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ZESA v Chivayo case, a close analysis

by Njabulo
13 Sep 2022 at 17:06hrs | Views
(article source NewZimbabwe newspaper:13/09/2022).

In my view, I think Mr Chivayo is the one who is on the wrong side in this case. Therefore that case has to be struck out in whole, not in part.

The reason being that he (Mr Chivayo) entered into a contract with the èlectricity company ( ZESA)which is a quasi autonomous company, but renders a public service, for public utilitarian reasons .

That company represents the government, as it is an emanation of the state, that has delegated authority to perform government duties in Zimbabwe.

As such it owes the public its trust. When that company initiated that project, it intend to meet the needs of the public. That duty being delegated to it by the state.

The public needs to have confidence in the government and its delegated bodies .

This derives from good and efficient services rendered by the government and those delegated bodies.

But, if a delegated body fails to meet the standard expected of it by the public, the blame goes to the government, as the body in question, is an emanation of the state and therefore represents the state.

For that reason, ZESA took the right course of action to sue and get Mr Chivayo prosecuted(for fraud) for breach of contract that it(ZESA) had entered into with his company.

In terms of law, Chivayo's company is a legal person in the eyes of the law.

As such it can be sued and prosecuted.

A contract is legally binding.

Therefore, when the other party to a contract fails to fulfil the obligations in that contract, then the other party to that contract has no choice, but to take reasonable action against the party that breached that contract.

The other party that breached the contract can only have a strong defence,  for example, due to an "Act of God"( no one's fault, eg flood)or forcemajeure (men caused fault eg political mayhem).

But,  Mr Chivayo has no defence for failure to perform his obligation in that contract.

The course of action taken by the other party depends.

For example, the other party can rescind that contract.

The other party may terminate the contract due to or upon realising some form of misrepresentation in the contract entered into(will not go into detail).

In the case of Mr Chivayo, according to the media, ZESA instigated legal action against his company so that he could perform his obligations.

But, still, he failed to do so.

That, that the good will of his company has suffered detrimental effect, is insignificant or is immaterial in as far as the public is concerned, because the public was inconvenienced by his failure to deliver an important service to it.

One would expect him to apologise profoundly to the public for that.

The public expected ZESA to install electricity so that they could live in comfort .

However, they were deliberately deprived of that essential service by Mr Chivayo.

So, ZESA was right to open a case for him to be indicted for fraud because that money belongs to the public and the state.

As such his case is of public interest.

It is trending in Zimbabwe news nowadays, for companies to present tenders to the government or public bodies delegated duties by the government, then get paid the public money, but fail to carry out the work that they have been contracted to do.

That makes the public to be angry with the government.

A good example, is that company contracted to carry out the construction of "Egodini" infrastructure.

That company misrepresented itself to the government/Bulawayo City Council.

It purported to be a reputable company that has all the necessary equipment to carry out that task.

However, to date, it has failed to carry out the work as was agreed in the contract.

The public is angry with BCC/ government.

That is not right.

The public and other stakeholders have been inconvenienced by that company.

Now if that company had to go to the courts to claim that its good will has been tarnished by BCC,would that be right?.

So, Mr Chivayo must stop being selfish and consider that, that project was for the public.

It makes everyone angry to note that some companies just take money from delegated bodies by the government and not perform their contractual duties.

That is not right.

That makes the public angry with the government and delegated bodies, because they want to see those infrastructures being completed as per their expectations.

If you go to that area and ask the people that live there, they will tell you how angry they are with Mr Chivayo for failing to carry out his obligations.

Even myself when l read about that case, l got angry with the guy.

Thus because we all want development in our country.

At the end of the day people turn to blame ZESA/ government for failure to deliver the services which they need.

The state and its delegated bodies have a duty or responsibility to render efficient and effective services to the entire country.

Mr Chivayo's actions therefore amount to a sabotage of the efforts of the government/ZESA.

So, in this case, the goodwill of ZESA/government, is the one that suffered detriment, but not Chivayo's company.

Had his company performed its part of the contract, as was stipulated in the contract, the public in that area would not have lost confidence in ZESA.

Now that is a promised service delivery that never materialised.

The service delivery could have been delivered as planned by the government and its delegated body (ZESA),  "BUT FOR",  Chivayo's company that never materialised.

Even the Egodini project has frustrated a lot of people.

This is my comment as a neutral in this case.

No fear no favour and no prejudice.

Article by Njabulo
libertyatliberty at gmail dot com

Source - Njabulo
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