Intratrek Zimbabwe (Pvt) Ltd and its managing director Wicknell Chivayo have succeeded in the US$22 million damages claim for breach and repudiation of contract against Zimbabwe Power Company (ZPC), a subsidiary of ZESA Holdings, after a fully contested trial.
Intratrek had also demanded US$3 million in compensation for expenses it had incurred between 2013 and 2018 funding the project.
High Court judge Justice Siyabona Paul Musithu upheld Chivayo’s application.
The ruling was handed down Wednesday, 11 January, by Justice Priscilla Munangati-Munongwa. Reads part of the judgment:
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Resultantly it is ordered that: The procurement contract for the Engineering, Procurement and Construction (EPC Contract) of the 100MW Gwanda Solar Project (ZPC 304/2015) between the plaintiff and the defendant as amended is valid and binding between them.
Consequent to the declaration of the validity of the EPC Contract, an order for specific performance of the said contract is hereby granted.
The defendant’s (ZPC) claim in re-convention is hereby dismissed with costs.
The defendant shall pay the plaintiff’s costs of suit in the claim in convention.
The ruling brings to an end the legal dispute that has been between the parties since 2015.
In his ruling, Justice Musithu said the contractor won the project in an open tender having gone through a fair and thorough process sanctioned by the then State Procurement Board.
The agreement between ZPC and Intratrek was signed subsequent to a successful tender bid, for the engineering, procurement, and construction of a 1 000MW Gwanda Solar Power Station Project.
Intratrek was awarded as the lowest compliant bidder to specification out of 6 bidders at a cost of US$173 million.
In his judgement, the judge criticised ZPC for trying to torment its legal contractor who won the project in an open tender. He said:
The plaintiff maintained that it was required under the contract to secure funding for the entire project through a debt financing arrangement.
The plaintiff was expected to engage in a robust and expensive process of engaging international banks and project financial institutions. It incurred expenses in the sum of US$3 000 000 from 2013 to 2018.
Further, the contract itself was of significant value and if it was to be implemented, the plaintiff expected to realise a return on investment of US$22 000 000.
As a result of the breach, the plaintiff had therefore suffered a loss of profit.
Intratrek was represented by Advocate Lewis Uriri and Advocate Taona Nyamakura instructed by Manase & Manase Legal Practitioners while ZPC was represented by Advocate Daniel Tivadar instructed by Muvingi and Mugadza Law Firm