HARARE – Wicknell Chivayo’s criminal trial for allegedly defrauding the Zimbabwe Power Company (ZPC) of $5,6 million faces collapse after a High Court judge on Thursday ruled that ZPC has breached its contract with the Harare businessman.
Justice Tawanda Chitapi of the Harare High Court absolved Intratrek, a company in which Chivayo is a director, of causing delays in the implementation of the $200 million Gwanda solar power plant, binding ZPC to continue work with Intratek as the contract remains valid.
Zesa Holdings group chief executive Josh Chifamba in April this year told the Parliamentary Portfolio Committee on Mines and Energy that ZPC would terminate Intratrek’s contract.
“What’s clear about today’s date, which is the 23rd (of April), is the date to terminate the contract. This is the date that we now review and say for what we paid, what was been done?”
Chivayo was subsequently arrested and charged with fraud and money laundering. It was alleged that he blew $5,6 million paid by ZPC for pre-commencement works in transactions that were not connected to the power plant.
Despite little activity at the site of the power plant which is set to add 100MW to the national power grid when fully functional, Chivayo has always insisted that he was on course to fulfill terms of his contract.
In the middle of his trial at the Harare Magistrates Court, Chivayo, through his lawyer Advocate Lewis Uriri, decided to sue ZPC at the High Court for breach of contract.
On Thursday, Justice Chitapi made a ruling which effectively means the dispute is purely a contractual issue between ZPC and Intratrek – and not criminal.
“It is noted in passing that section 49 of the Constitution provides that, ‘No person may be imprisoned merely on the ground of inability to fulfil a contractual obligation. The sanctity of contracts therefore enjoys constitutional protection’,” the judge said.
He ordered ZPC to engage Intratrek and discuss the project’s implementation, or alternatively, pay $25 million damages by February 3, 2019.
Former Energy Minister Samuel Undenge was arrested over the Chivayo tender, accused of ordering ZPC executives to release the $5,6 million payment without the security of a bank guarantee.
Undenge was acquitted earlier this week, a magistrate ruling that no evidence had been produced tying him to the alleged crime of criminal abuse of office.
