The Herald (Zimbabwe) - - Front Page - Busi­ness Re­porter

INTRATREK Zim­babwe, which is en­tan­gled in con­trac­tual dis­pute with Zim­babwe Power Com­pany (ZPC) over the Gwanda so­lar plant, has filed sub­mis­sions to the High Court seek­ing an or­der com­pelling ZPC to al­low it to ful­fil terms of the project agree­ment or be paid $25 mil­lion dam­ages for breach of con­tract.

This comes af­ter a dis­pute arose re­gard­ing ful­fil­ment of terms of the con­tract, in­clud­ing stage-based pay­ments due for part of work it has done, with the State power util­ity, how­ever, claim­ing Intratrek failed to im­ple­ment the 100 megawatt Gwanda so­lar project within agreed time­frames. Intratrek dis­putes this. The firm claims it had fic­tion­ally ful­filled terms of the con­tract and that chal­lenges that de­layed project im­ple­men­ta­tion as orig­i­nally en­vis­aged, were caused by ZPC, which also al­legedly frus­trated al­ter­na­tive ef­forts to ex­pe­dite the power project.

The com­pany, which part­nered multi-bil­lion dol­lar as­set firm and Shang­hai Stock Ex­change listed CHiNT Elec­tric for the Gwanda project, sub­mit­ted that it was clear from the out­set ZPC had no in­ten­tion to im­ple­ment the con­tract in good faith, as demon­strated by its fail­ure to prove what it had done to fa­cil­i­tate project im­ple­men­ta­tion.

Apart from re­fus­ing to make fur­ther pay­ments for the works Intratrek has done on the Gwanda so­lar project site, other than ad­vance pay­ments it made ear­lier, ZPC has al­legedly threat­ened to can­cel the con­tract cit­ing de­layed im­ple­men­ta­tion.

In its heads of ar­gu­ments filed be­fore the High Court last month un­der case 8159 /2018, Intratrek said ZPC was now seek­ing to set up a breach of con­tract sce­nario be­tween the par­ties to avoid mak­ing pay­ments, which it said were now due to it.

Intratrek wants ZPC held to its bar­gain and per­form its part or al­ter­na­tively pay dam­ages ($25m). The mat­ter is likely to be set for hear­ing on No­vem­ber 16, 2018.

Be­fore the dis­pute, the par­ties signed an ad­den­dum to the main con­tract in Septem­ber 2017 for ZPC to pay sub-con­trac­tors of Intratrek di­rectly in an ef­fort to pace up the project, a sub­pact the for­mer al­legedly vi­o­lated and fur­ther threat­ened to can­cel the whole con­tract al­leg­ing con­tract vi­o­la­tion through project de­lays.

In the heads of ar­gu­ment sub­mit­ted to the High Court, top Harare lawyer Ad­vo­cate Lewis Uriri said in the Gov­ern­ment pro­cure­ment con­text, the rem­edy of spe­cific per­for­mance was avail­able against both the or­gan of State and the con­trac­tor.

He said that a court of law could or­der the or­gan of State to pay the con­trac­tor, not in­ter­fere with the work of the con­trac­tor or de­lay the con­trac­tor in the per­for­mance of its work.

“This ac­cord­ingly is a mo­tion for spe­cific per­for­mance of the agree­ment be­tween the par­ties. In the al­ter­na­tive, the ap­pli­cant seeks dam­ages that were within rea­son­able con­tem­pla­tion of the par­ties at the time of con­tract­ing and the quan­tum of which is com­mon cause or has not

been se­ri­ously dis­puted. The amounts to be paid in ei­ther case are largely con­trac­tual sums that are eas­ily es­tab­lished on pa­pers,” Intratrek said.

“The breach is self-ev­i­dent on the pa­pers. The ap­pli­cant is en­ti­tled to hold the re­spon­dent to con­tract, al­ter­na­tively to seek dam­ages. This is set­tled and trite po­si­tion of the law.”

How­ever, apart from claims of al­leged breach of con­tract by ei­ther part, ZPC has also chal­lenged the law­suit by Intratrek at the High Court say­ing the case brought against it should have been brought to court by way of ac­tion in­stead of no­tice of mo­tion.

But Intratrek shot down the claims as base­less and de­signed to de­lay res­o­lu­tion of the case.

“The ob­jec­tion is with­out merit. It is cos­metic. It is pred­i­cated on a lack of ap­pre­ci­a­tion of the fact that on the pa­pers the facta probanda is ei­ther com­mon cause or can­not be se­ri­ously dis­puted.”

Intratrek ar­gued that there were no ma­te­rial dis­putes of fact in­ca­pable of res­o­lu­tion on the pa­pers by the court, adding the mat­ter ad­vanced and pleaded by it was clear.

“In view of the fore­go­ing, it is sub­mit­ted that there is noth­ing that stops this court from de­cid­ing the present mat­ter on pa­pers. The re­spon­dent (ZPC) has not proved and can­not prove that there is ma­te­rial dis­pute of fact in­ca­pable of res­o­lu­tion on pa­pers.

“Even if it were to be as­sumed that there are ma­te­rial dis­putes of fact, there is noth­ing that pre­cludes this court from em­ploy­ing the ro­bust ap­proach in re­solv­ing the mat­ter.”

Intratrek sub­mit­ted that it had per­formed part of the pre-com­mence­ment works that en­ti­tled the com­pany to pay­ment, which pay­ment was stage-based in terms of the con­tract.

“The par­ties are agreed as to the ex­tent of per­for­mance reached by the ap­pli­cant. More par­tic­u­larly the re­spon­dent never de­nies that the ap­pli­cant sub­mit­ted a re­port show­ing that it had per­formed 82 per­cent of the geotech­ni­cal sur­vey.

ZPC does also not deny the fact that Intratrek had com­pleted 33 per­cent of site fenc­ing and that the con­trac­tor was due to be paid an amount of $120 333,34, al­though the whole job was val­ued at $181 277,58.

The con­trac­tor had also done part of ground clear­ance, which ought to be paid.

Intratrek also dis­missed claims by ZPC that there were two con­tracts gov­ern­ing the agree­ment be­tween the par­ties, ar­gu­ing at­tempts to rely on pro­vi­sions of the ad­den­dum of Septem­ber 21, 2017 to vary terms of the orig­i­nal agree­ment was a mis­in­ter­pre­ta­tion of the con­tract, as the ad­den­dum only sup­ple­mented the orig­i­nal con­tract.

The com­pany said rea­sons cited by ZPC for re­fus­ing to pay for works done at spe­cific stages con­sisted of im­plau­si­ble facts, bald and un­cred­it­wor­thy de­nials and un­ten­able dis­putes of fact.

“It is not in dis­pute that the ap­pli­cant’s (Intratrek) sub-con­trac­tors per­formed their obli­ga­tions in terms of ad­den­dum num­ber one. In par­tic­u­lar, geo-tech­ni­cal sur­vey and a fi­nal re­port were sub­mit­ted to (ZPC) in or around July 2018.

“The re­spon­dent ac­cepted the re­port and ac­knowl­edged its find­ings. In re­spect of ground clear­ance, at least 85 hectares of land was cleared and de-stubbed. The first phase of fenc­ing was com­pleted in terms of pro­vi­sions of the amended sched­ule 11 to the EPC con­tract.

“It is not con­tested that upon pre­sen­ta­tion of the in­voices by (Intratrek) for pay­ment by re­spon­dent (ZPC), the re­spon­dent flatly re­fused to pay the same cit­ing rea­sons not founded in the con­tract,” Intratrek said.

The firm said the fore­go­ing showed that a case for spe­cific per­for­mance was clearly made out, as ZPC could not prove ma­te­rial dis­pute of facts to deny the court from re­solv­ing the dis­pute be­tween the par­ties.

A so­lar farm. ZPC has al­legedly threat­ened to can­cel its con­tract with Itra­trek cit­ing de­layed im­ple­men­ta­tion of the Gwanda so­lar project

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