Court reserves judgement in ZPC, Chivayo fight

The Supreme Court has reserved ruling in a contract battle between businessman Wicknell Chivayo and the Zimbabwe Power Company (ZPC), after hearing arguments by lawyers representing both parties.

This comes as the Zimbabwe Anti-Corruption Commission is seeking prosecuting powers for at least 200 high-profile cases and controversial businessman has been desperate to fend off State appeals against his High Court acquittal on fraud charges, and reinstatement of his Gwanda solar project contract.

Meanwhile, Intratrek Zimbabwe hired top South African legal eagle Francois Joubert SC in its battle with the Zimbabwe Power Company (ZPC) over the long-delayed Gwanda solar power plant.

This emerged at the High Court last Thursday when Justice Minister Ziyambi Ziyambi disowned a September 24 letter by his ministry’s secretary, refusing to grant a special licence to Joubert to represent Intratrek in two Supreme Court cases and the company’s director, Wicknell Chivayo, in a criminal case.

Intratrek and Chivhayo had launched an urgent chamber application after justice ministry secretary Virginia Mabhiza wrote a letter saying Joubert, who was born in Zimbabwe before moving to South Africa in 1979, would not be allowed to practise law in the country.

But Ziyambi tendered an affidavit in response to the application, saying Mabhiza “spoke on behalf of our ministry and did not purport to be speaking on my behalf.”

“The import of section 7(1) of the Legal Practitioners Act is very clear. It requires me, as the minister… to grant or refuse to grant an exemption certificate…,” Ziyambi said.

The minister said he was still considering Joubert’s application, prompting Intratrek and Chivayo to withdraw their application.

The Supreme Court will begin hearing an appeal by ZPC against a High Court judgment delivered in December last year in which the court granted an order decreeing that a procurement contract with Intratrek Zimbabwe for the construction of the US$172 million Gwanda solar power plant was still valid and binding.

ZPC unsuccessfully argued that the agreement had been cancelled or had expired by effluxion of time owing to Intratrek’s failure to complete pre-commencement works, for which the company had been paid US$5,6 million.

In June, the High Court granted Intratrek’s application for leave to execute pending ZPC’s appeal at the Supreme Court.

ZPC filed an application for leave to appeal that ruling, but the company suddenly withdraw the appeal on September 25 before Justice Tawanda Chitapi.

ZPC’s lawyers said the withdrawal was motivated by the fact that due to delays in hearing their application, and the imminence of the main appeal which starts Monday, “the pursuit of the application would amount to an academic exercise.”

Justice Chitapi heard from Intratrek’s lawyer, Advocate Lewis Uriri, who said after being granted leave to execute, Itratrek had since carried out substantial work on the solar power plant site in fulfilment of its contract.

Uriri argued that ZPC’s decision not to proceed with seeking leave to appeal against the granting of leave to execute “amounted to a pre-emption of the main appeal.”

Joubert is expected to join Chivayo’s legal team which also includes Wilson Manase and Uriri in a criminal matter in which prosecutors are appealing the businessman’s acquittal by a magistrate on a charge of bribing former ZPC chairman Stanley Kazhanje to stop ZPC from cancelling his contract.

Joubert does not come cheap. It has been reported that the lawyer charges R150,000 per day.

Chivayo has won government tenders of over US$600 million, some say as a reward for his associations with the former president Robert Mugabe, who was toppled in a 2017 military coup.

The new government of President Emmerson Mnangagwa has pursued Chivayo with fervour, as the country battles a major power deficit, but the businessman has so far won all his court battles.

Along with the Gwanda solar power plant, Intratrek and its technical partner Chint Electric Co Ltd were awarded the US$113 million tender for the refurbishment of Munyati to boost capacity by 100MW. In a partnership with Bharat Heavy Equipment, Intratrek was also awarded a tender for the 30-megawatt Gairezi hydro power plant (US$112 million). The company also won a tender to refurbish the Harare power plant with Jaguar Overseas Ltd as its technical partner for US$171 million.

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