BY MOSES MATENGA
THE Supreme Court has overturned a High Court ruling and effectively cleared the Zimbabwe Power Company (ZPC) to cancel a multi-million-dollar solar tender awarded to businessman Wicknell Chivayo and his Intratrek Company.
Chivayo was awarded a US$183 million Gwanda Solar Project tender, and he also received US$5 million pre-commencement fees without a bank guarantee and without any work done.
He was later sued by the ZPC seeking to have the contract nullified.
The businessman’s company rushed to the courts in 2018 after ZPC gave it two weeks to complete pre-commencement works at the site in Gwanda and to provide a bank guarantee, failure of which it would cancel the project.
In June 2019, High Court judge Justice Tawanda Chitapi ruled that the contract between ZPC and Intratrek was still valid despite apparent contractual breaches by the contractor.
However, Supreme Court judges Francis Bere, Elizabeth Gwaunza and Chinembiri Bhunu on Monday ruled that Justice Chitapi erred in not finding that there was a material dispute of facts, following which he should have dismissed Intratrek’s application.
“Undoubtedly, there were serious intractable material disputes of fact incapable of resolution without viva voce evidence. It is, therefore, plain that the case at hand was riddled with serious material disputes.
“There were allegations and counter factual 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 on the basis of viva voce (by word of mouth) evidence. Intratrek’s endeavour to avoid trial in the face of glaring material disputes of facts gives the unmistaken impression that it has something to hide that could be unearthed in the course of trial proceedings.”
The Supreme Court judges said it was “improbable and not in the least conceivable” that Intratrek’s lawyers were ignorant of the proper procedure to adopt when they approached the High Court.
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