The accused, Wessel Albertus Vermaas and Johan Petrus Lafras Du Plessis, were standing trial in the Transvaal Provincial Division on numerous serious fraud, theft and corruption charges. Both trials commenced before the interim Constitution of 1993 came into force and were lengthy and complex. Each accused initially had legal representation but later became unrepresented due to lack of funds. After the Constitution commenced, both applied mid-trial for an order that they be provided with legal representation at state expense under section 25(3)(e). The trial judges held that section 25(3)(e) did not apply to trials already in progress and referred that question, together with the merits of the applications, to the Constitutional Court under section 102.
The referrals were declared incompetent, and both cases were remitted to the Transvaal Provincial Division for the trials to be resumed and completed. The Constitutional Court made no order on the merits of the applications for state-funded legal representation.
The case authoritatively clarified the limited scope of section 102 of the interim Constitution and confirmed that trial courts may not refer issues to the Constitutional Court mid-trial unless they fall within its exclusive jurisdiction. It also emphasised the importance of procedural discipline in constitutional litigation and highlighted direct access as the appropriate mechanism in exceptional cases. The judgment underscored the practical and institutional challenges of implementing the constitutional right to state-funded legal representation.