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Fidelis Munyoro Chief Court Reporter
An attempt by a local private company to sue Zesa Holdings subsidiary, Zimbabwe Electricity Transmission and Distribution Company for $11 million over alleged breach of contract failed in the High Court last week.
Sixth Century had sued ZETDC in 2012 claiming $11 million damages for breach of contract entered for the construction of three sub-stations in Harare. But ZEDTC emerged victorious after Justice November Mtshiya last Wednesday upheld its application for absolution from the instance.
Absolution from the instance is application based on the grounds that a plaintiff’s case is hopelessly weak and not worth the while to place a defendant on his defence at trial. ZETDC was the defendant, while Sixth Century was listed as the applicant in the matter. Advocate Thabani Mpofu instructed by Mr Vote Muza of Muza and Nyapadi law firm argued the matter for ZETDC.
Initially, Mr Kelvin Musimwa of Musimwa and Associates appeared for Sixth Century, but renounced agency at the last minute.
The lawyer’s conduct raised the ire of Justice Mtshiya, who questioned Mr Musimwa’s deportment of abandoning his client without having given reasonable notice of his intention to renounce agency.
Sixth Century took ZETDC to court claiming that it breached a contract entered for the construction of the three 33/ 11Kv sub-stations in the Harare suburbs of Luna, Glen Norah and Mufakose.
But in his application for absolution from the instance, Adv Mpofu moved for the withdrawal of the Sixth Century claim.
He told Justice Mtshiya that evidence in the dispute showed that the procuring entity in the matter was Zimbabwe Electricity Supply Authority before it was unbundled.
A Sixth Century witness that was brought to testify in the civil suit hearing when it started, conceded in answering a question posed by Justice Mtshiya that the old Zesa and ZETDC were distinct and separate entities.
“The witness testified that ZESA had been unbundled and five units created out of it,” Adv Mpofu told the judge.
“It is clear to plaintiff (Sixth Century) that ZETDC did not exist in 2002 when the contract was concluded.
“The declaration upon which the claim is founded cannot be sustained and there is, therefore, nothing for defendant (ZEDTC) to refute.”
To this end, Adv Mpofu argued that Sixth Century could not invite the court to engage in divination and the claim should have been withdrawn.
In its claim, Sixth Century argued that in 2010, ZETDC gave its sister company permission to complete the project which had been suspended in 2006, in breach of the contract.
The firm said installation was suspended in 2006 due to financial constraints and the parties mutually agreed that construction would start when the situation had improved.
The firm also claimed it had agreed to suspend construction, which started in 2004, after it became clear ZETDC was facing serious financial problems during the hyper-inflationary era.
Sixth Century said it then suffered huge damages after ZETDC breached the contract. The damages comprised $787 000 for loss of potential profit and retention, $10,1 million for the cost incurred for salaries of key staff, non-productive staff, plant and equipment hiring, site buildings and offices, demobilisation and tax charges.
Online Reporter