The highly publicised case in which flamboyant businessman and Intratrek Zimbabwe director Wicknell Chivayo is facing fraud charges emanating from the manner he handled the 100 megawatt Gwanda solar project that he was contracted by the Zimbabwe Power Company (ZPC) has taken a dramatic twist.
The matter seems to be crumbling like a house of cards as the supposed complainant ZPC distanced themselves from any involvement in causing the businessman’s arrest and subsequent prosecution.
The Harare magistrate court had heard that Chivayo received $5 million advance payment for the project from ZPC without a bank guarantee.
However, in their heads of arguments filed at the High Court last week, Intratrek turned the screws on ZPC and alleged that they were in fact the ones in breach of contract by wantonly causing delays and impediments to the implementation of the solar project.
In their opposing affidavit to Intratrek’s High Court application, ZPC interestingly denied involvement in causing the arrest of Chivayo- technically meaning there is no complainant in the Gwanda solar project case.
Read part of the affidavit: “It is important to note that the allegations that respondent caused the arrest of the applicant’s managing director (Chivayo) is patently false and should be disregarded by this honourable court. As highlighted in the respondent’s notice of opposition, at no material time did it file charges against the applicant’s managing director.
“Despite it being challenged to produce evidence that the charges were filed by the respondent, the applicant has not adduced such evidence.”
ZPC’s submission to the High Court is mind-boggling as to why the entity which Chivayo is said to have defrauded is absolving itself from having any hand in causing Chivayo’s arrest in August.
Law experts submitted that this development is likely to see the matter being relegated to a purely civil case.
“What boggles the mind is the party that we are made to believe was prejudiced has stated in the court of law that they did no file any charges against Chivayo or his company.This therefore make the case null and void and renders it to a purely civil matter.The question is who is the complainant?,” said a law expert who preferred anonymity.
Despite of ZPC’s submission to the High Court, it is the same company that since threatened to cancel the $173 million engineering procurement and construction (EPC) contract signed between the parties in October 2016 for construction of the Gwanda solar plant, alleging breach of contract by Chivayo’s Intratrek.
Chivayo won the tender that was approved by the then State Procurement Board, now Procurement Regulatory Authority of Zimbabwe.
ZPC then alleged that Intratrek failed to perform its obligations (condition precedent) as outlined in the contract, specifically completion of specific works within the agreed time-frames.
In its counter-allegation, Intratrek instead blames ZPC for causing delays to the implementation of the project through its failure to obtain an environmental impact assessment certificate and fraud charges it allegedly instituted against Chivayo in December 2017, alleging fraud and corruption in the execution of the Gwanda solar plant project.
Intratrek claims the conduct by ZPC allegedly stalled progress in the implementation of the Gwanda solar project.
Intratrek Zimbabwe had partnered $33 billion asset firm and Shanghai Stock Exchange-listed CHiNT Electric Co to undertake the multimillion dollar solar project.
The High Court is also set to determine the dispute over outstanding payments for works done by Intratrek, which the company claims were due from further works under the conditions precedent, having allegedly extinguished the exposure to ZPC’s, demands which ZPC has declined to honour.
But ZPC has insisted that Intratrek cannot be entitled to make claims for payments as the power utility was supposed to make directly to sub-contractors to expedite the project, saying the value of outstanding works still stands at $1,8 million, a position it also stated in July this year.
Shooting its own feet, ZPC admitted then that the value earned from works undertaken, which it indicated entailed a geo-tech survey, topography survey, fencing and ground clearance and feasibility report was in the order of $2,012 million. This left the utility’s outstanding exposure in July at $1,8 million.
But Intratrek has since submitted to the High Court that from that point, July 2018, it then had performed further works that fully extinguished ZPC’s $5 million exposure to a point it was now entitled to further payment, which was stage-based in terms of the contract.
The High Court has set down the matter for hearing on November 26.