Ngoni Dapira

MUTARE Magistrate Honest Musiiwa last week Thursday struck off the roll the case of Clique Pharmacy directors, Simbarashe Mushambi  Dube and his wife Paula Dube who were facing charges of theft of trust property of US$309 595.67.

The case was removed from remand after Mutare High Court Justice Sijabuliso Siziba made an order by consent on 14 January to quash the previous judgment by Magistrate Musiiwa that had dismissed an application for exception by the accused couple. After being subpoenaed last year on 23 September to appear before the court, the couple filed for exception on October 16, but the State represented by prosecutor Talent Nyamuzuwe responded against the exception application.

Procedural exception is an objection by the defense to the form of a legal action, but not its substance. However, when a review matter is quashed or set aside by a High Court, it means the High Court has ruled that a decision, order or proceeding from a lower court or administrative authority is null and void.

The review application for the couple was done by Pauline Mwandura of the Harare based law firm Wintertons Legal Practitioners. Mwandura argued that the judgment by Magistrate Musiiwa to dismiss their exception application was misconstrued and unreasonable in its defiance of knowledge. They therefore sought the High Court to set aside the judgment of dismissal of their exception application and to dismiss all charges against the accused couple.

The court tussles between the two accused directors and the third director, Douglas Chiutsi, of the now defunct but once very popular pharmacy in Mutare have been ongoing since 2024, but this time it was the Dube’s couple that was on the receiving end. The Dube’s first appeared before Magistrate Musiiwa on 29 September. Chiutsi who is the complainant, was claiming to have been prejudiced of US$309 595.67 in theft of trust property. He claimed that the Dube’s sold Clique Pharmacy assets and the business on 2 September 2024 to Tirman Investments. Tirmin Investments is currently operating its own pharmacy at the same premise where Clique Pharmacy used to operate, but slightly changed the brand name to Clique Care Pharmacy.

After remanding the matter for over a month, on 1 December last year Magistrate Musiiwa dismissed the exception application and set the trial date for January 6, but following the success of the review application, the trial failed to take off.

According to the State outline, “the complainant (Chiutsi) held 33% of the shares while the accused persons had 33.5% each. In 2024 the parties had a sour relationship and the complainant resigned from work as a pharmacist on 7 May 2024. The complainant left Healthwell Pharmacy t/a Clique Pharmacy with stock and assets as stated on annexure marked ‘B’ attached valued at US$272 775-56. Cash at hand US$21 990.00. Stanbic Bank account 914000991383 had US$1351.99 whilst ZB Bank account 4532257721405 had US$13 478.14 as of 06 May 2024.”

In the State outline Chiutsi further claims that the accused persons removed him from being a director without his knowledge or consent on 27 May 2024 and went on to remove him from being a signatory at Healthwell Pharmacy.

Clique Pharmacy was closed by the Medicines Control Association of Zimbabwe (MCAZ) last year on August 8, due to lack of compliance issues, a month before it was sold on September 5 to Tirman Investments as alleged by Chiutsi in the State outline.

However, in response to the review application by the Dube’s where Magistrate Musiiwa was the first respondent whilst the Office of the Prosecutor General, represented by Mutare Magistrates Court prosecutor Janerose Matsikidze, was the second respondent, Matsikidze did not oppose the review application.

“I have heard sight of the papers filed by counsel on behalf of the applicants and am inclined to agree that an irregularity may have occurred in the manner in which this matter was disposed off,” read her response to the High Court.

Matsikidze noted that the complainant and the accused were all shareholders and there were issues that should have been considered when the application for exception was made. She said the fact that the applicants jointly hold a majority share in the pharmacy on its own should have translated that the applicants had  a right to apply for exception to criminal charges citing that they cannot be said to have stolen that which belongs to them. She said the matter should have been made more of a civil matter than criminal from the onset.

“It is my further view that the matter that was placed before the court a quo and now before the Honourable court is purely a civil dispute which ought to have been settled before a civil court. To characterize it as a criminal matter appears to me to be a misstep on the part of the second respondent. Further, an irregularity may have been occasioned by the first respondent’s ruling that this matter be criminal,” said Matsikidze.

Adding, “It is my further view that the complainant’s relief lay, not in criminal proceedings but in the civil court in terms of the Companies Act. The remedy for a director who is dissatisfied with the conduct of the company and/ or its directors does not lie in criminal proceedings but through the civil court.”

In his order by consent, Justice Siziba succeeded the court review application. “After reading documents filed of record and hearing counsel it is ordered by consent that the decision to dismiss the exception of the first and second applicants under X-REF CRB MUTP2899/25 be and is hereby set aside. The charges against the first and second applicants are hereby quashed. There shall be no order as to costs,” said Justice Siziba.