Harare businessman Wicknell Chivhayo has hit back at Zimbabwe Power Company and slapped the power utility entity with a $25 million lawsuit for maliciously causing his arrest on criminal charges.
Chivayo was admitted to bail by the High Court with Justice Chikowero finding that the state case was weak and the case complained of amounted to a civil offence and not criminal.
Chivhayo lodged a court application for specific performance in the High Court under case number 8159/2018 through Advocate Lewis Uriri instructed by Wilson Manase.
Chivayo’s application is on behalf of Intratek Zimbabwe Private Limited, a company in which he is managing director.
He contends in his affidavit that in 2013 Intratek participated in an open tender together with 6 other competing companies and the company was duly awarded a tender to construct the solar power station at Gwanda by the Procurement Regulatory Authority of Zimbabwe formerly known as the State Procurement Board.
Consequent to the tender award Chivhayo adds he entered into an Engineering, Procurement and Construction (EPC) contract with Zimbabwe Power Company Private Limited in October 2015.
He further avers that ZPC frustrated Intratek in satisfying conditions precedent therefore rendering it difficult to proceed as agreed.
Chivayo further charges saying that ZPC’s failure to address delays in ensuring pre-commencement works were completed within the scheduled time and that the actual project commenced in time resulted in a further agreement to resolve the issue.
However, according to Chivayo, ZPC then framed spurious and unsubstantiated charges of fraud and corruption against him on 12 December 2017.
These charges allegedly stalled the implementation of the contract.
He contends that the institution of the baseless criminal charges amounted to a pre emptive indication that he was unable to perform the contractual obligations on the due date notwithstanding the fact that they had amended the terms of EPC contract to deal with the delays.
He goes on to argue that ZPC did not in the circumstances have legal ground for alleging failure by claimant to carry out contractual obligation.
Chivayo begs an order of the court against ZPC for the sum of $25 million arising from prejudice suffered by ZEC’s breach of the terms of the EPC contract.
The damages are broken down as follows; $15 million being damages for loss of profit from contractual undertaking valued at an EPC value of $173 million, $5 million arising from costs engaged in syndicating Chinyowa electric and sourcing of project financing from China Eximbank and other credit institutions and $5 million being damages arising from the reputational damage caused by the applicant by wantonly frustrating the contract and publishing false and malicious allegations against him tarnishing his image and leading to certain business undertakings being terminated.
Chivayo’s criminal trial proceedings will continue at Rotten Row Magistrates Court on the 18th of this month.