Two accused persons, Vermaas and Du Plessis, faced extensive criminal trials in the Transvaal Provincial Division. Vermaas faced 140 charges (theft, fraud, and offences under fiscal/commercial legislation) with his trial commencing in August 1991. By March 1994, evidence and prosecution arguments were complete, leaving only defence argument on a record of approximately 40,000 pages. Du Plessis faced 63 charges (62 counts of fraud, 1 of corruption) with his trial commencing in June 1993 and still at an early stage. Both accused had been represented by successive advocates who withdrew or were dismissed due mainly to financial problems. Both trials commenced before the Constitution (Act 200 of 1993) came into operation on 27 April 1994. In mid-1994, both accused applied for orders directing that they be furnished with legal representation at state expense for the remainder of their trials, invoking section 25(3)(e) of the new Constitution. Du Plessis additionally claimed the right to choose his lawyer. The trial judges (Kirk-Cohen J and Hartzenberg J respectively) held that section 241(8) meant the Constitution did not apply to proceedings commenced before its operation, but referred the issues to the Constitutional Court for certainty.
Both cases were remitted to the Transvaal Provincial Division for the trials to be resumed and completed there. The trial judges were to determine the merits of the applications for state-funded legal representation in light of the interpretation of section 241(8) established in S v Mhlungu (delivered simultaneously), which held that the Constitution does apply to proceedings commenced before its operation.
Section 102(2) of the Constitution does not create an independent system of referrals to the Constitutional Court but merely supplements section 102(1) by regulating the procedure for referrals made under that subsection. No issue which a provincial or local division has the power to decide may properly be referred to the Constitutional Court while the litigation raising it remains in progress in that court. The trial judge must determine such issues, which may later be presented to the Constitutional Court on appeal if they fall within its jurisdiction, or via the special procedure in section 102(8) after the case is disposed of. When legal representation is provided at state expense under section 25(3)(e), the accused does not have the right to choose the particular lawyer, as that right applies only when the accused makes their own arrangements for representation (the first limb of section 25(3)(e) before the disjunctive 'or').
The Court made important observations about the proper approach to constitutional issues during trials: where a case is not likely to be of long duration, it may be in the interests of justice to hear evidence before considering a referral; interrupting trials is undesirable, especially criminal trials requiring witnesses to return after delays; once evidence is heard, a constitutional issue may turn out not to be decisive; and as a general principle, where it is possible to decide any case without reaching a constitutional issue, that course should be followed. The Court expressed serious concern that nearly a year after the Constitution came into force, no adequate financial and administrative structures had been established to give effect to section 25(3)(e). The Court warned that informing accused persons of their right to state-funded legal representation becomes 'an empty gesture and makes a mockery of the Constitution' if not backed by adequate enforcement mechanisms. The Court noted that countless thousands of poor South Africans are tried monthly without legal representation, and that the Constitution 'does not envisage, and it will surely not brook, an undue delay in the fulfilment of any promise made by it about a fundamental right.' The Court also noted that direct access under rule 17(1) provides an alternative mechanism in truly exceptional circumstances where the delay of ordinary procedures would prejudice the public interest or the ends of justice, though this should not be encouraged except in exceptional cases.
This case is significant for establishing important principles regarding the Constitutional Court's jurisdiction and the proper procedure for constitutional issues arising during ongoing trials. It clarified that section 102(2) does not create a parallel referral system, preventing trial judges from referring issues they have competence to decide. The judgment emphasized that constitutional issues should preferably be decided after evidence is heard and only when truly necessary to determine a case. The case is also significant for its strong obiter remarks about the state's obligation to establish adequate mechanisms to give effect to constitutional rights, particularly the right to legal representation under section 25(3)(e). It clarified that accused persons do not have the right to choose their lawyer when representation is provided at state expense. The case demonstrates the Court's early approach to managing its jurisdiction and the relationship between the Constitutional Court and other courts in the transitional period following the adoption of the interim Constitution.