Business tycoon Wicknell Chivayo and his company Intratrek Zimbabwe (PVT) LTD have won the Supreme Court appeal against the Zimbabwe Power Company (ZPC) in a $22 million damages claim but said he is not willing to claim the money from an already ailing parastatal.
Chavayo through his lawyers said that he is ready to continue with the project without disadvantaging the state entity.
Justice Lavender Makoni sitting with Justice Joseph Musakwa and George Chiweshe all unanimously concurred and dismissed the ZPC appeal for lack of merit and upheld the High Court judgement by Justice Paul Siyabonga Msithu handed down in January this year after a fully contested trial in September 2022.
In a comprehensive 42 page Judgement handed down this morning by Justice Musakwa the Supreme Court noted that ZPC deliberately frustrated the contract at a time the nation is suffering from continuous power cuts and and power deficit.
In the circumstances, the appeal stands to fail. The appeal be and is hereby dismissed. ZPC shall pay the costs of the suit. This brings to an end a long-standing contractual no-holds-bar legal battle between the two parties over the interpretation and implementation of the 100MW Gwanda Solar Project which has dragged over five years. The Supreme Court of Appeal noted that Intratrek Zimbabwe (Pvt)Ltd won the project as the lowest compliant bidder to specification in a competitive tender adjudicated by ZPC and evaluated, approved and awarded by the erstwhile State Procurement Board (SPB) now Procurement Regulatory Authority of Zimbabwe. (PRAZ).
During the High Court trial Mr Chivayo’s demeanour was impressive and his body language and composure were consistent with one who told the truth.
After the tender award by SPB, Cabinet subsequently approved the project for implementation in phases starting with 10 MW and then 90 MW but still ZPC ignored all ministerial directives from its principal shareholder the Government.
According to the joint report done by ZPC and Intratrek, all pre-commencement works equivalent to the advance payment of 5 million dollars were completed and ZPC owes Intratrek US$693 thousand with work valued at US$1 191 374 million dollars not paid for and yet to be executed.
Intratrek sought a declaration that the procurement contract for Engineering, Procurement and Construction (“EPC”) of the 100MW Gwanda Solar Project (ZPC 304/2015) as amended is valid and binding between the parties. Consequent to the declaration, Intratrek applied for a decree of specific performance, in the alternative damages for breach of contract for US$22 million.
Contacted for comment Intratrek Zimbabwe (Pvt) Ltd executive Chairman Mr Wilson Manase said “We receive the long-awaited Supreme Court judgement as highly commendable as it is a vindication of the position that we have always advanced, particularly that the EPC Contract was unlawfully terminated by ZPC. It allays the regrettable misinformation about the project and the aspersions that Intratrek did not perform its contractual obligations. We applaud our judiciary for seeing this matter for what it is, applying the law impartially to the dispute and not being swayed by the court of public opinion.
Be that as it may, our primary objective from the onset on the Gwanda solar project was and remains that of ensuring that the nation of Zimbabwe has 100MW of clean energy fed into the national grid. This is the focus and economic drive of the 2nd Republic under the astute leadership of President ED Mnangagwa. We remain resolute to ensure that with this long standing legal impediment now removed with finality by the Courts, the solar project will be implemented expeditiously and in the interest of the nation.
I wish to reiterate and set the record straight that we are not overly concerned with claiming or receiving any damages from ZESA yet the country is reeling under prolonged hours of load shedding. It will be a dereliction of duty as citizens of Zimbabwe to pursue a remedy that will impoverish a State Utility and prejudice the generality of Zimbabweans, ourselves included. We shall therefore prioritize and emphasize to our partners at ZPC that the demand for power be immediately resolved by allowing the project to be implemented in the shortest possible time.
Lastly, as Intratrek Zimbabwe, we reassert our readiness to implement the project once all the security for payment agreements have been availed to us by ZESA as required under the EPC Contract and per international best practice. Our financiers and technical partners are ready to implement the project without any further delays .”
Intratrek was represented by Advocate Lewis Uriri instructed by Manase & Manase Legal Practitioners while ZPC was represented by Advocate Daniel Tivadar instructed by Muvingi and Mugadza Law Firm