HARARE City Council (HCC) acting town clerk Phakamile Mabhena Moyo finds himself at the centre of controversy after citing non-existent contractual provisions in an attempt to terminate the US$5,4 million water treatment agreement with South African-based firm Nanotechnology, the Zimbabwe Independent can exclusively reveal.
The contract, established in 2019, has been marred by delays as both parties argue over required submissions of acquittals.
After an initial payment of US$1,1 million to Nanotechnology, HCC has insisted on receiving acquittals and invoices to advance the project.
However, Nanotechnology has insisted that their contract specifies acquittals are due only upon project completion.
In a letter dated September 6, Moyo accused Nanotechnology of failing to construct an infant school and procure a vehicle for the council, claiming these failures jeopardise the project.
Yet, Nanotechnology asserts that its contract does not obligate it to build a school and buy a vehicle for the council.
Moyo referenced a supposed clause in the agreement stating that a new NP 300 vehicle was part of their obligations, giving Nanotechnology 21 days to rectify the alleged breaches or face termination of the contract.
He wrote to Nanotechnology: “On the 5th of May 2019, City of Harare and your company entered into an agreement for the supply, installation, commissioning, operation and maintenance of chlorine dioxide water treatment technology at Morton Jaffray.
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"While it is acknowledged that you did submit a grant chart, which indicated construction on the site would commence on the 8th May 2023, to date no progress has been made towards the construction of the council infant school.
“In terms of clause 6.2.11 of the Memorandum of Agreement, you were supposed to supply a brand-new NP 300 vehicle, which is part of your obligations under the agreement.
“Various engagements have been made yet you have failed to honour this obligation and as such you are in breach of the agreement.”
Subsequently, Moyo gave Nanotechnology a 21-day deadline to fulfil the “terms”, failure of which HCC would revoke the agreement.
“Your trust is accordingly in breach of the agreement and by copy of this letter, City of Harare hereby gives you 21 working days’ period in terms of clause 9.5.1 of the Memorandum of Agreement to remedy the breach, failing which City of Harare shall proceed to terminate the Memorandum of Agreement,” excerpts of Moyo’s correspondence reads.
However, in separate legal documents also gleaned by the Independent, Nanotechnology on September 23 instructed its lawyers to write to Moyo categorically denying being bound to ‘fictitious’ obligations relating to the construction of a school and purchase of a vehicle for the city.
Honey and Blanckenberg law firm, representing Nanotechnology, wrote to Moyo alerting him that the supposed provisions which the South African firm violated were not stated in the contract.
“We are provided with a copy of a letter drawn by you dated 6 September 2024 addressed to the manager Nanotech Water Solutions Proprietary to the physical address of Nanotech which is Cnr 7 Avenue/Rabie Street, Randburg, South Africa,” the letter reads in part.
"The 6th September, 2024 letter in paragraph-6 stipulates that our client is "in breach of the agreement and by copy of this letter, City of Harare hereby gives you 21 working days… in terms of clause 9.5.1 of the Memorandum of Agreement to remedy the breach failing which city of Harare shall proceed to terminate the Memorandum of Agreement.
“There is no clause 9.5.1 in the copy agreement provided to us initialled and signed by all parties in 2020. More particularly clause 9 and sub paragraphs 9.1 and 9.2 of the agreement provided to us has a subheading cost of the pilot project.
"You must be referring to another agreement, which is not before us and which is not known by our client.
“Kindly provide us with a completed copy of the agreement to which you refer for record purposes by return consequent to which we will be in a position to respond,” excerpts of the letter further read.
Nanotechnology broadly refutes claims that it is obligated to build a school and buy City of Harare a vehicle.
The letter further reads: “In paragraph 3 of the 6 September 2024 letter, mention is made that ''construction would.... start after site handover and was to be completed within a period of 24 months from the date of signature. None of that appears from the documents in our possession.
“Kindly point out to us what relevant clause you rely upon for this ‘assertion' which we reiterate, is unknown to our client.
“Your paragraph 4 is manifestly perplexing in that it makes mention of the “supply of a brand-new NP 300 vehicle” as part of …our client’s obligations under the agreement.
“This purported contractual obligation will possibly appear from the document that you rely upon which is unknown to exist by our client. For record purposes, out of abundance of caution, the so-called breach of on account the non-supply of a motor vehicle is categorically denied.”
As a result, Nanotechnology’s lawyers averred the South African firm had no legal obligation to fulfil non-existent contractual terms.
“There is accordingly no basis in fact or law for our client to attend to a rectification or remedy of any perceived breach,” the lawyers stated.
“Rather it is the city of Harare that has been in consistent breach notwithstanding a variety of attempts to keep the contract alive and to motivate the proper conclusion of the signed agreement which requires funding for chemicals to complete the run test.
“Your notice to remedy breaches which do not contractually exist are fundamentally flawed and are categorically denied.”
At the time of going to print, Moyo had not responded to questions posed by the Independent.
An audit report prepared by HCC audit manager Archibald Nyamurova on July 24 seen by this publication shows that Nanotech petitioned HCC threatening to take legal action against the local authority for engaging third parties on offering similar services.
An audit report by HCC’s audit manager, Archibald Nyamurova, revealed that Nanotechnology had threatened legal action against the city for engaging third parties for similar services, which they argue violates their agreement.
The audit raised concerns about potential sabotage against Nanotechnology, suggesting that if the claims were true, they could not be dismissed lightly.
Before awarding the tender to Nanotechnology, HCC had commissioned the firm to test the quality of its water.
Results from those tests, released in 2020, indicated that the water supplied to residents contained toxins potentially harmful to health.
