court.
In 2018, the High Court ruled that the parties should not
waste precious time “merry dancing in boardrooms and courts” while the whole
country faced a crippling power crisis.
He made the remarks while ruling on a contractual dispute
between Zesa and Intratrek over delays to the project, which Zesa lost, pointed
out that electricity was not generated in courts and board rooms, but at power
stations and urged the feuding parties to dialogue and stop being “dilatory” in
their approach.
Chivayo was summonsed back to court on criminal charges
following the Supreme Court’s decision to reverse his acquittal by the High
Court, which was contested by the National Prosecuting Authority.
The prosecution had appealed against the High Court
decision absolving Chivayo and his company of any criminal liability in the
botched multimillion dollar deal with the power company.
High Court judge Justice Owen Tagu cleared him of all his
charges, including money laundering, in a July 2018 judgment saying they were
civil matters, ruling that the decision of the trial court in dismissing
Chivayo’s application for exception in November 2018 was defective as the facts
could not sustain a criminal suit.
He said allowing the businessman’s prosecution or his
conviction would amount to violation of the Constitution, which provides
protection upon the doctrine of sanctity of contracts.
His judgment underscored that criminal sanctions would not
apply in inherently civil cases. Chivayo had in the lower court attempted to
quash the charges through an application for exception, but this was rejected. Herald
0 comments:
Post a Comment