By Desmond Chingarande
A HARARE magistrate yesterday removed the lawyer of Dynamos Football Club chairperson Bernard Marriot Lusengo from representing him in a fraud trial, saying he was conflicted as he was involved in the matter before the court.
The state raised a red flag after Herbert Mutasa tried to represent his client in court.
Lusengo is accused of fraudulently issuing himself 51% shareholding without a board resolution.
Mutasa is said to have played a role in the matter before the court.
Prosecutor Tapiwanashe Zvidzai told magistrate Barbara Mateko that Mutasa was the legal practitioner for Dynamos when the share issue arose and therefore could not represent Lusengo.
“The state is filing an application for recusal of the defence counsel. In 2010 Dynamos Football Club through its management held a meeting to look into the share allotment issue and approached a law firm where the defence counsel works,” Zvidzai submitted.
“The defence counsel was then nominated to represent Dynamos in the issues where the share allotment was being shared. The defence counsel was the legal representative of Dynamos Football Club and all the issues of shares were conducted by him.
“The State is of the view that the defence counsel is a conflicted person. With the knowledge he has of this matter he will be prejudicial to the State. Therefore we seek his recusal on the clear conflict,” he added.
Mutasa, however, opposed the application saying Lusengo had a right to representation of his choice.
“I do not believe that the court should entertain this. This application is frivolous and vexatious. I believe that for the court to entertain the matter it must analyse the case the accused is facing,” he argued.
“The accused is facing a charge of fraud. The issue of acquisition of shares is an issue of record. The State had made bad allegations. All that the state said is there was a discussion involving the accused and his lawyer.
“The State is not stating what exactly happened between the two. The accused can be represented by the lawyer of choice. There is a resolution to appoint me. This shows how Dynamos is serious in defending its chairman,” Mutasa added.
But magistrate Mateko ruled in favour of the state. The matter was then postponed to Monday for trial.
The complainant is Dynamos (Private) Limited represented by Robinson Rundaba, head of the directors at the company. Lusengo is one of the directors at Dynamos (Pvt) Ltd.
It is alleged that sometime in 2008, Dynamos (Pvt) Ltd’s subsisting articles of association were replaced through a special resolution.
The net effect of the articles of association was to allocate some shares to people who were active members of the club during the period extending from 1963 to 1968.
This was in accordance with the recommendations of the Sports Recreation Commission. A three-member committee was set up to look into the issue of allocation, payment, distribution and issuing of share certificates.
The committee consisted of Rundaba, Lusengo and Casper Muzenda.
However, the committee never met to deliberate on the matter and the allocation of shares and issuance of certificates was not done.
The issue was never revisited but the agreement on allocation of shares for beneficiaries still stands.
Sometime in 2019, Rundaba received a call from one Chitambo of Sakunda Holdings advising him that Lusengo had approached their company seeking sponsorship for Dynamos FC and that he was claiming that to be the sole owner of the club.
Rundaba allegedly then convened a meeting with Chitambo in the company of Simon Sachiti and one Nyamandwe in which Chitambo claimed that Lusengo had retracted his earlier claim and was now saying he owned 51% of the company shares.
Lusengo’s claim to Sakunda Holdings that he is the sole owner of the company prompted Rundaba to make a police report.
Investigations revealed that Lusengo had awarded himself 51% shareholding in the club without the knowledge or approval of Rundaba.
The State alleges Lusengo’s conduct can cause a potential prejudice of 51% shares to Dynamos.
The CR14, CR2 and articles of association for Dynamos will be produced in court as exhibits.