– Business Weekly
The Supreme Court has quashed a 2019 High Court judgment, which validated the contract between Intratrek Zimbabwe and Zimbabwe Power Company (ZPC) for the multi-million dollar Gwanda solar project.
Intratrek had won a High Court judgment delivered by Justice Tendai Chitapi who ruled that the contract, which ZPC had threatened to terminate over delays on contractual targets, was valid, extant and enforceable.
In the High Court order, Intratrek had sought permission to complete project pre-commencement works and the period for this to be extended by 180 days or alternatively be paid damages to the sum of US$25 million.
This followed a raging dispute which erupted regarding who the fault party was for delays to completion of the pre-commencement works after the parties had signed a US$173 million contract in 2015.
Following the dispute, Supreme Court Judge Justice Gwaunza, said Intratrek avoided full trial in the face of glaring material facts of dispute, giving the impression it had something to hide, which a full trial would unravel.
The Supreme Court judge found that the High Court had erred in asserting that there were no material disputes of facts between the feuding parties that could proceed by way of a court application procedure.
It also argued that the High Court erred in failing to deal with issues Intratrek did not disclose regarding the entirety of the parties’ contract, which prevented the court from fully adjudicating the matter.
“The court aquo erred in its construction of clause 5 of the parties’ contract relating to the fulfilment (or otherwise) of the conditions precedent. The court aquo erred in holding that the appellant tacitly waived express terms of the contract relating to the fulfilment of the (contractual) conditions precedent (for Gwanda solar project),”
Justice Gwaunza noted.
The Supreme Court Justice opined that it was clear that the disputed matter could not be resolved fully without going to a full trial to determine the merits on the basis of viva voce evidence by both the parties.
The latest ruling by the Supreme Court maligned the motion court Intratrek used to avert planned action by ZPC to cancel the Gwanda contract over alleged failure by Intratrek to deliver on agreed targets in time.
The Justice Gwaunza said Intratrek Zimbabwe, the project contractor and appellant in the earlier High Court case, should have brought the case to court by way of summons because of material dispute of facts.
According to the Supreme Court, motion proceedings are for quickly disposing of matters where there are no material disputes of fact or where such disputes can easily be resolved on paper without viva voce evidence.