HARARE – The High Court has ordered the Zimbabwe Power Company (ZPC) to meet with directors of Intratrek Zimbabwe to discuss how the latter can complete the construction of a 100-megawatt solar project in Gwanda after ruling that a contract entered between the two was still valid.

Justice Tawanda Chitapi, at the Harare High Court, accused ZPC of playing “merry dances” in their boardroom “instead of project sites” after causing the arrest of Intratrek director Wicknell Chivayo and then attempting to cancel the company’s contract.

Chitapi’s judgment, delivered on Monday, followed an application by Intratrek for specific performance, as the company seeks to compel ZPC to see the project to fruition.

ZPC has gone to the Supreme Court to contest an earlier High Court judgement that found the contract to be still valid, despite alleged breaches by Intratrek.

Justice Chitapi compared the Supreme Court appeal to “clutching at straws”, as he threw out ZPC’s plea to stay judgment pending their appeal.

Justice Chitapi said ZPC would suffer no irreparable harm if he granted Intratrek leave to execute pending appeal, as “what is to be executed is the contract by engagement of the parties”.

The judge added: “In the result, I dispose of the application as follows: leave to execute the judgment of this court HH 818/18 is granted and the said judgment shall be given full effect notwithstanding the appeal noted by the respondent to the Supreme Court under case number SC2/19 on January 7, 2019.

“It has already been observed that the subject matter of the contract is of national importance. It is of public interest. The public wants electricity for use at home and in industries. The public is not interested in bickering for self-interest and egos on the part of State actors and their contractors.

“The project was granted national project status. The electricity envisaged to be produced upon successful completion of the project is not for the consumption of applicant and respondent, but benefits the whole nation since the power will be fed into the national grid…

“The motive for appeal is improper. It is disgraceful that national projects are stalled by contracting parties having merry dances in boardrooms instead of project sites and seeing the project to fruition.”

Chivayo argued that his arrest, caused by ZPC, had frustrated his ability to fulfill the terms of the contract after ZPC advanced Intratrek US$5,6 million for pre-commencement works.

ZPC has denied causing Chivayo’s arrest but Justice Chitapi said in a criminal case which has since collapsed, ZPC’s managing director was the complainant and as such “an appeal court by any imagination cannot find otherwise”.

Intratrek also said Zimbabwe’s legacy debts to the project’s financier, China Eximbank, had frustrated efforts to secure funding, leaving the Zimbabwe government exposed to the tune of US$172 million as the guarantor.

ZPC, the judge said, wanted to frustrate performance of the contract on realising that China Eximbank would not be providing financing, which would place the burden on financing the project back on the state-owned power utility.

“Whether by judgment or wrong advice, (ZPC) has let the cat out of the bag. It is trying to clutch at straws to avoid potential liability payment,” Justice Chitapi said.

The judge did not rule on ZPC’s contention that it had not got value envisaged in the contract after the US$5,6 million pre-commencement works payment, advising the company to resolve the matter in terms of the dispute resolution mechanisms in the contract.