Ngoni Dapira

The Clique Pharmacy wrangle took an unexpected turn on Tuesday when the accused directors hired an expert corporate and commercial lawyer to defend their exception application of theft of trust property charges.

The magistrate was supposed to have handed down the ruling but in a twist of events the defense represented by Pauline Mwandura, a partner in the corporate and commercial law department of the Harare based law firm Wintertons Legal Practitioners, requested to add more submissions to Mutare Magistrate Honest Masiiwa. The lawyer who has been handling the case, Dorcas Mutungura of Maunga Maanda and Associates was also present but took a back seat.

The now defunct Clique Pharmacy court tussles have been going on since last year, but this time it the couple directors, Simbarashe Mushambi Dube and Paula Dube, that are facing charges of theft of trust property. The Dube’s were subpoenaed on 23 September and first appeared before Magistrate Masiiwa on 29 September. They filed for exception on 16 October and the State represented by prosecutor Talent Nyamuzuwe dismissed the exception charges in its response.

Procedural exception is an objection to the form of a legal action, but not its substance. Douglas Chiutsi the third director of the pharmacy who is the complainant is claiming to have been prejudiced of US$309 595.67 in theft of trust property. He claims that the Dube’s sold Clique Pharmacy assets and the business last year on September 5 to Tirman Investments. Tirmin Investments is now operating its own pharmacy at the same premise where Clique Pharmacy used to operate, but slightly changed the brand name to Clique Care Pharmacy. Clique Care Pharmacy was opened with new directors Trust Tanyanyiwa and Batsirai Guruwo who are pharmacists.

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 5 September to Tirman Investments as alleged by Chiutsi in his subpoena.

The defense had applied for exception citing that the charge faced by the accused does not disclose any offense cognizable at law and by the Court, and that the charge is vague, embarrassing to the accused persons to the extent that they will be prejudiced in the preparation of their defense.

The State dismissed the exception charges and argued that the charge of theft of trust property is cognizable at law under Section 113 of the Criminal Law (Codification and Reform Act) Chapter 9:23. Nyamuzuwe also argued that the exception application was meant to delay the commencement of the trial.

“Cumulatively it is submitted that the application for exception was unmeritorious and was never designed to test the legal imperfections of the charges. They were simply meant to delay the commencement of trial. A simple request for further particulars could have cured the defense‘s disquiet and discomfort. Equally a request for an amendment could have helped the matter,” said Nyamuzuwe in the State’s response to exception dated 27 October and submitted to Magistrate Masiiwa.

However, on Tuesday Nyamuzuwe did not represent the State for unspecified reasons when the defense requested to submit extra submissions to Magistrate Masiiwa. Chris Munyuku represented the State.  The defense lawyer Mwandura pleaded that the accused who excepts to be charged must not be regarded as a time waster but someone seeking justice.

“For the State to allege theft of trust property there is need to create a relationship of trust which was not there…They need to be clear what the theft is,” said Mwandura.

The State outline reads,”The complainant 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 and 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.

Magistrate Masiiwa set the ruling date for next Monday (17 November).