Wicknell Chivayo has lost the Supreme Court case on the multimillion-dollar Gwanda solar project tender he had been granted by the ZESA subsidiary, the Zimbabwe Power Company (ZPC).
The ruling overturns a 2019 High Court judgment that observed that prohibited ZPC from cancelling the contract and suing to recover over US$5 million it had already paid to Chivayo’s company.
High Court judge Justice Tawanda Chitapi ignored the fact that Chivayo’s Intratek had apparently breached its contract with the ZESA subsidiary.
ZPC then appealed against the ruling arguing that the breach of the contract had automatically resulted in the collapse of the deal.
In their ruling on Monday, Supreme Court judges Francis Bere, Elizabeth Gwaunza and Chinembiri Bhunu said Justice Chitapi erred in not finding that there was a material dispute of facts, following which he should have dismissed Intratrek’s application. The learned judges said:
_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 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._
Chivayo’s lawyers had argued in the Supreme Court that he had, after Justice Chitapi’s ruling, completed pre-commencement works and was in the middle of fulfilling his side of the contract.
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