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Fidelis Munyoro Chief Court Reporter

A fresh tender is expected to be floated by Government over the multi-billion Kondo Chitowe dams after the High Court endorsed cancellation of an agreement for a feasibility study it had with a private company, saying that the deal automatically fell through by that same agreement when the company failed to raise the funds it needed.

The Kondo and Chitowe dams multi-purpose project is a major water infrastructure initiative on the Save River intended to unlock the socio-economic development potential of the Save and Runde catchments.

Government cancelled Tawana Power Corporation tender after the company failed to secure funding for a feasibility study for the Kondo and Chitowe dams multi-purpose project within the agreed time frame of six months.

According to the agreement signed between the Ministry of Lands, Agriculture, Fisheries, Water, and Rural Resettlement and Tawana Power Corporation the agreement would automatically lapse if the company failed to meet its obligations. But the company disagreed and went to court, seeking to have the agreement restored and large sums in compensation paid.

The company sued the Ministry, Vice President Constantine Chiwenga, Zimbabwe National Water Authority and the Procurement Regulatory Authority of Zimbabwe as respondents in its High Court application. It sought a declaration that the agreement between the company and the Government was still binding or otherwise damages against the Ministry for US$1 483 550 000 for the prejudice it allegedly suffered as a result of the Government’s dropping the deal as well as what it alleged was illegal use of Tawana’s intellectual property in the tender.

But Justice Webster Chinamora dismissed the application by Tawana noting that it failed to comply with the terms of the agreement that: “If the Bidder fails to secure funding in terms of Article 5.1, this Agreement shall automatically lapse.”

Since Tawana did not meet its obligation, said Justice Chinamora, the parties agreed that the fate of the agreement was to automatically lapse

The court also did not agree with Tawana, which was represented by Advocate Tinomudaishe Chinyoka, that the loss it incurred would be adequately compensated by an award of damages.

But Justice Chinamora noted that nowhere in the founding affidavit did Tawana prove its claim as the court was not told what the company earns as income and how the amount of US$1 483 550 000 had been computed.

Also not pleaded were the particulars of the alleged theft of the company’s intellectual property and the value attributed to it in the composite amount of US$1 483 550 000.

In fact, the nature of the intellectual property had not been identified, nor whether such intellectual property was registered for protection by copyright, patent, trademark and design laws, with the judge noting that the loss associated with the project up to the time the proceedings were commenced was not stated, and no supporting documents were provided to prove the expenses.

In his view the judge said there was nothing before the court that warranted an award of damages.

“I am not satisfied that the applicant has established a case for the damages that it seeks. For my part, I also doubt the wisdom of bringing a claim for damages via the application procedure, especially where no evidence has been tendered to prove the costs incurred towards the project.”.

The company went to court after the Ministry on March 3 2019, advertised for “International Tenders for the Development of Water Infrastructure in Zimbabwe.

This was after Tawana and the Ministry had concluded an MOU on February 19 2013 for the development of the Multi-Purpose Project. The MOU expired on February 18 2015, upon which negotiations began leading to the agreement.

Tawana felt advertising the tender was a violation of the agreement embodied in the MOU.

It argued that, according to the invitation, projects available for tender included the Kondo-Chitowe dam project and the reason for the project being put to tender was that the agreement had expired, which it claimed was incorrect.

But the Ministry which was represented by Ms Olivia Zvedi from the Attorney General’s Office argued that Tawana had failed to prove that it was entitled to damages as no evidence was put forward on how the damages were established and quantified as the figure only appears from the order.

She also disputed that it was the letter of VP Chiwenga which led to the cancellation of their agreement.

Further to this, it was argued that there was no reason for citing the VP Chiwenga in the present proceedings.

There was a Zimbabwe-South Africa Joint Water Commission, which as at June 2020, was about to initiate “planning studies to investigate water resource development options in Zimbabwe for the benefit of both countries.”

She said since the signing of the agreement, the technical teams of both countries have been continuously meeting to initiate the joint studies and to make updates on water related issues of mutual interest to both parties.

According to the MOU, which was signed in February 2013 the multi- purpose project would provide six billion cubic metres of raw water storage. If completed the project would see the country unlocking 100 000 hectares of land for large scale irrigation, generation in excess of 270 megawatts of peaking hydro-electricity at Kondo dam gorge, generation of 3,5 megawatts of hydro-electricity at Chitowe dam’s east bank canal; and possible annual water supply contract of 400 million cubic metres to South Africa.

In addition to the developments, there were other various key infrastructures that were envisaged by the agreement.

The company and the Government had agreed to cooperate in order to achieve the objectives of the agreement. This was to be done by putting together resources for the conduct of a feasibility study to assess the viability of the project on the terms of the agreement and in line with the Joint Venture Act or other relevant laws of Zimbabwe.