The State v Serumula

• Jurisdiction: South Africa
• Judge: Theron J
• Judgment Date: 30 April 1962
• Hearing Date: 30 March 1962
• Court: Witwatersrand Local Division

F Theron, J.:

On the 4th May, 1961, the applicant was convicted in this Court of murder without extenuating circumstances and sentenced to death. Upon the 15th May, 1961, an application for leave to appeal was refused. Thereafter an application dated the 19th June, 1961, was submitted to the learned CHIEF JUSTICE for leave to appeal. This G application was also refused.

Upon the 27th March, 1962, the present application was submitted to this Court for hearing on the 30th March, 1962. This is a two-fold application in terms of sec. 364 of Act 56 of 1955. The first is for an order extending the period within which the application for special H entry is to be brought. Secondly for the making on record of the special entries applied for.

In sec. 364 (1) of the Act it is provided that:

'If an accused thinks that any of the proceedings in connection with or during his trial, whether by jury or not before a Superior Court are irregular or not according to law, he may, either during his trial or within a period of 14 days after his conviction, or within such extended period as may on good cause be allowed, apply for a special entry to be made on the record stating in what respect the proceedings are alleged to be irregular or not according to law and such special entry shall, upon such application, be made unless the Court to which or the Judge to whom the application is made is of the opinion that the

Theron J

application is not made bona fide, or that it is frivolous or absurd, or the granting of the application would be an abuse of the process of the Court.'

Furthermore, in sub-sec. (2) of this section, it is provided that:

'Save as hereinafter provided the application shall be made to the Judge who presided at the trial, or if he is not available, . . ., to any other Judge of the Provincial or Local Division of which that Judge was A a member when he so presided.'

In his endeavour to show good cause for the granting of the extension of the period within which to bring his application for the special entries to be made the applicant stated:

'At the time that my application for leave to appeal was refused by the CHIEF JUSTICE I did not know that the remedy of an application for a special entry on the record was still available to me. But even if I had B known this I did not have the funds to incur further legal expenses. I consequently resigned myself to my fate.

I have been informed by the office of the State Attorney...