Olivier v The State

The appellant, Louis Johann Olivier, was a financial adviser operating as a sole member of Louis Olivier Financial Services CC (trading as 'the Brokerage') in East London. He was convicted on a guilty plea in the regional court at East London on six counts of fraud committed over approximately one year from 18 February 2002 to 5 February 2003. The total amount lost through the fraud was R807,000. In his written plea explanation, the appellant admitted receiving money from six clients for secure investment with either Sanlam or Old Mutual. Contrary to their express instructions, he handed the money to Shane Richter, one of his clients who owned Mini Stores. Richter deposited the money into his account at FNB Kingwilliamstown through a special arrangement with a specific teller. Richter did not pay over the full proceeds, causing loss to the complainants. The victims were mainly poor, less educated people who had entrusted significant sums to the appellant - including a retired policeman who lost his R330,000 pension payout after 36 years' service, and proceeds from life policies intended to provide for three orphaned children. The regional court sentenced him to seven years' imprisonment, with three years suspended for four years on condition that he not be convicted of fraud or theft during the suspension period. An appeal to the Eastern Cape High Court (Jones and Alkema JJ) was unsuccessful.

• What evidentiary weight should be attached to ex parte factual submissions made by counsel from the Bar during the sentencing phase of a criminal trial?
• Whether the trial court was obliged to accept unattested factual averments made in ex parte submissions on sentence when the prosecutor did not initially object but later challenged them
• Whether the appellant's fair trial rights under s 35(3) of the Constitution were violated when the trial court drew adverse inferences without the facts being properly ventilated through oral evidence
• Whether the sentence of seven years' imprisonment (three years suspended) was appropriate and not excessive for six counts of fraud involving R807,000

The appeal against sentence was dismissed. The sentence of seven years' imprisonment, of which three years were conditionally suspended for four years (on condition of no conviction for fraud or theft during the suspension period), was confirmed.

Material factual averments made during the sentencing phase of a criminal trial ought, as a general proposition, to be proved on oath. While uncontested minor matters regarding an accused's personal circumstances may be dealt with through ex parte submissions from the Bar, different considerations apply to the nature and circumstances of the crime. Where a prosecutor unequivocally disputes material factual averments made ex parte by the defence during submissions on sentence, the sentencing court is not obliged to accept those unattested averments as proved facts. When it becomes evident that material factual averments are being challenged by the prosecution, it is open to defence counsel to adduce oral evidence to prove those facts. If counsel elects not to do so, this constitutes a calculated risk that the court may not accept the unattested disputed allegations. This does not constitute a violation of an accused's fair trial rights under s 35(3) of the Constitution, as the accused had the opportunity to adduce evidence but chose not to do so. Prosecutors have a duty to assist the sentencing court by placing all known aggravating and mitigating circumstances before the court and must unequivocally dispute any ex parte averments at variance with the State's information, particularly regarding the circumstances of the offence.

The Court made several important non-binding observations. Majiedt AJA noted that it has become common practice for ex parte submissions to be made from the Bar on sentence, often containing material averments impacting sentence considerations, and that prosecutors would only rarely convey whether these submissions are disputed, which complicates matters. The Court deprecated the lackadaisical approach often adopted by prosecutors to sentencing, permitting ex parte averments at variance with docket information, attributing this to slothfulness. The judgment emphasized that the sentencing phase is of no less importance than the determination of guilt. The Court observed that there is no practice in South African law whereby counsel may simply place ex parte facts before a sentencing court, invite the State to object, and in the absence of objections, obligate the court to accept these as proven facts. If such a practice exists, it should be discouraged as it is open to abuse and has no place in our jurisprudence. The Court noted that prosecutors are duty bound to assist sentencing courts, particularly in cases involving unrepresented accused persons, by placing all aggravating and mitigating circumstances before the court. On the substantive sentence, the Court observed that the sentence 'borders on the lenient' given the gravity of the offences involving vulnerable victims and abuse of trust.

This case is significant in South African criminal procedure law for clarifying the evidentiary weight to be attached to ex parte submissions made by counsel from the Bar during sentencing. It establishes important guidelines on prosecutorial duties during sentencing and the circumstances in which unattested factual averments will or will not be accepted by sentencing courts. The judgment emphasizes that: (1) prosecutors have a duty to dispute ex parte averments at variance with docket information timeously; (2) material factual averments impacting sentence should generally be proved on oath; (3) an accused bears the risk if counsel makes ex parte submissions on disputed facts without adducing oral evidence; and (4) considerations of fairness determine whether an adverse inference can be drawn. The case also reinforces the approach to sentencing in 'white collar crime' cases, confirming that direct imprisonment is appropriate even for first offenders who abuse positions of trust, particularly when victims are vulnerable persons. It serves as a caution against the practice of making unattested factual submissions on sentence and clarifies when such practice may prejudice an accused.