Nust loses US$200 000 lawsuit

By Mashudu Netsianda

The High Court has ordered the National University of Science and Technology (Nust) to pay more than US$200 000 to a Bulawayo engineering company for work carried out in connection with the proposed construction of student hostels.

The hostels were to be used by delegates during the Zone 6 Youth Games, which were held in Bulawayo in December 2014 but Government did not release the money to Nust as delegates were moved to Hillside Teacher’s College.

After entering an agreement for mechanical and electrical engineering services with Reclon Consulting Engineers (Pvt) Limited, the university ended up failing to pay the money after drawings were done forcing the company to approach the High Court.

The ruling by Bulawayo High Court judge Justice Maxwell Takuva follows an application by Reclon Consulting Engineers (Pvt) Limited demanding $225 593, 01 from Nust for preliminary design detailed tender drawings and documentations for the student hostels once they were submitted to the institution.In papers before the court, Nust was cited as a defendant.

The company, through its lawyers Coghlan and Welsh Legal Practitioners, said it entered into an agreement for mechanical and electrical engineering services with the institution of higher learning on August 19 in 2013.

The engineering company’s lawyers said when the work was completed on May 9 the following year, Reclon Consulting Engineers (Pvt) Limited invoiced Nust for services rendered in terms of the agreement. Justice Takuva ordered Nust to pay the money with a five percent interest.

“The agreement is between the plaintiff and the defendant and nowhere in that agreement is it suggested that the Government of Zimbabwe is a party or is liable to pay the plaintiff for services rendered. I take the view that the defendant cannot be allowed to shirk liabilities on the basis that the Government did not place it into funds.

“Accordingly, it is ordered that judgment be and hereby entered against defendant for payment of US$225 593,01 in respect of professional, mechanical and electrical engineering services rendered by plaintiff at the defendant’s special instance and request,” ruled the judge.

Nust, in a letter dated October 27, 2014, acknowledged the debt and undertook to settle the amount owed.

“We’re in receipt of your letter dated October 27, 2014 requesting payment of outstanding fees for professional services for the proposed student hostels at Nust. We did not receive funding for the project because the intended proposed Games Village project for African Union Sports Council Region Zone VI Youth Games were moved to Hillside Teachers’ College.

“However, we would like to inform you that the claim would be honoured once funding has been availed to Nust,” read part of the letter signed by Mr Baron Gaule, Nust’s physical planning, works and estates director.

Reclon Consulting Engineers (Pvt) Limited, whose lead consultant was the late Bulawayo architect Godwin Chitima, wanted an order compelling Nust to settle the debt with five percent interest calculated from the date of service of summons to the date of full and final settlement.

“Wherefore plaintiff prays for judgment to be entered against defendant for payment of $225, 593.01 in respect of professional mechanical and electrical engineering services rendered at Nust’s special instance and request. Plaintiff claims payment at the prescribed interest rate of five percent and the cost of suit at attorney-client scale,” said the plaintiff’s lawyers in their summons.

Reclon Consulting Engineers said despite demand, Nust has refused, neglected and failed to pay. Nust, through its lawyers, Calderwood, Bryce Hendrie and Partners, argued that according to the signed agreement, the Government was to pay the cost of the construction of the student residences.

“The plaintiff signed an agreement for the provisions of services without an authorised representative of the defendant and as such, the agreement is of no force or effect and is not legally binding on the defendant.

“The plaintiff was aware from the beginning that any payment for any work done was going to be effected by the Government of Zimbabwe through the Local Organising Committee of the Zone 6 Youth Games,” argued Nust lawyers. The Chronicle