NPA to think over Chivayo trial

The legal team acting for Intratrek Zimbabwe and its director Wicknell Chivayo says the National Prosecuting Authority risks civil liability and criminal abuse of office charges for reviving criminal charges against their clients over the Gwanda Solar Project. The prosecution seeks to prosecute Chivayo and his company on charges of fraud, which the Zimbabwe Power Company paid for various pre-commencement works for the 100MW Gwanda solar project.

But Chivayo, who had put up a tough legal team of three top Advocates Lewis Uriri, Sylvester Hashiti and Taona Nyamakura, warned the prosecution to think over a letter which the instructing lawyer Mr Wilson Manase wrote in relation to the charges last month. Cabinet approved last year the revised implementation plan for the 100 megawatt (MW) Gwanda solar project in a manner that required the parties enter into an amended and restated EPC contract. This entailed the contract would set out new time-frames for implementation, revised contract price and technical specifications which parties required to negotiate, which has since been done and now awaiting signatures by the parties.

The lawyers described the revival of the charges against their client as malicious in the face of uncontroverted evidence which proves that the entire amount of US$5 111 224 paid by ZPC was utilised in accordance with the requirements of the Engineering Procurement and Construction (EPC) contract.

In his letter to NPA, Mr Manase also attached a report on the valuation of the pre-commencement works which was jointly carried out and ratified by ZPC, Intratrek and Chivayo on July 13, 2020.

Mr Manase said the evaluation report confirmed that his client not only discharged their contractual mandate in full but went further to utilise their own resources to complete some of the required works.

This, Mr Manase explained that going by ZPC's own assessment at the site in Gwanda carried out in July 2020, Intratrek has performed the pre-commencement works to specification and is in fact owed close to US$700,000 by the power company.

He said the matter is purely civil, which does not deserve the adjudication of "our criminal justice system".

"Conversely, we implore your office to avoid scenarios of civil liability for unlawful prosecution and criminal abuse of office that prior to the placement of our client on remand you seriously consider the entirety of our submissions," said Mr Manase, responding to the NPA summons served on Chivayo to appear in court early this month.

"We equally hope that you shall be guided accordingly and render the need for any legal process at our clients' disposal to their civil and constitutional rights being unnecessary to exercise."

The issues raised by Chivayo's legal team prompted the prosecution led by Mr Tafara Chirambira and Mrs Tendai Shonhai to request for postponement to October 24 to attend to the issues before the trial opens

Mr Manase, in his letter, also highlighted the importance of the Gwanda Solar project to the nation as pronounced by the courts, which he also said dovetailed and "anchors the objectives under the National Development Strategy 1 and 2, which are in the economic blueprints of the Second Republic".

"We regrettably find the spurious instigation of criminal proceedings against our clients as negating Government's efforts to develop the energy infrastructure of the country, in spite of its irrefutable importance to the economy," he said.

"It would be indeed a sad day for both justice and economy of Zimbabwe to allow for untenable and fruitless prosecution of entities that should otherwise be advancing the national interest of the country, without sound or legal basis to do so."

Meanwhile, the Intratrek civil trial begins today in the High Court with the energy company for specific performance and US$25 million in damages, after his criminal trial last week was deferred to consider the contents of the letter.

Justice Tawanda Chitapi will preside over the civil trial for second time after his ruling on the same matter in December 2018.

The civil trial at the higher court was necessitated by the Supreme Court's ruling last year on a technicality that Chivayo had used a wrong procedure when he first he sued ZPC in the High Court.

In 2018, the High Court ruled that the parties should not waste precious time "merry dancing in boardrooms and courts" while the whole country faced a crippling power crisis.

He made the remarks while ruling on a contractual dispute between Zesa and Intratrek over delays to the project, which Zesa lost, pointed out that electricity was not generated in courts and board rooms, but at power stations and urged the feuding parties to dialogue and stop being "dilatory" in their approach.

Chivayo was summonsed back to court on criminal charges following the Supreme Court's decision to reverse his acquittal by the High Court, which was contested by the National Prosecuting Authority.

The prosecution had appealed against the High Court decision absolving Chivayo and his company of any criminal liability in the botched multimillion dollar deal with the power company.

High Court judge Justice Owen Tagu cleared him of all his charges, including money laundering, in a July 2018 judgment saying they were civil matters, ruling that the decision of the trial court in dismissing Chivayo's application for exception in November 2018 was defective as the facts could not sustain a criminal suit.

He said allowing the businessman's prosecution or his conviction would amount to violation of the Constitution, which provides protection upon the doctrine of sanctity of contracts.

His judgment underscored that criminal sanctions would not apply in inherently civil cases. Chivayo had in the lower court attempted to quash the charges through an application for exception, but this was rejected.