Sir Wicknell's Intratrek seeks leave for execution of judgment

INTRATREK Zimbabwe, a local private firm fronted by Harare businessman Wicknell Chivayo, has filed a high court application seeking leave for the execution of judgment pending appeal on an order in which a High Court case ruling went in its favour following a contractual dispute with Zimbabwe Power Company (ZPC) relating to the Gwanda Solar project.

High Court Judge justice Tawanda Chitapi, who presided over the case in December last year, ruled at that time that the State Power Utility, ZPC, had by its actions frustrated the implementation of the contract with Intratrek for the construction of the 100 megawatts Gwanda solar farm project.

On Wednesday, Justice Chitapi reserved judgment in the case where Intratrek had sought the execution of his earlier order, but promised to give his position on the application within the earliest possible time given national interest at stake due to power shortages blighting the country.

This comes after Intratrek boss, following conclusion of his criminal prosecution, at the instigation of ZPC and in which he has been absolved of wrongdoing, attempted to remobilise on the Gwanda solar farm site.

However, ZPC insisted that the contractor had failed to perform in time in the first instance and that after his earlier successful contestation of its attempt to cancel the contract, the matter was the subject of an appeal at the High Court against Justice Chitapi's judgement.

The parties had first gone to the courts following a dispute over validity of the contract between the parties when the power utility claimed intratrek had failed to complete precommencement works within stipulated time, hence claimed the contractor violated their contract.

But Justice Chitapi ruled that ZPC had in fact breached terms of the contract and frustrated the project when it instigated the arrest of Intratrek managing director, Chivayo, on trumped up charges of fraud, which resulted in the doctrine of fictional performance coming into play.

In his earlier ruling, the high court judge found ZPC to have grossly abused its rights by involving a third part, the police, in the settling of a civil dispute when clear dispute resolution mechanism provided for in terms of the agreement signed between the contractual partners existed.

Justice Chitapi ruled that given the shortcomings of ZPC, which constrained the contractor from executing his duties, among them pressing malicious criminal charges against Mr Chivayo and failure by the State to provide certain guarantees, which stalled a Chinese loan to ZPC for the project, the contract was still valid and binding as was originally

In the fraud case, ZPC argued that it had paid Intratrek Zimbabwe US$5,1 million, without a bank guarantee, but the contractor had allegedly failed to deliver value, as agreed within the parties' contract, in time.

When the matter was heard at the High Court, before Justice Chitapi, the High Court Judge ruled that ZPC was in fact to blame for Intratrek's failure to perform the agreed works in time and ordered the parties to meet in 60 days to review progress on the project or that ZPC pays us$23 million.

ZPC has declined both and instead, has launched an appeal at the Supreme Court, insisting the High Court erred in its findings and ruling in favour of Intratrek because the contractor failed to deliver value as agreed and in time.

Intratrek legal counsel, Advocate Lewis Uriri, instructed by Wilson Manase of Manase and Manase Legal Practitioners, submitted that the appeal by ZPC against Justice Chitapi's judgment, which was in favour of Intratrek, was unlikely to succeed given the robustness of their application, which no court of appeal would overturn, unless the order was grossly unreasonable that no court acting properly would issue it.

"It is beyond doubt that a declaratory order is not suspended by noting an appeal, when this is known, but one devices means  of undermining an order that ought to be obeyed through the medium of notice of an appeal, knowing or ought to know and by necessary implication do in fact know, that it does not suspend the order, that is a deliberate abuse of the process of the court and a clear stratagem to ensure spanners are thrown into the wheels of justice," Advocate Uriri said in court.

"Leave to execute ought to be granted at the client to legal practitioner scale. The second point that I make is simply this, even relating to the ordinary grounds, for the grounds of leave to execute pending appeal, this is an application that ought to be granted," he said.

Advocate Uriri said while possibility of success on appeal were non-existent, ZPC were acting in a manner consistent with attempts to scuttle the contract, whose validity the court upheld, as evidenced by actions of certain "state actors" whom he said were pushing the power utility to pursue all avenues to recover outstanding funds from Intratrek.

"When one looks at these grounds of appeal and the broader outlook, the national interest at stake, which the court itself related to and the preponderance of equities, which had been adequately dealt with in the affidavits, one is left with no doubt this appeal is no more than a time buying gimmick.

"This more so given that certain State actors have in recent times come out in the public domain to state that regardless of what the court has said, they are going to adopt a particular line. My learned colleague will say the court cannot relate that which appears in the press, let me draw your attention to the State of Hawaii (USA) and others versus Donald J Trump."

In the case, Advocate Uriri stated, the US Supreme Court judge Justice Watson ruled it could not cower into a corner, pull the shutters closed and pretend it has not seen what it has."