THE Zimbabwe Power Company (ZPC) has lost its Supreme Court appeal against a High Court ruling reinstating businessman Wicknell Chivayo’s US$173 million contract to set up a solar plant in Gwanda.
This becomes Chivayo and his company Intratrek Zimbabwe’s third victory in this legal dispute this year, also bringing to an end the court battle that has been dragging on for years.
In January this year, High Court judge Siyabona Musithu upheld an application by Chivayo who had dragged the Zimbabwe Electricity Supply (Zesa) Holdings subsidiary to court, fighting to have the deal back.
The Zimbabwe Power Company (ZPC) withdrew the contract when Chivayo’s firm failed to complete preliminary obligations after being paid US$5.6 million by the power generator.
A bid to revive the case by the National Prosecuting Authority (NPA) failed again after the businessman and his company were found not guilty and acquitted twice.
Before the latest acquittal, Justice Musithu had ruled in favour of Chivayo, reinstating the contract.
However, the matter in which h3 was demanding US$22 million in damages for defamation was not dealt with.
Chivayo, through his company Intratrek Zimbabwe had sued ZPC US$22 million for defamation after ZPC caused his arrest.
He had also demanded US$3 million compensation for expenses he had incurred between 2013 and 2018 in funding the project.
In January this year, Justice Musithu upheld Chivayo’s application before slapping ZPC with costs on a higher scale.
Chivayo had argued that the ZPC besmirched him by getting him arrested on fraud allegations emanating from the solar project.
The ruling was expected to bring to an end the legal dispute that started in 2015.
However, the ZPC filed an appeal at the Supreme Court, complaining that the lower court erred when it ruled in favour of Chivayo.
The ZPC’s appeal was heard by the bench comprising justices Lavender Makoni, George Chiweshe and Joseph Musakwa who dismissed it with costs.
“The Supreme Court has dismissed the appeal by the Zimbabwe Power Company.
“You will recall that the High Court had made a finding that the contract between Intratrek and ZPC was valid and subsisting and that it had not been properly cancelled and that specific performance must be granted.
“ZPC had appealed to the Supreme Court, contending that the contract had been validly cancelled and terminated by the passage of time.
“They’d alleged certain breaches on the part of Intratrek. The Supreme Court found this to be without merit.
“It found that the High Court properly exercised its discretion in the assessment of the evidence that was before it and correctly came to the finding that specific performance ought to be granted.
“As a result, therefore, the appeal was dismissed. What this means is that the Gwanda solar project will have to go on and Intratrek will have to undertake that work in accordance with the judgement of the High Court,” said Advocate Lewis Uriri who was representing Chivayo and his company.
Before the Supreme Court, the ZPC through its lawyer Daniel Tivadar insisted that Chivayo did not fulfil the contract hence the High Court erred when it ruled that the contract was binding and valid.
Tivadar said the project was supposed to have been completed in 2019.
“It’s common cause that the respondents have not satisfied the conditions precedent and what they cannot tell this court is that we were going to fulfil the project. There is no evidence; that’s the simple point,” said Tivadar.
Uriri insisted that evidence by his client before the lower court was not contested.
“So the appeal is with no merit and ought to be dismissed in its entirety with costs,” said Uriri.
The agreement between the ZPC and Intratrek was signed subsequent to a successful tender bid, for the engineering, procurement, and construction of a 1 00-megawatt Gwanda Solar Power Station Project.
Intratrek was awarded as the lowest compliant bidder to specification out of six bidders at a cost of US$173 million.
Arguing his case before the High Court, Chivayo said if given another chance, he is going to complete the first phase of the 100MW project in half a year.
Chivayo submitted that people should not be too shocked over delays in executing projects, saying there was nothing unusual, considering the hostile Zimbabwean economy.
“There is nothing unusual with projects taking longer because of a lot of things like the country’s economic sanctions and solvent risks associated with our country,” he said.
The businessman said he longed for another opportunity to fulfil what the parties had initially agreed.
He said he previously played his part by approaching banks in a bid to fund the projects and did nothing wrong.
Chivayo also blamed local media for ruining his dream through publishing stories he insisted were fraught with factual errors.
He also revealed that his company paid sub-contractors who did the pre-commencement work after ZPC refused to pay.
Meanwhile, the ZPC released a statement in reaction to the Supreme Court ruling, clarifying that the judgement does not mean the state power utility will pay US$22 million for defamation.
“The Supreme Court judgement has the effect of upholding the High Court judgement granted by Honourable Justice Musithu in January 2023, in which the Gwanda EPC Contract was found to be still valid and binding on both ZPC and Intratrek Zimbabwe(Private) Limited ‑(“Intratrek”).
“For the avoidance of doubt, the High Court judgement did not award Intratrek damages in the sum of US$22 million as alleged by some online publications or any other sum in damages for that matter.
“To the contrary, the High Court only granted an order for specific performance, which in simple terms requires parties to perform their respective obligations under the EPC Contract.
“Considering that the Supreme Court is the final Court of Appeal in this instance, the legal implication of today’s judgement is that ZPC and Intratrek will revert to the position that they were before the 23rd April 2018,” said the ZPC.
A full judgement on the matter is yet to be released. — STAFF WRITER.