Ngoni Dapira

MUTARE Magistrate Honest Musiiwa on Monday dismissed the exception application by the two Clique Pharmacy directors facing charges for theft of trust property valued at US$309 595.67.

The accused directors, Simbarashe Mushambi Dube and wife Paula Dube, were subpoenaed on 23 September this year and first appeared before Magistrate Musiiwa on 29 September. They were charged with theft of trust property as defined in section 113(2)(d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The third director of Clique pharmacy, Douglas Chiutsi, who is the complainant, is claiming to have been prejudiced of US$309 595.67 in theft of trust property.

On October 16, the accused directors however applied for exception. Exception in law refers to an objection to a lawsuit by the legal defense to the ‘form’ of a legal action, but not its substance. The couple hired an expert corporate and commercial lawyer Pauline Mwandura, a partner in the corporate and commercial law department of the Harare based law firm Wintertons Legal Practitioners, to defend the charges of theft of trust property. Dorcas Mutungura of Maunga Maanda and Associates has however been handling the case and represented them on Monday.

Magistrate Musiiwa was supposed to have handed down the ruling last week Tuesday but postponed the matter to Monday. He said he was overwhelmed by cases that week.  The now defunct Clique Pharmacy court tussles have been ongoing since last year, with the three directors hauling each other before the court for various accusations and counter accusations, but this time it is the Dube’s couple that is on the receiving end. They filed for exception on 16 October and the State represented by prosecutor Talent Nyamuzuwe responded against the exception charges. Chris Munyuku is however now representing prosecution as the case develops.

In the State outline the complainant, Chiutsi, claims that the Dube’s sold the assets of their pharmacy, Clique Pharmacy, last year on 2 September 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.

The defense lawyers had applied for exception citing that the charge faced by the accused did not disclose any offence cognizable at law and by the Court, and that the charge was vague and embarrassing to the accused persons to the extent that they would be prejudiced in the preparation of their defense. In their defense they further argued that the assets owned by the company belonged to the company and not to a shareholder or its members.

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. Prosecution also argued that the exception application was meant to merely delay the commencement of the trial.

In his ruling on Monday Magistrate Musiiwa dismissed all three submissions by the defense lawyers.

“The argument that the assets owned by the company belonged to the company and not to a shareholder or its members, this argument is in my view wrong and in the view of the Court because of primarily, Section 277 (5) of the Criminal Law (Codification and Reform Act), which specifically inputs liability to directors personally, where the directors can be punished and prosecuted personally for any offense which a company would have been prosecuted. There is therefore no substance in the case that the accused persons must not be liable to any offense,” said Magistrate Musiiwa.

Adding, “It is further argued that complainant as shareholder has no claim to the company assets or the proceeds from their sale. This again in my view cannot be so, as the accused persons who are also directors are alleged to have sold the company assets without consent. If it is true that the accused persons as directors did sell the assets without the consent of one of the directors, in my view that should constitute an offense. So, the argument by the accused persons that the complainant should not have a say in the selling of assets of an alleged company is wrong in my view.”

On the third submission by the defense where it argued that the charge does not show that the company declared dividends and that the accused persons received dividends which they then converted to their own use, Magistrate Musiiwa said dividends were not the issue at hand before the Court.

“Again this argument in my view does not hold any merit for the purpose of exception because what is being at issue in this case is the assets of the company which are said to have been sold. In my view, if we consider what the charge is talking about, which is the issue of assets alleged to have been sold, it becomes the complainants concern. That should really solve the issue even without debating the issue of dividends being referred to by the accused persons. In as far as this court is concerned the application for exception is persistent, so it is therefore dismissed.”

Munyuku initially set the trial date for December 29, but Mutungura pleaded that his clients will be out of the country on that date. Magistrate Musiiwa consented for the trial date to be next year on January 6.

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 traded as Clique Pharmacy.

According to the State outline, “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. ZB Bank account 4532257721405 had US$13 478.14 as of 06 May 2024.”

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 2 September to Tirman Investments as alleged by Chiutsi in the State outline.