Hosia Mviringi
Intratek, a company owned by Wicknell Chivhayo, has lost the Gwanda Solar Power Station project after the Supreme Court threw out a 2019 ruling by Justice Tawanda Chitapi that interdicted ZPC from terminating its contract for breach of conditions.
The Supreme Court bench that included Justices Elizabeth Gwaunza, Francis Bere and Chinembiri Bhunu, in reaching the decision contented that Justice Chitapi in his 2019 ruling had ignored the fact that Intratek was already in breach of contract when the company failed to complete Pre-commencement works in stipulated time.
Following this breach of contract, the ZESA subsidiary, ZPC lodged an appeal at the Supreme Court to overturn the lower court ruling and get the power terminate the contract and recover its money already paid to Intratek.
What it means is that ZPC has won the right to claim back the money it had paid to Intratek amounting to US$5million and to go back to tender for a new contractor.
Supreme Court judges observed that in his ruling, Justice Chitapi had failed to observe a glaring material disputation of facts, on its sufficient to cause to dismiss Intratek’s application.
“There were allegations and counterfactual 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 based on viva voce (word of mouth) evidence. Intertek’s endeavour 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,” said a statement by the learned Judges of the Supreme Court.
Despite Chivhayo’s lawyers putting an argument that after Justice Chitapi’s ruling, his company had since completed pre-commencement works and was on the way to fulfilling his part of the contract, it was a little too late as a major part of the contract had been violated.
ZPC had exhausted all provisions of the contract when, at their discretion, they extended the period for completion of pre-commencement works by a further six months from the October 23, 2017 deadline to April 23 2018, after which Conditions Precedent as set out in the contract remained unmet by the contractor.
The effect of this Supreme Court ruling is that the ZPC appeal succeed and that the judgement of the lower Court is set aside and substituted.
ZPC is now empowered to take remedial action against Intratek that include suing for the recovery of US$5 million paid to Intratek in advance to finance Pre-commencement works which never left the ground.
In 2019, it was estimated that Chivhayo’s company had prejudiced the power utility of more than US$50million resulting from the delays in implementation.
Visiting the Gwanda project site on July 5, 2019, Energy Minister Fortune Chasi had this to say;
“100MW is a lot of power. This project was supposed to have been commissioned by December 2017 and delays in implementing the project had resulted in the loss of sales by ZESA equivalent to 500GWhs and potential revenue loss of about US$50 million as of June this year”.
Zimbabwe is trying to ramp up power generation and conservation as a way to reduce the import bill and support local industry.
The Gwanda Solar Power Generation plant would have come in handy as the government makes effort to diversify its energy sources with a special bias on renewable energy.
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