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[2010] ZASCA 48
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Olivier v S (318/09) [2010] ZASCA 48; 2010 (2) SACR 178 (SCA) ; [2010] 4 All SA 503 (SCA) (31 March 2010)
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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 â
evidentiary weight of
ex parte
submissions
from the Bar â six counts of fraud â 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.
[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.
[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 trial court as proved facts. Relying
on this court's decisions in
S
v Cele
5
and
S
v Heslop
6
,
counsel submitted that, in the context of the appellant's fair trial
right
7
,
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 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 â in this matter strong reliance was placed on behalf of
the appellant on the cases
of
R
v Shuba
12
,
S v Mabala
13
and
S v Caleni
14
.
Reference was also made to
S
v Sanei
15
wherein 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 Jabavu
16
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 Hartley
17
,
Botha JA held
18
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] 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 â 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.
[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 â 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.
[25] There are no grounds to interfere with the
sentence. In the result, the appeal is dismissed.
â¦â¦â¦â¦â¦â¦â¦
..
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
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.
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.
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.
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:
S
traf in
Suid-Afrika
at 161;
T
erblanche
& 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.
10
R v Motehen
1949
(2) SA 547
(A) at 550.
11
Contained
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.
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.
19
Jabavu
at
472E-F.
20
At 254h-j.
21
Para 22.
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.