Zesa Holdings' breach of contract

THE frustration and futility of it all; no person living in Zimbabwe is happy with the current electricity supply situation.

Not even the most hopeful optimists can think brightly about power cuts that go for up to 18 hours daily without reprieve.

Many people ask about the prospect of suing Zesa Holdings in order to compel it to provide electricity.

Individuals and businesses alike express an intention to claim damages for lost business and revenue.

Prepaid customers talk about suing for the reimbursement of their money held up by Zesa Holdings without delivering the already paid for electricity.

Indeed, legal action against Zesa Holdings is possible.

Nothing prevents it.

It will not be difficult to prove Zesa Holdings' breach of contract by simple application of the principles of the contractual law and get a court order.

However, in practice, it is not simple.

Court orders have to be enforceable, otherwise they are meaningless.

There is a noticeable reluctance and resignation to undertake such an action and perhaps understandably so.

Given the extent and urgency of the crisis, people should be lining up to sue Zesa Holdings in the courts of law daily.

However, they seem to understand the likely futility of it all.

There are times when even the most powerful court orders are ineffective because they are unenforceable. An unenforceable order is called a brutum fulmen judgment.

In simpler terms, it means an empty and noisy threat.

In legal terms, it refers to a court order that cannot be enforced, either because it is impossible or impractical to enforce.

There are various reasons that prevent court orders from being complied with or executed. In some cases, the situation may simply have been overtaken by events and thus will be useless to pursue their execution.

This, for example, may apply in the event of a death or if the object of the order no longer exists

In some cases, the threat or injustice that the order sought to stop may have ceased or may already have occurred, rendering it too late to seek redress.

Given our precarious currency history since the mid-2000s, awards for money for court cases that emanated during the hyperinflationary Zimdollar era became unclaimable as the value of the money was never properly certainable with all the currency changes.

In the past decade, the Zimbabwe currency changed from Zimdollars to bearer cheques and then to agro-bills.

The currency also became quotable in United States dollars and then in bond notes.

More recently, we have the to RTGS$ dollars.

The list is endless. In that case, there may not be an accurate manner in which to execute court orders and obtain the true value of the monetary awards for court cases that emanated under one currency regime, but were resolved in another regime.

Thus, such orders are not enforceable.

The Labour Court case between Delta Beverages vs Kudakwashe Murandu LC/H/126/2013 is one such practical example.

The crisis is compounded by that there is no tangible relief in sight or observable urgency by the responsible authorities to solve it immediately.

The government and Zesa Holdings are at a complete loss on how to solve the crisis. yet they contributed to its making. The load shedding has too many legal and social implications.

This discussion is limited to contractual implications and the effectiveness and practicalities of the available legal remedies.

Can anything tangible be obtained from suing Zesa Holdings for its failure to perform in terms of its contractual obligations?

Zesa Holdings' breach of contract affects both pre-paid and post-paid customers equally because the breach of contract is the same.

In the case of prepaid customers Zesa Holdings is holding onto their money for which they have already paid for the non-existent electricity.

For post-paid customers, regardless that some of them are in arrears, Zesa Holdings is still in breach of contract by failing to provide electricity as agreed.

Breach of contract occurs when one of the parties in a contract fails, refuses or neglects to perform as agreed.

The breach can be purposeful or due to circumstances beyond the parties' control, but results in non-performance nevertheless.

In many ways, Zesa Holdings, politicians, government, consumers and nature colluded and caused the crisis and Zesa Holdings' consequent breach of contract.

The drought is named as the main culprit, but it only helped to unmask the ineptitude, deficiency of planning skills and lack of forward thinking by the country's leaders since independence

Let's say one has successfully sued Zesa Holdings for some specific performance and obtained a court order they may find to be unenforceable as in ordering Zesa Holdings to provide electricity to those disgruntled.

If Zesa Holdings fails to comply, which is more likely in the present circumstances, then what is one to do?

The enforcement of court orders often involves the use of force if there is non-compliance.

The Messenger of Court and the Sheriff of the High Court are authorised to break into premises to enforce court orders by attaching and forcefully removing property if they have to.

In this case it is the generation and provision of electricity that consumers want rather than attachment and seizure of Zesa Holdings' or even the Ministry of Energy's property.

No court can compel Zesa Holdings to turn on the turbines at Kariba or even order it to import electricity in the alternative.

They are not orders courts can realistically make expecting them to be complied with. Even an award for damages would not be fruitful.

The Messenger of Court or Sheriff can technically attach and sell all of Zesa Holdings movable and immovable property, but in reality it is obviously impossible and no court can ever allow that. It is futile.

Simply ordering Zesa Holdings to provide electricity with immediate effect is impossible because it involves more than just Zesa Holdings, but a complex network of confederates like the government, regional and international governments, suppliers and agents all bound up in complex local and international agreements and treaties.

It is an impossible one. The country has thus resigned to its fate and an acceptance that nothing is going happen anytime soon to improve the electricity supply situation, even if armed with every shade of court orders from even the highest courts of the land. So, as usual Zimbabweans are making a plan albeit begrudgingly.