Chivayo fights for energy deals

LAWYERS representing controversial businessman Wicknell Chivayo have taken steps to try to stop the Zimbabwe Power Company (ZPC) from cancelling multimillion-dollar energy deals awarded to his Intratek firm following pressure from the holding company, Zimbabwe Electricity Supply Authority (Zesa) board.


ELIAS MAMBO

Chivayo, a convicted fraudster, is a director of Intratek which was awarded tenders worth US$400 million by ZPC. Zimbabwe is embarking on a number of power-generation projects which have attracted controversy after it emerged they were inflated by more than US$500 million raising suspicions that Zesa senior managers and top government officials could have corruptly benefitted through price escalations.

ZPC wants to cancel Chivayo’s deals as its internal legal advisors have warned the power company could have badly damaged its reputation by awarding the multi-million-dollar tenders to a dubious company whose directors are ex-convicts and drug traffickers.

A legal opinion written to the Zesa board by the group’s legal advisor and company secretary Saidi Sangula in April raised serious concerns about the damage the shady tenders could have caused to the integrity of the company.

According to the documents seen by the Zimbabwe Independent, the Zesa legal department raised alarm over Chivayo’s conviction for fraud, validity of his appointment to the Intratrek board and his failure to disclose that he had a criminal record, among many other issues.

Zesa hired lawyers Thabani Mpofu and Wilson Manase to give their opinion on the matter resulting in the attorneys arguing that Chivayo’s conviction is a matter under the courts and therefore cannot be used to cancel his tenders.

Ironically, Mpofu and Manase are also representing Chivayo in a case where he is fighting to have his 2005 conviction on money-laundering quashed by the Supreme Court. Chivayo served the full three year term.

“I am required to provide an opinion on the validity of the agreement concluded between the consultant and an entity known as Intratrek ZW Pvt Ltd and as to whether any basis for its cancellation exists,” wrote Mpofu.

“I have come to the following conclusion: there is no chance on the law and the facts that the contract in issue may be invalid, at least as (the)matter stands.

“The provisions of the law which have been observed upon by the secretary are possibly constitutionally invalid and if challenged may not pass muster.

“The contract cannot be cancelled without any serious consequences being brought to bear upon consultant. If consultant is to cancel it should be prepared to pay both contractual and delictual damages.”

Mpofu also states that: “In issue is one of the shareholders and director a Mr Chivayo. It is common cause that he was convicted of fraud and such conviction has not been upset. He has done time arising out of that conviction.

“The correctness of the conviction is, however, a matter which is presently before the courts. Supreme court record SC 253-05 shows that Chivayo appealed the conviction.”

Documents seen by the Independent reveal that the appeal has not been heard “owing to the fact that there is no proper record.”

“Questions have arisen as to whether Chivayo’s conviction considered, the contract concluded between consultant and Intratrek has any legal validity or should be cancelled.Consultant cannot cancel the contract on the basis of a conviction that may be upset. It is not clear to me why Chivayo has not sought his acquittal by now,” Mpofu writes.

He also notes that “the consultant cannot call Chivayo a convict without being able to prove that assertion in a court of law.”
Mpofu also says that the tender documents say nothing about the issue of disclosure.

“Even if they did say something about the issue of disclosure we still cannot run away from the fact that the conviction is presently on appeal,” Mpofu says.

Last week this paper reported that ZPC bosses are stepping up efforts to cancel Chivayo’s murky multi-million-dollar deals which have caused uproar at the company and in public.

The power-generating firm also wants to cancel the US$5 million advance payment irregularly deposited into Intratek’s account for the US$200 million Gwanda solar project amid indications Energy minister Samuel Undenge is under fire for sleeping on the job, ignoring the irregularities or facilitating the corrupt payment.

Sangula had argued that Chivayo’s tender could be cancelled.

“Section 173 of the Companies Act provides for the disqualification for the appointment as director: Any of the following persons shall be disqualified from being appointed a director of a company — a body corporate, a minor, except with the leave of the court, any person who has at any time been adjudged or otherwise declared insolvent of bankrupt under the law in force in Zimbabwe,” Sangula argued.

“Save with the leave of the court, any person who has at any time been convicted, whether in “Zimbabwe or elsewhere, of theft, fraud, forgery or uttering a forged document or perjury and has been sentenced therefore to serve a term of imprisonment without the option of a fine or to a fine exceeding level five.”

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13 Comments

  1. Rusticrealist

    ZACC must step in and interrogate why ZPC can pay a whopping deposit of $5million to Intratec yet consistently fail to pay Makomo Resources for the supply of coal for power generation in Hwange.

  2. Medion Kasvatutsa

    It is surprising that Zesa is struggling to pay its creditors but is opting to waste money paying
    Chivhayo on dubious deals. Zesa claims to be implementing cost cutting measures including not paying their workers the 2012 CBA agreed salary but has millions to pay for deals that will never be implemented. This is very surprising. ZACC should step in and stop this nonsense.

  3. Please enlighten me here,I dont know.So If you are an ex convict you are not eligeble for tenders or any business deals?

    1. Ex cons arent allowed to be directors of companies I think. You can do all the deals you want to, but I don’t think you can be on the papers of a company as a director.

    2. Save with the leave of the court, any person who has at any time been convicted, whether in “Zimbabwe or elsewhere, of theft, fraud, forgery or uttering a forged document or perjury and has been sentenced therefore to serve a term of imprisonment without the option of a fine or to a fine exceeding level five.”

      1. Can you explain in simple terms please.not understanding it.

  4. This is a shoddy deal, to say the least. Pakapananwa mari apa, ikadyiwa big time. This is Corruption par excellence. Dzimwe statement dzema lawyer kuitira kuti vamboidyewo mari yachivhayo nekuti madhiri akavharwa hapachina lumo.

  5. Ladislous GOVERE

    Why cancellation of a tender.Leave Chivayo alone when they awarded the tender all due procedures were followed,

  6. the first question one has to ask is
    ‘Zesa hired lawyers Thabani Mpofu and Wilson Manase to give their opinion on the matter resulting in the attorneys arguing that Chivayo’s conviction is a matter under the courts and therefore cannot be used to cancel his tenders.

    Ironically, Mpofu and Manase are also representing Chivayo in a case where he is fighting to have his 2005 conviction on money-laundering quashed by the Supreme Court. Chivayo served the full three year term.”
    what how can zesa and chivayo both have the same lawyer commenting on the same thing. that is conflict of intrest at its best . unbeilivable I must say
    only in Zimbabwe. please switch off the light the last person leaving Zimbabwe.

  7. Surely Mpofu and Manase are conflicted in this matter? How can they be chasing with ZESA now and running with Chivayo at the same time?

  8. I am not a lawyer but if a question arises or if someone asks me kuti do you have a criminal record especially after i served 3 years in jail my answer should be yes i have a criminal record.

    Whether you are appealing or not is another issue. So i don’t understand the reasoning of Chivayo’s learned lawyers if they are saying the issue is on appeal. This guy already served 3 years for his crimes. He is a convicted criminal by all accounts.

  9. intatrechivhayo

    Chodhota gore rino, irorinoiri.

  10. Whoever hired Mpofu and Manase seeking legal opinion on this matter is very suspicious. In my opinion that person is corrupt. These lawyers should have declared their interests in giving legal opinion to ZESA on an individual they are fighting from his corner. Surely these lawyers are eating from Chivayo’s plate and you ask them if it is reasonable to continue dealings with the criminal …….. the answer is given. No wonder we remain where we are. As we speak we hear Minister Undenge is failing to explain where a deposit of $200000 came from. Obviously it is from Chivayo and Zesa deals. MBAVHA IDZI.

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