aurora
Business Writer
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.
“Considering that the respondent was represented by a competent firm of legal practitioners, it is inconceivable and not in the least probable that it was ignorant of the proper procedure to adopt in the circumstances of this case.
“We therefore come to the unanimous conclusion that the respondent deliberately chose the wrong procedure to shield itself from the glare of a full-fledged trial to hood wink the court aquo and it succeeded.
“The court accordingly sustains the appellant’s objection in limine. That being the case, the impugned judgment of the court aquo cannot stand. The respondent took a dive into the dark and deliberately threw all caution sounded by precedent to the wind.
Justice Gwaunza said this was a case where the court aquo should have expressed its displeasure by dismissing the application with costs,” Justice Gwaunza noted in the ruling this week.
He noted that a reading of the now impugned judgment showed that the High Court had made factual findings complained in the grounds of appeal without hearing viva voce evidence.
These were undoubtedly intractable material disputes of fact incapable of resolution without leading of viva voce evidence.
The case was allegedly riddled with serious material disputes of facts.
“These are allegations and counter allegations as to who is to blame for the alleged breach of contract. There is also the dispute as to whether the contract has expired due to exfluxion of time.
“The factual issues of waiver and non-disclosure were raised and hotly contested, such that they could not be resolved without viva voce evidence,” the Supreme Court judge ruled.
Bongani Ndlovu