The landmark case, which had been set for Wednesday before the full Constitutional Court bench, was removed from the roll after the court observed that the decision of the trial magistrate was not in the record before the apex court.
Before Winnet Munyonga (36) and Chiedza Chiutsi (33) entered their plea, they asked the prosecution to reveal the name of the informant, so that an explanation could be made in court on how the informant knew they had ivory when they were not aware of its existence in their vehicle.
Police refused to reveal the identity of the informant, while the prosecution opposed the request, and the trial magistrate, Mr Tendayi Mahwe, upheld the State’s position.
When the hearing commenced, the Constitutional Court bench led by Justice Elizabeth Gwaunza said it was crucial for the lower court’s decision to be included in the record before the highest court.
During this period, the prosecution can also file their papers for the case. This means the matter will be back in court once the record is complete.
The women, who are being represented by Advocate Tawanda Zhuwarara, were arrested in December last year when police searched their vehicle and recovered eight uncut pieces of ivory.
They had parked their car along Robert Mugabe Road and were searched when they returned to the car some hours later.
Police said they received the information from an unnamed informant.
Munyonga and Chiutsi unsuccessfully applied for the State to disclose the informant, after which they approached the Constitutional Court claiming violation to a fair trial.
It is their contention that Section 62 (2) of the Constitution gives every person the right to access any information held by any person, including the State, insofar as the information is required for the exercise or protection of a right.
Further, Munyonga and Chiutsi argue that Section 70 (1) (c) of the Constitution also affords a suspect the right to be given adequate facilities to prepare a defence.
It is also argued that the provisions they cited establish the two have a right to know who the informant is and what he or she told the police.
The duo brought the constitutional application in terms of Section 175 (4) of the Constitution after the magistrate rejected their request to have the matter referred to the Constitutional Court on March 30.
They argue that the magistrate’s refusal to refer the matter to the Constitutional Court was wrong in the circumstances and violated their right to approach the court.
Such right, they say, is enshrined in Section 69 (3) of the Constitution.