The State v Lovemore Kurotwi and Dominic Mubaiwa

This was a criminal prosecution against two accused persons. On 31 July 2012, defense counsel requested the State to provide various documents relating to Canadile Mines (Pvt) Ltd, including: board resolutions appointing auditors and directors, financial source documents, diamond production and sales statistics, valuation reports, dividend declarations, minute books, bank statements, and mine-to-market records. On August 2012, the court granted an order directing the State to produce documents in its possession that were relevant to the proceedings. When the trial resumed on 11 September 2012, the State indicated partial compliance, explaining that some documents were not provided because: Canadile Mines (Pvt) Ltd was defunct with no board of directors at dissolution (making some documents non-existent); some documents were incomplete but would be completed; and other documents were either considered irrelevant by State counsel or were not available in the State's possession.

• What is the extent of the State's obligation to provide discovery of documents to the defense in criminal proceedings?
• Is the State obliged to investigate and acquire documents on behalf of the defense?
• What documents must the State disclose - all requested documents or only those in its possession and considered relevant?

The court maintained and confirmed its original order that the State must furnish the defense with copies of all relevant documents in the State's possession. The court did not find the State in breach of the order, accepting that partial compliance was justified where documents were not in the State's possession or were non-existent. The State was directed to complete production of the incomplete CR 14 form and the witness was directed to avail all documents in his possession and explain the non-availability of missing documents.

The binding legal principle is that in criminal proceedings, the State's obligation to provide discovery is limited to: (1) documents that are actually in the State's possession or custody; and (2) documents that the State considers relevant and essential to the proceedings. The State has no legal obligation to investigate and acquire documents on behalf of the defense, nor to produce documents that are not in its possession, even if requested by the defense.

The court noted that Canadile Mines (Pvt) Ltd was defunct at the relevant time and had no board of directors at the time of its dissolution, which explained why certain corporate documents (such as board resolutions) were non-existent. The court also observed that where the State explains that certain documents are not available or are considered irrelevant, and there is no suggestion that the State actually possesses such documents while falsely claiming otherwise, the court will accept the State's position regarding non-production.

This case clarifies the scope of the prosecution's disclosure obligations in Zimbabwean criminal proceedings. It establishes that while the State must disclose relevant documents in its possession, it has no duty to conduct investigations to obtain documents on behalf of the defense. This ruling balances the accused's right to adequate disclosure for preparation of their defense against the practical limitations on the prosecution's disclosure obligations. The case reinforces the principle from Smyth v Ushewokunze regarding the limits of prosecutorial disclosure duties.