THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 318/09

Louis Johann Olivier

Appellant

and

The State

Respondent

Neutral citation:
Olivier v The State (318/09) [2010] ZASCA 48 (31 March
2010)

Coram:
Nugent JA, Griesel et Majiedt AJJA

Heard:
10 March 2010
Delivered:
31 March 2010

Summary:
Sentence – evidentiary weight of ex parte submissions
from the Bar – six counts of fraud – sentence of seven
year's imprisonment, of which three years conditionally
suspended, confirmed.

______________________________________________________________

ORDER

On appeal from:
Eastern Cape High Court, Grahamstown (Jones and
Alkema JJ sitting as court of appeal).

The appeal is dismissed.

JUDGMENT

MAJIEDT AJA (Nugent JA and Griesel AJA concurring)
[1] It has become common practice during the sentencing stage of a
criminal trial for an accused's legal representative to make ex parte
submissions from the Bar on his or her client's behalf. These unattested
statements often contain material averments which impact directly on
sentence considerations.1 The primary issue for determination in this appeal
is what evidentiary weight, if any, the ex parte allegations contained in the
submissions made by appellant's counsel on sentence at his trial carried.

[2] The appellant, Mr Louis Johann Olivier, was convicted on his plea of
guilty of six counts of fraud by the regional court at East London. The six
counts were taken together for sentence purposes and a sentence of seven
years' imprisonment, of which three years were suspended for a period of four
years on condition that the appellant is not convicted of fraud or theft
committed during the period of suspension, was imposed.

An appeal to the Eastern Cape High Court at Grahamstown (Jones and
Alkema JJ) against sentence was unsuccessful. The present appeal against
sentence is with the leave of the court below.

1 In my experience, prosecutors would only in rare instances convey to the court whether
these ex parte submissions are disputed or not, which further complicates the matter.

[3] In a comprehensive written plea explanation the appellant admitted
having perpetrated fraud in six instances in respect of monies entrusted to
him by his clients for secure investment as their financial adviser.2 The frauds
were committed over a period of approximately one year from 18 February
2002 until 5 February 2003. The total sum lost through the appellant's
fraudulent conduct amounts to R807 000. The appellant explained that he,
contrary to the express instructions of his clients (the complainants) that he
should invest their money with either Sanlam or Old Mutual, handed the
money to one Shane Richter who deposited same into the account of Mini
Stores (owned by Richter) at FNB Kingwilliamstown. Richter was one of the
appellant's clients. The complainants' cheques were cashed through a special
arrangement that Richter had with a specific teller at FNB. Richter did not pay
over the full proceeds of the amounts thus deposited, thereby causing loss to
the complainants.

[4] During the sentencing stage, the appellant's counsel did not lead any
oral evidence and contented himself with an ex parte address on sentence
from the Bar. Given the importance of this aspect it is necessary to quote in
full counsel's opening remarks:
'Your Worship, in respect of sentence, I am not calling any evidence, I will address the court
on sentence. However if there's anything that I'm saying that my learned colleague is
not in agreement with, if she can just indicate and then we will consider whether it's
necessary to call evidence to disprove [prove] our allegations'3 (emphasis added).

The prosecutor did not take up this invitation to dispute any of the ex parte
averments at that time, but instead challenged same in the course of her
address on sentence.

2 In his plea explanation the appellant described himself as a financial planner doing business
as such as sole member of Louis Olivier Financial Services CC, trading as 'the Brokerage' in
East London.
3 Both addresses by defence counsel and the prosecutor on sentence were transcribed and
form part of the record before us.

[5] In his judgment on sentence the regional magistrate expressed the
view that he would have expected the appellant to testify under oath to
explain, inter alia, the appellant's relationship with Richter, upon whom the
appellant sought to shift considerable blame for the fraud. I shall revert to
Richter's alleged role later in the judgment; suffice to record at this juncture
that the regional magistrate correctly observed that much of the blame for the
commission of the offences was shifted onto Richter by the appellant in the
written 'address on sentence.'4 The regional magistrate was further of the view
that many important questions relating to the commission of the offences
remained unanswered in the absence of oral testimony by the appellant.

[6] Writing for the high court, Alkema J firmly dispelled the supposition on
which appellant's counsel premised his submissions, namely that the facts set
forth in the written address on sentence repeated by counsel in his address
should have been accepted as a matter of fact by the trial court. The learned
Judge drew a distinction between formal and informal admissions and
categorized under the latter an agreement between the State and the defence
on issues such as the accused's personal circumstances, his background and
history, for sentence purposes. The learned Judge stated that he knew of no
practice whereby counsel may simply place ex parte facts before a sentencing
court, having invited the State to object to any such facts and, absent any
objections, to obligate the sentencing court to accept these ex parte facts as
proven facts. If indeed there is such a practice, said Alkema J, it cannot
simply be elevated to a rule of law. It should be discouraged since it is open to
abuse and it has no place in our jurisprudence.

[7] In this court, appellant's counsel submitted that the approach adopted
by Alkema J conflicts with other decisions (to which I shall allude later) and
that the facts presented ex parte at trial should have been accepted by the

4 A curious feature of the case is that the appellant's counsel handed in as exhibit B at the trial
a written 'address on sentence' containing legal and factual submissions and incorporated
therein a statement written by the appellant himself setting out in some detail his personal
circumstances. It also contains a brief, rather incomplete description of the circumstances
under which the offences had been committed.

trial court as proved facts. Relying on this court's decisions in S v Cele5 and S
v Heslop6, counsel submitted that, in the context of the appellant's fair trial
right7, the regional magistrate was obliged to convey in advance which of the
ex parte facts were not accepted, before drawing an adverse inference
against the appellant in the absence of any testimony from him. The disputed
factual averments advanced by appellant's counsel at the trial include, inter
alia, the allegation that the complainants had all been compensated by the
appellant, that the appellant did not personally benefit from the various
instances of fraud and of course Richter's role in the whole affair. These are
matters which may have a material bearing on sentence. A discussion of the
evidentiary weight, if any, to be attached to factual averments contained in ex
parte submissions on sentence, is accordingly necessary.

[8] It is trite that during the sentencing phase, formalism takes a back seat
and a more inquisitorial approach, aimed at collating all relevant information,
is adopted.8 The object of the exercise is to place before the court as much
information as possible regarding the perpetrator, the circumstances of the
commission of the offence and the victims' circumstances, including the
impact which the commission of the offence had on the victim. The
prosecutor, defence counsel and the presiding officer all have a duty to
complete the picture as far as possible at sentencing stage. Material factual
averments made during this phase of the trial ought, as a general proposition,
to be proved on oath.9

[9] Pedantic formalism in respect of minor, uncontentious issues such as
an accused's personal circumstances is unnecessary and such matters can
readily be disposed of in oral argument. Quite often these concern matters

5 1990 (1) SACR 251 (A); [1991] ZASCA 31.
6 2007 (1) SACR 461 (SCA); [2006] ZASCA 20.
7 As provided for in s 35(3) of the Constitution, Act 108 of 1996.
8 S v Siebert 1998 (1) SACR 554 (A) [1996] ZASCA 135 at 558g-d; Rammoko v Director of Public
Prosecutions 2003 (1) SACR 200 (SCA) [2002] ZASCA 138 at 205d-i; Du Toit: Straf in Suid-Afrika at
161; Terblanche & Roberts: 'Sentencing in South Africa: lacking a principle, but delivering justice?'
2005 SACJ 187 at 195.
9 S v Rooi; S v van Neel 1980 (1) SA 363(C). This is also the position in comparable foreign
jurisdictions; cf R v Gardiner [1982] 368 S.C.R 2; R v Newton (1982) 4 Cr. App. R(S) 388; R v Donges
& Sutton [2007] SADC 88.

within an accused's personal knowledge and which are often incontrovertible
by the State. But different considerations apply as far as the nature and
circumstances of the crime is concerned. The prosecutor would be fully
conversant with these aspects from the docket contents. Any ex parte
averments from the defence at variance with the state's information ought to
be unequivocally disputed. An accused and his or her legal representative
should be alerted timeously about disputed facts, so that an accused can be
afforded an opportunity to adduce oral evidence on such facts.

[10] Prosecutors are duty bound to assist the sentencing court by placing all
known aggravating and mitigating circumstances before the court, particularly
so in the case of an unrepresented accused.10 The following prosecutorial
guidelines are apposite:11
'It is the duty of the prosecutor to ensure that sufficient facts are placed before the
court for it to impose an appropriate sentence. In this regard prosecutors must
ensure that the court is informed of the existence of aggravating and (particularly
where the accused is undefended) mitigating factors'.

[11] The sentencing phase in a criminal trial is of no less importance than
the preceding determination of the guilt or otherwise of the accused. All too
often prosecutors adopt a lackadaisical approach to sentence, permitting ex
parte averments to be made willy nilly in the defence's submissions from the
Bar, notwithstanding that it is at variance with the information in the docket.
This is particularly so in the case of the circumstances of the offence of which
the accused had been convicted. Quite often this is attributable to slothfulness
on the part of prosecutors. It is a practice which must be deprecated, since it
does not serve the interests of the justice system.

[12] Turning from the general to the specific – in this matter strong reliance
was placed on behalf of the appellant on the cases of R v Shuba12, S v
Mabala13 and S v Caleni14. Reference was also made to S v Sanei15 wherein

10 R v Motehen 1949 (2) SA 547 (A) at 550.
11Contained in part 31 para 3 of the National Prosecuting Authority's Policy Document.
12 1958 (3) SA 844 (C) at 844H-845A.
13 1974 (2) SA 413(C) at 421H-422A.

Masipa J, with reference to S v Siebert, above, affirmed the duty on a
presiding officer to investigate all the relevant circumstances at sentencing
stage. Shuba, Mabala and Caleni are of no assistance to the appellant in the
present matter. In all three cases, the State and/or the presiding officer
accepted (at the very least tacitly) the ex parte averments from the Bar. The
various dicta in these cases hold that, unless unattested factual averments
are disputed or queried, a presiding officer must accept same. But the present
case is materially different in this respect. During the course of her address on
sentence, the prosecutor unequivocally took issue with some of these factual
averments. So, for example, she placed on record oral communications from
certain of the complainants and, in one instance, referred to the evidence of a
complainant before court, that the appellant had not in fact compensated them
for their losses (as was claimed on his behalf). She pertinently challenged the
averment that the appellant had not acted for personal gain and she
submitted that the appellant himself should shoulder the blame for the fraud
and not Richter. The regional magistrate did not take these disputed factual
averments into account in appellant's favour during his judgment on sentence.

[13] In S v Jabavu16 the trial court had relied on evidence taken at the
preparatory examination (under the previous Criminal Procedure Act, 56 of
1955) where the accused had pleaded guilty and where no evidence on
sentence had been led. On appeal a similar contention to the one in the
present case was advanced, namely that, in the absence of any comment
from the prosecutor on the appellant's counsel's submissions, the trial court
was obliged to accept the facts emanating from the ex parte submissions. In
distinguishing the facts in that case from those in R v Hartley17, Botha JA
held18 that no such obligation existed since the facts adumbrated by counsel
ex facie the appellant's confession had not been accepted by the State.

14 1990 (1) SACR 178 (C) at 181f-g.
15 2002 (1) SACR 625 (W) at 627g-628a.
16 1969 (2) SA 466 (A).
17 1966 (4) SA 219 (RA).
18 At 472B-D.

[14] Ultimately considerations of fairness will be the deciding factor in a
determination of whether an accused person has been prejudiced by a refusal
to elevate unattested factual averments contained in an ex parte address on
sentence to proved facts.19 Cele and Heslop do not support the appellant's
contentions, as they are distinguishable on the facts. In Cele the trial judge
had disregarded intoxication as an extenuating circumstance, even though the
accused had made mention of his intoxicated state in his s 112(2) plea
explanation. On appeal, this Court (per Nestadt JA) held that this constituted a
misdirection – the trial judge should have conveyed to the defence that he
was not prepared to take into consideration the accused's state of intoxication,
so that the accused could be afforded an opportunity to establish that
averment under oath.20 In Heslop, the trial judge had drawn an adverse
inference against the accused on matters not canvassed in evidence. On
appeal Cloete JA held that it is a requirement of an accused's fair trial right
under s 35(3) of the Constitution that if a court intends drawing an adverse
inference against an accused, the facts upon which this inference is based
must be properly ventilated during the trial before the inference can be
drawn.21

[15] Considerations of fairness will also determine whether an accused's
right to a fair trial has been violated in terms of s 35(3) of the Constitution.
Counsel's submission in this regard is that the appellant did not have a fair
trial, since adverse inferences had been drawn against him, without the facts
in respect of those inferences having been ventilated at the trial (this did not
form part of the grounds of appeal listed in the appellant's notice of appeal).
This submission can be dismissed without more. Section 35(3)(i) of the
Constitution entrenches an accused person's right to adduce and challenge
evidence at his or her trial. No violation of this right has occurred in the
present case, as I have demonstrated above.

19 Jabavu at 472E-F.
20 At 254h-j.
21 Para 22.

[16] When it became evident during the prosecutor's address that some of
the material factual averments advanced on the appellant's behalf were being
challenged by the prosecutor, it was open to the appellant's counsel to make
a re-assessment in consultation with his client. An opportunity for such re-
assessment presented itself when the time came for counsel to reply to the
prosecutor's address. By not adducing oral evidence in the face of these
challenges, counsel took a calculated risk that the court may not accept the
unattested disputed material factual allegations. By electing to simply proceed
with an oral address in reply, counsel consciously passed on the opportunity
to adduce oral evidence. In these circumstances, there has not been any
misdirection by the trial court, nor can the approach of the high court be
faulted. It follows that there can also be no sustainable challenge on
constitutional grounds, more particularly on s 35(3) of the Constitution.

[17] The sentence was accordingly properly considered by the trial court
and the high court with the exclusion of the various mitigating circumstances
advanced ex parte but challenged by the State. In the absence of a material
misdirection by the trial court, I turn to a consideration whether the sentence
imposed is excessive.

[18] The State adduced the evidence of two witnesses on sentence, viz Ms
Kutala Sikweza and Mr Madoda Jeke. Ms Sikweza is the daughter of the
complainant in count 3, who lost R177 000 which was supposed to have been
invested at Old Mutual. This amount was the proceeds of life policies of Ms
Sikweza's late brother and his wife who died in a motor vehicle accident. The
returns on the proposed investment at Old Mutual was intended to provide a
monthly income to the deceased couple's three young children who were in
the complainant's care. Mr Jeke, a 68 year old retired policeman, had
received the sum of R330 000 as a globular pension payout after 36 years'
service. This money he entrusted to the appellant for investment with Old
Mutual so that Mr Jeke could obtain a monthly income for himself and his
dependants.

[19] The tale narrated by these witnesses is a poignant rendition of severe
hardship and suffering. Their plight appears to be representative of all the
complainants' circumstances. The appellant defrauded poor people, many of
whom were dependent on these monies to support themselves and/or needy
dependants. In Mr Jeke's case, the reward for a lifetime's toil had been lost as
a result of the fraud, leaving him penniless and resulting in Mr Jeke having to
sell his cattle and to go around with begging bowl in hand in a quest to
survive. The gravity of the offences is beyond question.

[20] Richter's alleged role in the fraud was described by the appellant in his
plea explanation, amplified by the written address on sentence, as set out in
para 3 above. After the default in paying over the complainants' money,
Richter's business (it is not clear if this was conducted through a close
corporation or a company), was placed under liquidation on the application of
FNB. Most of the complainants were subsequently compensated by FNB
when the frauds and concomitant losses became known to the bank.

[21] It can be accepted that the appellant's personal circumstances are
mitigating – he is a first offender with fixed employment and with a wife and
adopted daughter who depend on him for their livelihood. One must accept in
his favour that his plea of guilty is indicative of a measure of remorse. But, like
the trial court and the high court I do not accept in the appellant's favour the
disputed ex parte factual averments that the appellant repaid all the
complainants, that Richter was mostly to blame for the commission of these
offences and that the appellant did not act out of self-interest. These are
matters which required proof by way of oral evidence so that it could be tested
by cross-examination. Moreover, there is direct evidence controverting the
averment that the appellant had compensated all the complainants. The
complainants in counts 4 and 5 had not been reimbursed and the appellant's
counsel was constrained to withdraw his earlier submission to this effect when
he replied to the prosecutor's address at the trial. Richter's alleged
blameworthiness raised more questions than answers. The averment that the
appellant was not actuated by self-interest in committing the various instances
of fraud, was pertinently contested by the prosecutor in her address. The

evidence of Ms Sikweza furthermore directly contradicted the appellant's ex
parte assertion that he reported these matters to the police first. On Ms
Sikweza's uncontested version a criminal charge was laid some 3 months
before the appellant allegedly reported the matters.

[22] The trial court was left in the dark on Richter and the appellant's
precise modus operandi.  The trial court had no information whatsoever about
the amounts received by the appellant and, as was alleged by the appellant,
by Richter. No explanation was forthcoming why the appellant, who on his
own version earned approximately half a million Rand annually as a financial
adviser, had to misappropriate (at least some of) the monies entrusted to him.
He would have earned handsome commission on the investments if they had
been made by the appellant as instructed by the complainants.

[23] What is plain is that the appellant abused the trust that the six
complainants placed in him. They were by and large poor, less educated
simple folk who entrusted what to them must have been princely sums, to the
appellant for secure investment for the betterment of their lives and that of
their dependants. It bears mention that both complainants, Mrs Sikweza and
Mr Jeke, had been referred by social workers to the appellant for financial
advice.

[24] The approach of this court to sentencing in so-called 'white collar
crimes is well-established.22 Direct imprisonment is not uncommon, even for
first offenders. The sentence imposed in the present matter does not induce a
sense of shock at all. On the contrary, I share the view of Alkema J in the
court below that the sentence borders on the lenient. The trial court balanced
the aggravating and mitigating factors and gave recognition to the factors
favourable to the appellant by suspending a portion of the sentence of
imprisonment. It ameliorated the cumulative effect of the sentence by taking
the six counts together for purposes of sentence.

22 See  S v Sadler 2000 (1) SACR 331 (SCA); ([2000] 2 All SA 121); [2000] ZASCA 13 paras 11-13,
S v Barnard 2004 (1) SACR 191 (SCA); [2003] ZASCA 63 para 15, S v Michele 2010 (1) SACR 131
(SCA); [2009] ZASCA 116 para 10.

[25] There are no grounds to interfere with the sentence. In the result, the
appeal is dismissed.
…………………..
S A MAJIEDT
ACTING JUDGE OF APPEL

APPEARANCES:

FOR APPELLANT:
S D Slabbert

Instructed by

J H Slabbert Attorneys,  Durban North

Van Wyk & Preller Inc, Bloemfontein

FOR RESPONDENT:
T van Zyl

Instructed by
The Director of Public Prosecutions, Grahamstown

The Director of Public Prosecutions, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN SUPREME
COURT OF APPEAL

FROM:
The Registrar, Supreme Court of Appeal

DATE:
31 MARCH 2010

STATUS:
Immediate

Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.

LOUIS JOHANN OLIVIER V THE STATE

The Supreme Court of Appeal (SCA) today dismissed an appeal by the appellant, Mr
Louis Johann Olivier, against the sentence imposed on him by the Regional Court at
East London for six counts of fraud, viz 7 years imprisonment, of which three years
had been conditionally suspended. The SCA held that where an accused's legal
representative makes factual averments in his oral address on sentence which are
disputed by the prosecutor, a Court cannot take such averments into account in
considering an appropriate sentence since they bear no evidentiary weight.

The SCA held that, notwithstanding the appellant's favourable personal
circumstances, in view of the gravity of the offences, particularly that the fraud had
been perpetrated over a considerable period against poor, uneducated people who had
entrusted substantial sums of money to the appellant for investment, warranted direct
imprisonment. As a result the appeal was dismissed and the sentence imposed by the
Regional Court was confirmed.