Intratek in violation of Companies Act?

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Tawanda Musarurwa
Intratrek Zimbabwe may have violated the Companies Act (24:03) when it appointed Wicknell Chivayo as its managing director.

The company, according to its website is headquartered in South Africa and was founded in 1994.

But it’s the company’s registration of the Zimbabwean subsidiary with Chivayo as its managing director that has raised consternation.

According to the Companies Act (24:03) Section 173 (1) “Any of the following persons shall be disqualified from being appointed a director of a company . . . (d) 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.”

Registration of a company in Zimbabwe is an extensive process, but one of the critical elements is notifying the Registrar of Companies on the appointments of the company’s directors and secretaries.

How did the Registrar of Companies fail to carry out a simple background check on Chivayo?

In 2005, Chivayo was convicted by the High Court. He was sentenced to five years for money laundering, which involved R837 000, but two years were conditionally set aside, leaving him to serve an effective three years in prison.

Chivhayo also admitted to the Parliamentary Portfolio Committee on Mines and Energy earlier this year that he had been convicted.

Appearing before the same committee this week, Procurement Regulatory Authority of Zimbabwe (PRAZ) chief executive Nyasha Chizu noted that was a high likelihood that Intratek had violated the law. Chizu — who was the procurement officer at PRAZ’s predecessor, the State Procurement Board (SPB) — also hinted that there may have been a deliberate ploy not to include the issue of eligibility of directors in the evaluation criteria for the Gwanda Solar Project tender.

“The Companies Act should have — if there was a proper process (because I was following proceedings in the periphery) the tender was done in 2013 and I think Chivayo’s company should be a 2010 company — or at least after 2010 — which means it was a company after his conviction, which means perhaps it was people who slept on duty at the registrar of companies to allow this company (Intratek Zimbabwe) to register (Chivayo as a director) and it was not a prerogative of the State Procurement Board to ask if the company was registered properly,” he said.

“Section 34 (1) (f) of the old Procurement Act says you can exclude when neither they nor, in the case of a corporate body, any of their directors or officers have in the preceding ten years been convicted in any country or any offence by whatever, which means the Zimbabwe Power Company (ZPC) if they wanted to exclude directors with a criminal nature they were supposed to put in the evaluation criteria.

“The evaluation criteria set out in the tender document did not include issues of exclusion of people with a criminal record. So there was no way that the SPB could have considered it as part of the criteria.”

Intratek Zimbabwe was awarded the $200 million tender to construct a 100-megawatt solar plant in Gwanda, Matabeleland South province in 2015, after having initially failed the bid, having lost it to Chinese firm, China Jiangxi in 2013.

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