Chaplin v Fine and Another (A115/2019) [2020] ZAWCHC 139 (21 July 2020)

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[2020] ZAWCHC 139
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Chaplin v Fine and Another (A115/2019) [2020] ZAWCHC 139 (21 July 2020)

THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION)
JUDGMENT
Appeal
Case No: A115/2019
Court
a quo
Case No: 5376/2018
In
the matter between
COLIN
IAN CHAPLIN
APPELLANT
And
LAUREN
FINE
FIRST
RESPONDENT
SHERI
COHEN
SECOND
RESPONDENT
Coram:
Erasmus, Steyn and Rogers JJ
Heard
:
15 May 2020
Delivered:
21 July 2020 (by email
to the parties)
[By
arrangement with the parties, this judgment was not placed on SAFLII
pending finalisation of the appellant’s application
to the
Supreme Court of Appeal for special leave to appeal. That application
was dismissed on 12 October 2020.]
JUDGMENT
Rogers
J (Erasmus and Steyn JJ concurring)
[1]
The appellant, Mr Colin Chaplin,
was the respondent in the court
a
quo
in an application
brought by the present respondents, Ms Lauren Fine and Ms Sheri
Cohen, for his committal for contempt of court.
Chaplin appeals
against the ensuing judgment in which (a) he was found guilty of
contempt by breaching two previous court
orders; (b) he was sentenced
to six months’ imprisonment for the said contempt; (c) a
suspended sentence of six months’
imprisonment on a previous
finding of contempt was put into operation, the sentences in (b) and
(c) to run concurrently; and (d)
he was ordered to pay the costs of
the present respondents on the scale between attorney and client,
including the costs of two
counsel.
[2]
For the sake of brevity, and
meaning no disrespect, I refer to the people who feature in the
narrative by their surnames. I refer
to Fine and Cohen collectively
as the ‘applicants’, as they were in the court
a
quo
.
[3]
The conduct alleged to constitute
the contempt takes the form of abusive and threatening writings to
and about Fine and Cohen. The
main issues in the appeal are: (a)
whether it was proved beyond reasonable doubt that Chaplin was the
author of the writings; (b)
if so, whether the court
a
quo
erred by imposing
sentence as part of its judgment on the merits. On the first issue,
Chaplin denies his authorship of the writings.
On the second issue,
he contends that the court
a
quo
should have
followed a two-stage procedure: in the first stage the court should
have dealt only with ‘conviction’, leaving
sanction (if
it arose) to a second hearing.
[4]
The application giving rise to
the present appeal, launched in 2018, was the third against Chaplin
in connection with abusive writings.
The first, launched in December
2011, gave rise to an agreed order (without admission of
responsibility) later that month. The
second, instituted in July
2017, led to an order granted in August 2017 (the outcome of which
Chaplin abided).
[5]
Although the 2011 and 2017 orders
stand as valid orders, Chaplin denies that he was responsible for the
abusive writings which were
the subject of those applications. Their
authorship has an important bearing on whether Chaplin was the author
of the writings
which led to the 2018 application.
[6]
I reproduce quoted extracts from
the disputed writings exactly as written, replicating mis-spellings,
punctuation and capitalisation.
[7]
Chaplin went to a prestigious
Cape Town school, spent three years at Stellenbosch University
studying Economics, obtained an LLB
(Hons) in England, and returned
to Cape Town where he has engaged in property development and
literary services under the name
Woodleys. In respect of literary
services, his LinkedIn profile states that Woodleys’ core area
of expertise is in ‘project
managing new publications from
inception to completion’. Woodleys is said to offer
‘specialised outsourced literary
services for local and
international publishing companies’. His qualifications include
a diploma in Advanced Editing.
[1]
[8]
Fine has at all material times
been a practising attorney. Cohen, her sister, is in public
relations.
[9]
Since 2011 Fine, and later Cohen
as well, became the targets of unlawful harassment in the form of
abusive and threatening letters,
emails and posts on Facebook and
consumer platforms. The only question is authorship.
The
2011 application
[10]
In 2008 / 2009 a Ms
Danielle Vermaas was in a romantic relationship with Chaplin. From
correspondence Vermaas wrote to
Chaplin in 2009 it appears that
Chaplin did not want to continue the relationship but that she did.
[11]
Fine and Chaplin dated for a few
months as from November 2009. She terminated the relationship
sometime in the first half of 2010.
According to her, Chaplin tried
to rekindle the romance by displaying solicitude for Fine’s
mother, Merle, who had recently
been diagnosed with terminal cancer.
Chaplin regularly visited Fine’s mother unsolicited and against
Fine’s wishes.
He also made contact her, her friends and her
family.
[12]
In August 2010 Chaplin accused
Vermaas of causing trouble for him on social media and blamed her for
the fact that Fine had blocked
him on Facebook and was not responding
to his SMSes. Vermaas, on the other hand, claimed that Chaplin sent
her threatening messages
about her supposed interference with his
‘girlfriend’.
[13]
On 10 August 2010 Vermaas
messaged Fine, saying that she would not normally email someone she
did not know but that she had received
a very strange SMS from Fine’s
‘boyfriend’ (Chaplin) who seemed to be upset about
‘mutual people we know
on Facebook’. Fine met with
Vermaas a few days later. Vermaas told Fine that Chaplin had
threatened to bring a court application
against her. Fine says that
it emerged from the conversation that Chaplin had dated her and
Vermaas simultaneously. (This seems
not to have been the case, so
Vermaas may not have been truthful with her.) Vermaas told Fine that
notwithstanding Chaplin’s
threats, she retained feelings for
him. Fine responded that she wanted nothing to do with Chaplin, and
that Vermaas was welcome
to pursue a relationship with him. They
parted on friendly terms.
[14]
On 27 September 2010 Chaplin paid
Fine’s mother another unsolicited visit. Fine gathered from her
mother that the latter had
confronted Chaplin about the two-timing
allegation. Fine was worried about how Chaplin might react to
information that she and
Vermaas had met. She warned Vermaas. The
latter expressed concern that Chaplin might harm her. Fine told her
that if that is how
she felt she could apply for a restraining order
but that she (Fine) did not want to act for her or be involved.
[15]
On 29 September 2010 Vermaas
applied to the Cape Town Magistrate’s Court for an interim
protection order against Chaplin in
terms of the
Domestic Violence
Act 116 of 1998
. In her statement in support of the order, she
alleged that Chaplin had been defaming her and subjecting her to
psychological abuse.
From what Chaplin told a
Noseweek
journalist about a
year later, it appears that an interim
ex
parte
order was
granted. Chaplin opposed the application, and it served before court
on 3 November 2010. According to Chaplin, Vermaas
withdrew the
application.
[16]
During February 2011 Chaplin made
contact with Mia Gibson, a friend of Fine’s who was an attorney
at
Bernadt
Vukic Potash
&
Getz (‘BVPG’). He wrote her long emails, displaying
concern for Fine and accusing Vermaas of stalking him. One
of his
emails included a screenshot from Vermaas’ Facebook account.
[2]
[17]
Over the period 20 February –
1 March 2011 several abusive Facebook messages and emails were sent
to Fine’s acquaintances
and family, purporting to come from
Vermaas.
[3]
On 1 March 2011 BVPG (Gibson)
sent Vermaas a letter demanding that she desist. Vermaas replied that
her Facebook and Gmail accounts
had been hacked and that she was busy
laying a charge against a suspect (this was Chaplin). It is evident
that at this time (early
March 2011) Fine, Cohen and their friend
Alexandra Burger entertained the possibility that Vermaas might be
behind the early 2011
writings, and were suspicious of both Chaplin
and Vermaas.
[18]
The criminal charge led to
further emails from Chaplin to Gibson. There was also a telephone
call in which Chaplin continued his
accusations against Vermaas.
During this conversation, Gibson confronted Chaplin with the fact
that only a person with access to
Vermaas’ password-protected
Facebook account could have obtained the screenshot he had emailed to
her in February. On Fine’s
version, as confirmed by Gibson,
Chaplin initially claimed that he had got this document from someone
investigating Vermaas but
later alleged that the information had been
delivered to his flat anonymously. Gibson made it plain to Chaplin
that Fine wanted
nothing to do with him and that continued harassment
could lead to legal proceedings.
[19]
In late August 2011 an article
appeared in
Noseweek
under the title
‘Trivial Pursuit’.
[4]
It appears from this article that
the journalist interviewed Chaplin. The article alleged among other
things that Vermaas and Fine
had teamed up to get a restraining order
against him and that Vermaas’ statement in support of the order
had contained many
untruths. The article portrayed Chaplin as a
victim.
[20]
In the closing months of 2011
there was a slew of abusive writings directed at Fine and BVPG (‘the
2011 writings’).
Some were anonymous, others under assumed
names. Those documents which were in hardcopy were addressed to
BVPG’s postal address,
using similar stationery.
[21]
Fine suspected Chaplin, and
reported the matter to the police. She also obtained a report from an
expert, Ms Yvette Palm, who found
that all the 2011 writings emanated
from the same printer and that there was strong evidence that they
were written by the same
author.
[22]
On 6 October 2011 the police
executed a search warrant at the homes of Chaplin and his parents.
Various items were seized (documents
and computers), but were
returned a week later, without having been examined, because the
warrant was defective. Fine alleged that
the search was part of the
police investigation into Vermaas’ hacking complaint. Chaplin
alleged that the search related
to Fine’s harassment complaint,
and that was certainly an aspect of interest to the investigating
officer, Capt Marx, because
Ms Palm was present during the search. No
printers were seized because Ms Palm was satisfied that the printers
in question had
not been used to generate the 2011 writings.
[23]
In December 2011 a follow-up
article appeared in
Noseweek
.
[5]
This continued to portray Chaplin
as a victim of unfounded legal action at the hands of Fine and
Vermaas.
[24]
According to affidavits by Fine
and her client, Sylvia
Ireland
,
Chaplin arrived at Ireland’s home on the evening of 13 December
2011 to convey a warning to Fine that he intended to ‘run
with
a story’ that would destroy Fine but that she had a ‘way
out’, namely to blame everything on Vermaas, in
which case
Chaplin could ‘save’ her.
[25]
On the following day, 14 December
2011, Fine launched an urgent application for an interdict. Chaplin
filed what the court
a
quo
described
[6]
as a brief ‘preliminary
answering affidavit’. On 20 December 2011 the matter was
settled by an agreed order (‘the
2011 order’)
[7]
in terms whereof neither party
was to contact the other or the other’s colleagues, friends,
family and clients, or ‘to
make any untruthful disparaging
statements regarding each other to any third parties’. It was
recorded that the order was
not to be construed as an admission of
any fact or corroboration of any allegations contained in either
party’s papers.
The
2017 application
[26]
For more than three years there
were no abusive writings. However, the harassment resumed in March
2015, gathering pace and continuing
until further proceedings were
launched in July 2017. Because these writings formed the subject
matter of the 2017 application,
I shall refer to them as the ‘2017
writings’ though they spanned the years 2015 –
2017.
[27]
One category of the 2017 writings
were numerous posts on websites which provide platforms for consumer
complaints –
hellopeter
,
pissedconsumer
,
complaintsboard
,
badservicesouthafrica
,
ripoffreport
and
gripeo
.
The earliest one in the record is dated 23 April 2015.
[8]
These posts,
in repetitively similar formulations, alleged that Fine, Gibson,
Andrea Keller (also an attorney), BVPG and Norton
Rose Fulbright
(‘NRF’, the firm which Fine had joined) had given very
bad service, were rude and unhelpful, that they
should be
investigated by the Cape Law Society (‘CLS’), and that
clients should take their business elsewhere. In Fine’s
case,
it was repeatedly claimed that she had been ‘named and shamed’
in
Noseweek
and that she
had brought the legal profession into disrepute.
[28]
There were
also many complaints about Cohen and her employer, Corporate Image,
alleging that the ‘customer’ had received
very bad
service, that Cohen was rude and unhelpful, and that customers should
take their business elsewhere.
[29]
These
‘complaints’ were posted under assumed names. Some were
evidently made up.
[9]
Others were
suggestive of a connection between the complainant and the families
of Fine and / or Vermaas.
[10]
There were
posts under other names as well, even
Noseweek
’
s
editor, Martin Welz. Only one was a real person known to Fine,
viz
Sharon
Boonzaaier, who confirmed under oath in the 2017 application that she
had had nothing to do with the complaint.
[30]
It is clear
from the evidence that none of these were genuine consumer
complaints. They were not from people who were clients of
Fine or
Cohen. Cohen serviced only a single client through a single point of
contact, and was on friendly terms with that person.
[31]
The other
category in the 2017 writings were Facebook messages. The earliest of
these in the record is dated 12 January 2016.
[11]
Some were
anonymous, others under made-up names
[12]
or names
suggestive of a connection between the writer and Fine and / or
Vermaas.
[13]
There are also
posts under another names.
[32]
Whereas the
‘consumer complaints’ purported to be from dissatisfied
clients, the abusive Facebook posts intentionally
created the
impression that Vermaas’ mother was the author. The unifying
theme was that Fine had hurt Vermaas by taking Chaplin
away from
Vermaas; that in the process Chaplin had insulted the feelings of the
writer’s daughter; that the writer had needed
to take revenge
by making Fine sever her relationship with Chaplin; that this was
done by getting Fine to help Vermaas bring an
application for a
restraining order and by feeding lies to Fine about Chaplin; that a
further step in the strategy was to send
anonymous writings which
Fine would attribute to Chaplin; that after this strategy succeeded,
Fine herself, and then her sister
and her sister’s children,
needed to be punished; and that part of the punishment was to post
abusive consumer complaints.
[33]
These posts
were characterised by recurring tropes: that the writer would not
allow Fine to ‘bully’ Vermaas; that Fine
was a ‘silly’
or ‘stupid’ ‘little girl’; that the writer
had to make Fine believe that Chaplin
was a ‘bad person’;
that the writer wanted to ‘hurt’ Chaplin; that the
writer’s strategy was a good
‘joke’; that the
writer had so enjoyed ‘playing’ Fine and Chaplin off
against each other; that the writer
had left ‘clues’;
that these clues had included references to
Farmers
Weekly
,
vultures, the ‘onion award’ and citrus farming; that
Chaplin had been able to ‘solve’ the clues but Fine
had
not; that Chaplin had been ‘innocent’ but Fine had been
fooled into thinking otherwise; that Chaplin had always
cared for
Fine’s mother, which Vermaas had hated; that Fine had been
‘embarrassed’ and would do anything to make
it appear
that the abusive writings came from Chaplin; that the strategy had
worked so well that each time a new abusive message
was posted, Fine
would be forced to take action against him; and that Fine was just as
‘guilty’ as the writer.
[34]
Among the
‘clues’ left by the author as to the supposed writer’s
identity were the following (some of these messages
were directed at
Fine, others at Cohen):
12
January 2016
:
[14]
‘
My
brother in law is a farmer!!!!!’
25
May 2016
:
[15]
‘
I know
my daughters hearts just like your mother knew your sisters heart.’
15
June 2016
:
[16]
‘
Do you
know why I used Farmers Weekly pictures??? Because my family are
farmers!!!!!!’
2
August 2016
:
[17]
‘
My
daughter now has a good life and your sister is just a JOKE to
evryone.’
31
August 2016
:
[18]
‘
Do you
know that it wasnt Lauren Fine that told my daughter how to get a
restraining order it was ME! I got one against my ex husband
…
Here I will give you a clue where I am. I live in a town starting
with a K and ending with a D!!! My daughter now has
her life and a
special career your sister has nothing and is a JOKE!!’
[19]
24
October 2016
:
[20]
‘
You
must understand that the letters allowed Danielle to have a life even
if it meant that Lauren lost hers!!!’
24
October 2016
:
[21]
‘
The
references to Laurens mental issues were things that I have been
diagnosed with and yes I have been in a mental institution
before!!’
(In his email to Sarah Wassall, written in late September 2009,
[22]
Chaplin stated
that there was a history of mental illness in Vermaas’ family
and that her mother had been ‘committed’
several times.
In one of Chaplin’s emails to Gibson in February / March
2010,
[23]
he wrote that
Vermaas’ mother was ‘treated during the 90s for mental
issues’, on his understanding for being bipolar.)
11
November 2016
:
[24]
‘
They
[the
letters]
were
about punnishing Colin Chaplin. He made both my children have to
leave there home. My dauughter had to change her name!!!!!’

(Danielle started using the surname Margeaux.)
6
February 2017
:
[25]
‘
I didnt
buy the Farmers Weekly magazines i borrowed them from my sister!!
Does that help you LAuren??? She is married to a farmer!!
They have
many farms but they dont do animals they farm fruit. I will give you
a clue Lauren it is an orange color!!! Does that
help you
LAuren?????’
15
February 2017
:
[26]
‘
I left
so many clues for you in the letters but you never saw them. It was
the ‘Boomerang’ comment wasnt it?? Thats
how he new it
was me wasnt it! You see Lauren I went to Australia once for a
wedding but you didn’t get that did you!!!’
21
February 2017
:
[27]
‘
You are
just as guilty as we are so dont try and bully Danielle by taking
away her facebook friends!!’
31
May 2017
:
[28]
‘
... and
only Danielle has family that are farmers doesnt she!!’
[35]
In an attempt to find conclusive
evidence about who was behind the abusive posts, Fine made requests
for information under the
Promotion of Access to Information Act 2 of
2000
. On several occasions she obtained orders, in terms of the
Protection from Harassment Act 17 of 2011, requiring service
providers
to supply particulars about computers from which abusive
posts had been uploaded, which led her to various internet cafes.
[36]
At first these enquiries were a
dead-end because the internet cafes were not able to tell her who had
used the computers on the
relevant dates. But eventually her
persistence was rewarded. An order pertaining to abusive posts
uploaded on 21 February 2017,
one of which was time-stamped 08:15,
led her to an internet cafe in Constantia called Wizardz, from which
she obtained CCTV footage
for the period before and after 08:15 on
that date. Stills from this footage were attached in subsequent legal
proceedings. A person
whom Fine identified as Chaplin could be seen.
He was at Wizardz for about one hour, entering as soon as the
establishment opened
at 08:00. He sat at a single computer for an
hour, and during that period only one other patron, who was there for
ten minutes,
entered the cafe.
[37]
In June 2017 Fine obtained an
expert report from Professor E F Kotzé, a linguist. Kotzé
examined a selection of authentic
Chaplin writings as well as all the
contentious 2011 and 2017 writings. He concluded that Chaplin was the
author of the 2011 and
2017 writings.
[38]
On 7 July 2017 Fine and Cohen
instituted an application for an interdict, a finding that Chaplin
was in contempt of the 2011 order
and a suspended sentence of six
months’ imprisonment. Chaplin, represented by attorneys, filed
a notice of opposition. On
28 July 2017 an order was made by
agreement in terms whereof Chaplin was to show cause on 22 August why
the relief sought in the
notice of motion should not be granted and
in which, without admission of responsibility, he agreed that the
rule would operate
as an interim interdict.
[39]
On 14 August 2017, by which date
Chaplin had not filed answering affidavits, Chaplin’s attorneys
filed a notice of withdrawal
as his attorneys. On the same day
Chaplin filed a notice of intention to abide which stated that he was
unable to oppose the matter
due to lack of financial resources; that
his failure to oppose should not be construed as an admission of the
applicants’
allegations; that he reserved the right to deal
with such averments at a later time, if necessary; and that he was
willing to supply
any fingerprint and DNA samples that might
reasonably be required.
[40]
Fine’s attorneys, NRF,
immediately notified Chaplin that if he failed to answer the
applicants’ averments they would
be deemed to be admitted; that
his notice to abide was not sufficient to place the applicants’
allegations in issue; that
it was impermissible for him to reserve
his rights to deal with the averments at a later time, and that he
should deal with them
now if at all.
[41]
There was no further response
from Chaplin and he did not appear in court on 22 August 2017. Le
Grange J thereupon made the rule
nisi final, found Chaplin in
contempt of the 2011 order and imposed a suspended sentence of six
months’ imprisonment. Chaplin
was ordered to pay the
applicants’ costs on the attorney and client scale, including
the costs of two counsel. He was also
ordered to remove all offending
posts he had published on the internet and Facebook. He was required
to file an affidavit setting
out compliance with this order. On 15
September 2017 he filed an affidavit, stating that he had furnished
his attorneys with a
power of attorney to take the necessary steps,
and particulars of those steps were set out. The applicants say that
they were dissatisfied
with the adequacy of these steps but were
advised not to pursue contempt proceedings.
The
2018 application
[42]
Following the 2017 order there
was a respite of about six months. But on 14 February 2018 Cohen, who
worked at her employer’s
Johannesburg office, learnt that six
letters for her attention had been delivered at her employer’s
Cape Town office. Since
she had been at the Cape Town office in
January, these letters must have arrived later in January or in the
first two weeks of
February. Fine collected and opened the envelopes.
They were found to contain more abusive writings. Fine’s father
found
a seventh letter in his letter box on 26 February 2018. (This
is the address at which Chaplin used to visit Fine’s late
mother.)
One of the enclosures in this envelope was a computer screen
shot. The computer’s date was 14 February 2018.
[29]
[43]
I shall refer to these seven
letters as the 2018 writings. Six of them purported to have been sent
by standard mail, and in those
instances where the postal stamp was
legible, the date stamps reflected dates in early August, before the
granting of the 2017
order. Fine alleged in her founding affidavit
that this was a poorly executed strategy to make it seem that the
letters were sent
before the 2017 order was made. By appearance, the
envelopes showed signs of unusual wear and tear, and were sloppily
sealed. The
perpetrator had evidently used old envelopes and had
hand-delivered them. (The strategy, even if not exposed, would in any
event
have been futile, because by 28 July 2017 there was an interim
order binding on Chaplin.)
[44]
Since Chaplin denied authorship
of the 2018 writings, he did not claim to know when they were sent. I
am satisfied that it was proved
beyond reasonable doubt that these
letters were sent in January / February 2018.
[45]
Fine and Cohen issued the third
application on 27 March 2018. The founding papers included a
supplementary report by Kotzé
in which he opined that the 2017
and 2018 writings were authored by the same person.
[46]
In his opposing affidavit Chaplin
denied being responsible for the 2011, 2017 and 2018 writings. His
answering papers included expert
reports from the following forensic
linguists: Dr Gerald R McMenamin (American), Ms
Lezandra
Grundlingh (South African) and (jointly) Dr Sheila Queralt and Dr
Núria Gavaldà (Spanish). For convenience
I refer to the
two Spanish authors collectively as ‘QG’.
[47]
McMenamin
criticised Kotzé’s methodology but did not undertake his
own analysis.
[48]
Grundlingh
compared the 2011 and 2018 writings with authentic writings of
Chaplin and Vermaas (the latter is referred to in her
report as X),
and concluded that although Chaplin could not with certainty be
excluded as the author of the disputed writings,
there were more
similarities between Vermaas’ writings and the disputed
writings than there were between Chaplin’s
writings and the
disputed writings.
[49]
QG also compared the 2011 and
2018 writings with authentic writings of Chaplin and Vermaas (who
were referred to in their report
as K1 and K2). QG concluded that
there was a ‘high probability’ that the authors of the K1
texts (Chaplin’s known
writings) and the disputed writings were
different people, and that there was a ‘medium-high
probability’ that the
authors of the K2 texts (Vermaas’
known writings) and the disputed writings were the same person.
[50]
Kotzé prepared a further
report, filed as part of the applicants’ replying affidavits,
in which he answered McMenamin’s
criticisms, directed his own
criticisms at the reports of Grundlingh and QG, and gave further
reasons for his opinion Chaplin could
be linked ‘unequivocally’
to the disputed writings.
[51]
Chaplin was permitted to file
supplementary answering affidavits, which included ripostes from
McMenamin, Grundlingh and QG together
with a report from yet another
linguistic expert, Dr Carole Chaski (American). Like McMenamin,
Chaski did not undertake her own
analysis but criticised Kotzé’s
methodology. In her supplementary affidavit, Grundlingh said with
admirable candour
that she did not have the same experience as the
other experts in the case, indeed that this was her first forensic
assignment,
and she acknowledged the justness of some, but by no
means all, of Kotzé’s criticisms.
[30]
[52]
The case was argued before the
court
a quo
,
which delivered judgment for the applicants in the terms previously
summarised. The court
a
quo
refused leave to
appeal but leave to appeal to a full court was granted on petition by
the Supreme Court of Appeal.
The
judgment of the court
a quo
[53]
After summarising the 2011 and
2017 applications, the court
a
quo
observed that it
‘would appear to be strange’ that Chaplin had agreed to
the 2011 order and failed to oppose the 2017
order if the author of
the 2011 and 2017 writings was someone over whom he had no
control.
[31]
[54]
The court
a
quo
then summarised
the 2018 application, and observed that Chaplin had not disputed that
the same person was responsible for the 2011,
2017 and 2018 writings.
From this it followed that, because Chaplin was responsible for the
2011 and 2017 writings, he was also
responsible for the 2018
writings.
[32]
The 2017 order could not have
been granted in the absence of a finding by Le Grange J
that Chaplin was responsible for
the 2017 writings. This, coupled
with the fact that one individual was responsible for all the
harassment, led to the ‘inescapable
conclusion’ that
Chaplin was also responsible for the 2018 writings.
[33]
The learned judge rejected
Chaplin’s reliance on the rule in
Hollington
,
[34]
holding that it did not apply in
the circumstances at hand, since the 2018 application was dependent
on the findings made in the
2017 proceedings.
[35]
[55]
The court
a
quo
said that in any
event the Wizardz footage made it clear beyond reasonable doubt that
Chaplin was responsible for the 2017 writings,
evidence which Chaplin
had failed to answer.
[36]
Chaplin’s literary
qualifications would have enabled him to disguise his authorship,
which reduced the value of the expert
reports.
[37]
Moreover, none of the experts had
suggested that there was more than one author of the abusive
writings, and the CCTV footage established
that Chaplin was that
author.
[38]
The court
a
quo
thus rejected the
notion that Vermaas was responsible for the harassment, which painted
her in a derogatory light and Chaplin in
a favourable light.
[39]
[56]
The court
a
quo
thus found that
Chaplin had violated the 2011 and 2017 orders and had not discharged
the evidential burden of raising a reasonable
doubt as to wilfulness
and
mala fides
.
His contempt had thus been proved beyond reasonable doubt.
[40]
[41]
[57]
The
court
a quo
proceeded to address sanction as
follows:
‘
58.
It is clear that by attempting to conceal his identity [Chaplin]
confirms that he appreciates that his conduct is unlawful.

Unlawfulness and
mala
fides
flow
naturally from [Chaplin’s] conduct in that he has professed a
desire to continue to conduct himself in contempt of the
2011 and
2017 orders by stating for example: “I will wait a few weeks
and then send you some more letters and then write
some NASTY
complaints about you and your sister on the internet”.
59.  As
a consequence the requirements for the triggering of the suspended
sentence ordered by Le Grange J as well as
those for [Chaplin] to be
held in further contempt are satisfied.’
The
court
a quo
’s orders immediately followed these two
paragraphs.
Authorship
of the disputed writings
[58]
It is common ground that because
the applicants were seeking Chaplin’s committal to prison, they
had to establish his breach
of the 2011 and 2017 orders beyond
reasonable doubt
[42]
and that
the
Plascon-Evans
rule applied to genuine disputes
of fact.
If Chaplin was
the author of the 2018 writings, his conduct was undoubtedly a breach
of the 2011 and 2017 orders, and such breach
was undoubtedly wilful
and
mala fide
.
The sole question is whether Chaplin’s authorship was proved
beyond reasonable doubt.
[59]
If one were to disregard evidence
of Chaplin’s alleged authorship of the 2011 and 2017 writings,
the evidence would not show
beyond reasonable doubt that he was
responsible for the 2018 writings, however strong the suspicion might
be. Chaplin’s counsel
submitted that proof that Chaplin was the
author of the 2011 and 2017 writings was inadmissible similar fact
evidence (‘SFE’)
in the 2018 application, because its
sole purpose was to show that Chaplin had a proclivity to author
abusive writings. Counsel
submitted that authorship of the 2011 and
2017 writings was relevant only to an appropriate sanction, something
which would not
arise until it were established beyond reasonable
doubt that Chaplin was the author of the 2018 writings.
[60]
With these submissions I cannot
agree. The ‘rule’ against SFE was discussed in
Savoi
& others v National Director of Public Prosecutions &
another
.
[43]
After considering Commonwealth
jurisprudence, Madlanga J said, of the position in South Africa, that
the ‘real question should
be whether, when looked at in its
totality, evidence of similar facts “has sufficient probative
value to outweigh its prejudicial
effects”; and that is a
matter of degree in each case’.
[44]
[61]
Our courts have been reluctant to
allow SFE for the purpose of proving not only that the accused
committed the crime but that a
crime was committed at all. Where,
however, it is satisfactorily proved by other evidence that the crime
was committed by somebody,
SFE has often been allowed as evidence to
identify the accused as the perpetrator.
[45]
The more unusual the conduct
common to the previous and later incidents, the higher the probative
value of the SFE is likely to
be.
[62]
Here it has been proved beyond
reasonable doubt that Fine and Cohen were the targets of unlawful
abusive and threatening writings
in 2018. It is unusual for two
sisters to become the joint targets of such harassment. If the 2011
and 2017 writings pursue similar
themes and display similar styles to
the 2018 writings, evidence that Chaplin was the author of the 2011
and 2017 writings would
have sufficient probative value to outweigh
any prejudicial effects of admitting the evidence.
[63]
The court
a
quo
dealt with the
merits somewhat perfunctorily. The applicants were seeking to
persuade the court
a
quo
, without the
safeguard of oral evidence, that Chaplin’s denial of his
authorship of the 2011, 2017 and 2018 writings was
false beyond
reasonable doubt. The terms of the 2011 order were such that
Chaplin’s authorship of the 2011 writings could
not be taken
for granted. And unless
res
judicata
/ issue
estoppel was operative, the authorship of the 2017 writings was also
at large. The question of
res
judicata
/ issue
estoppel did not receive attention in the court
a
quo
’
s judgment,
and, for reasons I shall presently explain, I do not think it should
be applied.
[64]
I also do not think that the
expert evidence was categorical that only one person could have been
responsible for all the disputed
writings. Indeed, the 2017 writings
were not even made available to Chaplin’s experts. In essence,
therefore, the court
a
quo
’
s reasoning
rested on the Wizardz evidence. That evidence was certainly powerful,
and perhaps it was enough, but in view of the
high evidential
threshold that had to be met, and Chaplin’s denials and the
substantial body of expert evidence he tendered,
a more rigorous
engagement on the question of authorship was needed and must now be
undertaken.
[65]
This unfortunately lengthens this
judgment because in order to reach a conclusion on the 2018
application we effectively have to
determine the merits of the two
previous applications. I shall first deal with non-expert evidence
but wish to foreshadow three
matters about the expert evidence.
(a) Firstly, the determination of
authorship in the present case does not rest solely, or even mainly,
on expert testimony.
(b) Second, language and its use
are a staple of the lawyer’s business. Although forensic
linguists can assist the court,
and although certain types of
investigation (particularly quantitative analysis) may be difficult
for the layperson to undertake,
there are, in this case, many
features of content and style about which judges can form intelligent
views without expert help.
The court is less dependent on linguistic
expertise than it might be in other scientific fields.
(c) Third, there was a glaring
omission in the materials supplied to Grundlingh and QG. They were
given the 2011 and 2018 writings
but not the 2017 writings.
[46]
One is left to wonder why the
2017 writings were omitted. An answer which suggests itself is that
Chaplin and his advisors knew
that there was compelling non-expert
evidence that he was the author of the 2017 writings. Chaplin would
not have wanted a finding
from his experts that the authors of the
2017 and 2018 writings were one and the same person. A consequence of
this omission is
that if it is found, on the strength of other
evidence, that Chaplin was the author of the 2017 writings, the
reports of Grundlingh
and QG cease to have any weight, because even a
layperson can see that many of the characteristics of the 2011 and
2018 writings
to which they attached weight abound in the 2017
writings.
Authorship
of the 2011 writings
[66]
Although the 2017 and 2018
writings insinuate that they were authored by Vermaas’ mother,
it was not Chaplin’s case
that they were in fact written by
Vermaas’ mother. Of course, he did not bear an onus of proving
who the was responsible
for the writings but the only person to whom
he pointed was Vermaas.
[67]
As to motive, the case for
Vermaas’ authorship is not compelling. On 13 August 2010
Vermaas learnt that Fine was not interested
in a relationship with
Chaplin, so Fine was not an obstacle. Vermaas’ application for
a restraining order, and her message
to him of 28 September 2010,
[47]
indicate that by late September
2010 Vermaas herself did not want to pursue a relationship with him.
The earliest 2011 writings
were in the latter part of February, and
most were authored after the appearance of the first
Noseweek
article in August
2011. There seems little reason for her to have initiated a
relentless campaign at that late time.
[68]
Turning to Chaplin, he was very
upset with Vermaas for bringing the application for a restraining
order. About a year later he told
Noseweek
that the police had
called at his place of employment because he needed to sign receipt
of the
ex parte
order.
The police had told the office manageress that Chaplin was to be
considered dangerous. Chaplin claimed that he lost his job
as a
result. He also came to believe that Fine had advised Vermaas to seek
a restraining order. This was at about the same time
that she had
reprimanded him for visiting her mother and told him that it was time
for him to ‘move on’.
[69]
Chaplin was interested in
pursuing a relationship with Fine, and believed that Vermaas had
alienated Fine from him. He was further
angered when Vermaas laid a
criminal charge against him in March 2011. His lengthy emails to
Gibson in February / March
2011 show how fixated he was
with these events and bore a strong sense of grievance, while still
conveying solicitude for Fine,
whom he contrasted favourably with
Vermaas. But Gibson’s communication with him in March 2011
could have left him in no doubt
that Fine wanted nothing to do with
him.
[70]
When he was interviewed by
Noseweek
in
advance of the first article, he was reported to have said that he
had ‘exhausted every avenue to clear my name’
He was
‘furious’ that an ‘unsubstantiated order’ had
been made against him by ‘a woman scorned’
(Vermaas) who
had ‘lied to the court’. He could not understand why Fine
had become involved, since he had only ever
been good to her and her
family: ‘In return, she branded me with the stigma of a
domestic violence charge which never goes
away. People just think
that you go around beating up women.’ He told the reporter that
he could not imagine having a normal
life or normal relationships
again.
[71]
His attitude to Fine would not
have been helped by the fact that she, too, was interviewed by
Noseweek
.
She described Chaplin in unflattering terms and said that what really
upset her were his ‘endless lies’. Chaplin,
invited by
the reporter to respond, riposted that it was becoming increasingly
clear to him that ‘in order to justify what
she did last year,
she has attacked my character by spreading rumours and lies about
me’.
[72]
The abusive Facebook messages of
February / March 2011 purported to come from Vermaas
herself. These messages were to
persons known to Fine. They contained
themes that were to characterise the 2017 and 2018 writings –
that Fine had ruined
Vermaas’ prospects with Chaplin; that
Vermaas had fed Fine lies to hurt Chaplin; that Fine was stupid and
had believed the
lies; and that Chaplin had worked out what was going
on but was innocent and gentle. It is wholly implausible that Vermaas
would
have written messages in her own name saying the sorts of
things which the messages contained. Her ‘confessions’
would
have exposed her to criminal and civil action.
[73]
On the other hand, Chaplin’s
state of mind in 2011 was such that a wish to get revenge on Vermaas
and Fine was entirely plausible,
as was the portrayal of himself as
an innocent victim. This is what he conveyed to
Noseweek
.
It is a theme which pervaded the 2017 and 2018 writings. The
recipients of the 2011 writings were people of whom Chaplin would

have had knowledge by virtue of his relationship with Fine.
[74]
The next 2011 writings in the
appeal record were sent shortly after publication of the first
Noseweek
article.
The envelopes in which two of the abusive letters arrived at BVPG had
postage stamps depicting vultures, and on one of
these envelopes was
another image of a vulture, dripping blood.
[48]
One of the enclosures in a 2011
letter was a picture of a vulture in flight, also dripping blood.
[49]
The significance of the vulture
theme will appear presently.
[75]
Some of the letters were
addressed to lawyers at BVPG.
[50]
They were clearly written under
an assumed name. ‘Mike Bailey’ purports to have been
prompted into writing by recently
reading the September issue of
Noseweek
(he
enclosed a copy of the article). ‘Bailey’ launched an
attack on BVPG for employing Fine, who had ‘methodically
and
maliciously slapped a domestic violence charge on an innocent, Colin
Chaplin’. BVPG was urged to hold an internal hearing
‘to
get to the bottom of this despicable act of injustice’. The
writer ‘would never have thought that a so-called
reputable law
practice … would stoop to such unethical standards’.
[76]
The content of this letter is not
compatible with authorship by Vermaas or her mother. The claim that
Fine and her employer had
in effect brought the legal profession into
disrepute was a theme that was to continue in the 2017 writings. That
the writer was
not a person whose native tongue was Afrikaans is
suggested by the fact that the writer twice referred to another
alleged victim
of malicious prosecution, ‘Fred van der
Vywer
’
(instead of ‘Vyver’).
[77]
Another message, this time
anonymous, hailed Fine and BVPG as August’s joint winners of
the ‘onion award’ for
having brought the legal fraternity
into disrepute, reference again being made to the
Noseweek
article.
[51]
This was a matter for the CLS to
investigate.
[78]
From the content and style, the
authors of the ‘Mike Bailey letters and the ‘onion award’
message were the same
person. During the course of the 2017 and 2018
writings,
[52]
the anonymous author was to
explain the link between the ‘onion award’ and the
‘vulture’ theme as follows.
A week after the first
Noseweek
article
appeared, there was an article in the property segment of the
Weekend
Argus
about a ‘vulture
property fund’ founded by Chaplin.
[53]
On the back page of the same
segment was a column called ‘Onions and Orchids’.
[54]
In 2017 and 2018 the writer (now
purporting to be Vermaas’ mother) said that ‘she’
had seen these two pieces and
that they had given ‘her’
the idea about vultures and the ‘onion award’.
[79]
If it is proved beyond reasonable
doubt that Chaplin was the author of the 2017 writings, this would be
powerful evidence that he
was the author of the 2011 writings,
because they are linked by the ‘vulture’ and ‘onion
award’ themes.
Another relevant consideration is that Chaplin
would have wanted to view the article about his new vulture fund.
Since the ‘Orchid
and Onion’ column was evidently in
close proximity to it, he is likely to have had knowledge of both
features. On the other
hand, it would be a great coincidence if
Vermaas or her mother saw the vulture fund article.
[80]
Another piece of evidence linking
Chaplin to the ‘onion award’ and ‘vulture’
documents of 2011 has to do
with dates. Chaplin annexed to his
answering affidavit a copy of the ‘vulture property fund’
article, from which one
can see that it was published on Saturday 10
September 2011.
[55]
The post office impress on the
two vulture stamps of 2011 is also clearly visible: 4 September 2011
and 7 September 2011 respectively.
[56]
The conclusions to be drawn from
the fact that these two letters were posted
before
the publication of the
vulture article scarcely need to be spelt out. As at 4 and 7
September 2011, Vermaas and her mother could
not have known of the
‘vulture fund’ whereas Chaplin did.
[81]
It was around the same time that
‘John Long’ sent a message to Fine,
[57]
making reference to the
Noseweek
article and saying
that she could kiss her partnership goodbye. The writer asked Fine if
she had ‘heard of the boomerang’
– you ‘throw
it out, and it comes back to you’. This is what was going to
happen to Fine. The message also included
the phrase, ‘What a
silly girl!’, which was to be a repeated refrain in the 2017
and 2018 writings. The ‘boomerang’
remark was also to be
echoed in the later writings. If Chaplin was the author of 2017
writings (including the ‘boomerang’
reference to which
reference will presently be made), the inference would be
irresistible that he was also the author of the ‘John
Long’
email.
[82]
Another message, from ‘Nicky
Johnson’,
[58]
said how ‘embarrassed’
Fine must be: ‘What a JOKE, at least u r giving us a good
laugh!’ The ‘joke’
motif, and the capitalisation of
the word, pervade the 2017 and 2018 writings. Similar themes, with
reference to the
Noseweek
article, emanated from
‘Ben Siegel’ and ‘Michelle Schneiderman’.
[59]
[83]
On 29 September 2011 an anonymous
author emailed Fine from the address
alex_burger@ymail.com
.
[60]
The opening and closing
paragraphs of the letter in effect told Fine that an email address
incorporating the name of her close friend
was used to grab her
attention. The writer said that Fine would realise that
Noseweek
always did follow-up
stories. Her statements to
Noseweek
would be addressed in
the follow-up story. One of her allegations, the writer said, would
be refuted by the fact that for most of
2011 her ‘ex-boyfriend’
had been overseas and had not been in the Atlantic seaboard area
since September 2010. Fine
also needed to know that her ex-boyfriend
was now able to prove that Vermaas’ Facebook and Gmail accounts
had
not
been
hacked. In the last two weeks it had also come to her ex-boyfriend’s
attention that he was the subject of two police
investigations
initiated by Fine, and that Fine had abused her position as a lawyer
to send the police ‘running after’
him. The problem for
Fine was that Chaplin had done nothing wrong.
[84]
The writer said that in order to
save face Fine had been telling her friends that
Noseweek
had apologised to her
but when her friends read the follow-up article they would know she
had been lying to them. (This notion was
to feature in the 2017
writings as well.)
[85]
After making various accusations
of dishonesty against Vermaas, the writer said that what was damaging
for Fine was that she had
once again believed Vermaas’ stories.
This was ‘a very stupid thing to do’:
‘
Your
ex boyfriend is yet to comment on these matters but given what you
have done will have little choice but to. No one wants to
see further
damage done to you but you are leaving this guy with no way out. You
need to act like an adult, accept responsibility
for your actions and
undo the damage you have caused … This email is written in the
remote hope that you will have the common
sense to undo all the
damage you have done and accept responsibility for your actions.’
[86]
This letter, which does not even
purport to have been written by Vermaas, could hardly be her
handiwork. It is written entirely
from Chaplin’s perspective,
and professes knowledge of facts unknown to Fine and Vermaas. The
threat of public disclosures
if Fine did not ‘accept
responsibility’ and make amends is of a piece with the alleged
message he conveyed to Sylvia
Ireland. The overwhelming probabilities
are that Chaplin was the writer of this email.
[87]
There was indeed a follow-up
article in
Noseweek
.
On 2 December 2011, an anonymous writer, with the fabricated name ‘I
Kling’, wrote to Fine in connection with this
article. The
writer said that, having majored in psychology, he/she could plainly
see that Fine was suffering from psychological
issues. The writer
offered his/her services free of charge if Fine wanted someone to
talk to. The writer nevertheless gave Fine
the unsolicited advice
that she could start ‘by forgiving your boyfriend and move on
with your life’.
[88]
This idea of ‘moving on
with your life’ was, of course, what Fine had urged upon
Chaplin in late September 2010. There
is a further aspect of interest
in this document but I must first mention another anonymous document
targeted at Fine, headed ‘N.P.D.
– Narcissistic
Personality Disorder’.
[61]
It set out the supposed symptoms
of this disorder and conveyed that Fine met the criteria. The
document concluded with the remark:
‘Psychology Department –
if only one of you have been helped, than
[sic]
the
effort has been worthwhile!’
[89]
In the ‘I Kling’ and
‘NPD” writings the words ‘psychology’ /
‘psychological’ appear
three times, all spelt correctly.
What is revealing is that Vermaas, in the statement she wrote out in
late September 2010 in support
of the restraining order,
[62]
also used the word
‘psychological’ three times but she made the same
spelling mistake each time – she omitted
the ‘h’.
In the same statement she complained that Chaplin ‘clearly
dispizes
me’.
[90]
It is curious that the linguists
did not pick up on these matters. It is unlikely that Vermaas would
have written ‘
psycological
’
three times if she knew the
correct spelling. The word ‘psychological’ and its
cognates, correctly spelt, feature in
the disputed 2011 writings and
in authentic Chaplin writings.
[63]
In the 2011 writings the word
‘despise’ does not appear but ‘despicable’
features twice, both times correctly
spelt.
[64]
Chaplin spells ‘despise’
correctly in his authentic writings.
[65]
This is another piece of evidence
pointing strongly away from Vermaas’ authorship.
[91]
The last of the 2011 writings to
which I shall refer are letters sent by ‘Alex Davison’
and ‘
Lurch
Jeram’
.
[66]
These were sent to public
authorities. The writer complained that Fine had used the police to
further her ‘vendetta’
against her former boyfriend. The
authorities were urged to investigate this ‘abuse of power’.
Both letters referred
to the
Noseweek
articles and alleged
that the police conducted a search and seizure operation despite a
defective warrant. The supposed need for
Fine’s conduct to be
investigated had also featured in the ‘Bailey’ and ‘onion
award’ documents.
The ‘Davison’ and ‘
Jeram
’
letters exhibit knowledge of the
search and seizure operation, about which Chaplin was evidently
vexed.
[92]
Another aspect which the
linguists overlooked is this. In Vermaas’ acknowledged
writings,
[67]
she always inserts a comma before
the word ‘but’ when it functions as a coordinating
conjunction (25 times by my count);
and she almost always inserts a
comma before ‘because’ when it introduces a subordinate
clause (12 out of 14 times).
First-language speakers of English
rarely place a comma before ‘because’, and grammar and
style guides rarely call
for one. Although grammarians have rules
about when ‘but’ as a conjunction should and should not
be preceded by a comma,
few people are familiar with the rules and
even fewer observe them. The tendency, at least in this country, is
for English speakers
to omit commas before ‘but’.
[93]
Vermaas’ extensive use of
commas before ‘but’ and ‘because’ is probably
attributable to the fact that
English is not her first language, and
that in Afrikaans the equivalent words ‘
maar
’
and ‘
want
’
are almost always preceded by a
comma. Chaplin’s authentic writings follow the usual practice
of first-language English speakers.
Confining oneself to his email
writings, he uses ‘but’ as a coordinating conjunction 37
times, and on 36 of those occasions
there is no preceding comma. He
uses ‘because’ 10 times, and on 9 of those occasions
there is no preceding comma.
[94]
In the disputed 2011 writings the
word ‘but’ is used 10 times, and on 7 of those occasions
there is no preceding comma.
The full word ‘because’ does
not feature but the abbreviated form
‘’
cause’,
introducing a subordinate clause,
appears twice, on neither occasion with a preceding comma. Again,
this militates against Vermaas’
authorship of the 2011
writings.
[95]
The 2011 writings include words
and phrases which are more likely to have featured in the writings of
an educated person whose first
language is English than those of an
Afrikaans-speaker for whom English is a second language.
[68]
[96]
The order granted by agreement on
20 December 2011 immediately brought the spate of abusive writings to
an end. This is strong evidence
that the author of the 2011 writings
was a person with knowledge of the 2011 application and order. There
is no evidence that Vermaas
was aware of the 2011 proceedings, let
alone the order. Fine alleged that Vermaas had no involvement in the
2011 proceedings and
that the case was not reported in the press.
[97]
If Vermaas was in truth behind
the 2011 writings, and if she did have knowledge of the 2011 order,
she would have had every reason
to continue with her successful
campaign of getting Fine to think that Chaplin was responsible for
the harassment. Why stop writing
if, by continuing to write, Vermaas
might get Chaplin punished for contempt of the 2011 order?
[98]
In my view, Chaplin’s
denial of authorship of the 2011 writings must yield to the
overwhelming evidence to the contrary. His
denial can be dismissed on
the papers as so far-fetched, in the light of all the circumstances,
as to be untenable. I dismiss,
as absurd, the notion that two persons
might independently have been responsible for the writings. Chaplin’s
authorship would
be placed beyond any disputation if he were proved
to have been the author of the 2017 writings, a matter to which I now
turn.
Authorship
of the 2017 writings
Res
judicata / issue estoppel
[99]
In relation to the 2017 writings,
there is the preliminary question whether, in view of the 2017 order,
it was open to Chaplin,
in the 2018 application, to dispute his
authorship of those writings. Le Grange J could not have made the
orders he did without
finding that Chaplin was the author of at least
some of the 2017 writings. Every finding which it is necessary for a
court to make
in order to grant a particular order must be taken to
have been determined, even though it has not been expressly
declared.
[69]
[100]
This question was touched upon in
the appeal, and the applicants’ counsel submitted in their
heads of argument that their
clients had not been required to
re-prove, or the court
a
quo
to reconsider, the
findings underpinning the 2017 order. In support of that submission,
counsel argued that contempt proceedings
are by their very nature
dependent on the existence of an order in earlier proceedings. It is
the order, not the facts underpinning
the order, that an applicant
for contempt must prove.
[101]
The applicants’ counsel are
right that if their clients proved beyond reasonable doubt that
Chaplin was responsible for the
2018 writings, they did not need to
prove – as a formal element of their cause of action –
that he was the author of
the 2017 writings. This is because the 2017
order was binding on Chaplin whether or not he was in truth the
author of the 2017
writings. The argument, however, misses the point.
In the present case, proof that Chaplin authored the 2017 writings
was not a
formal element of the cause of action in the 2018
application, but evidentially it was vitally important to the
question whether
Chaplin was the author of the 2018 writings, which
was indeed a formal element of the cause of action.
[102]
Accordingly, the applicants’
counsel’s primary submission can be sustained only if
res
judicata
, or more
accurately issue estoppel,
[70]
operated to bar Chaplin from
contesting his authorship of the 2017 writings. I have concluded that
it is undesirable to deal with
the 2017 writings on that basis.
Although in criminal law the pleas of
autrofois
acquit
and
convict
have been held to be
based on the principles of
res
judicata
,
[71]
it does not necessarily follow
that issue estoppel applies to quasi-criminal proceedings.
[103]
Although
R
v Kriel
[72]
could be cited as an instance of
issue estoppel operating against an accused, and although in England
R v Hogan
[73]
was to similar effect,
Hogan
was overruled in
DPP
v Humphrys
,
[74]
which held that issue estoppel
has no place in English criminal law. The highest courts in Australia
and Canada have been divided
on the question whether issue estoppel
in favour of an accused still has a role to play in criminal
proceedings but they have been
uniform in holding that the
prosecution cannot rely on a previous conviction to found an issue
estoppel against the accused.
[75]
The position is the same in New
Zealand and Ireland.
[76]
[104]
If the question were to arise
again in South Africa in ordinary criminal proceedings, our courts
may follow other Commonwealth jurisdictions
in refusing to allow an
issue estoppel to be raised against an accused. Civil contempt
proceedings may be distinguishable but they
have a criminal
dimension, and I can see arguments for and against the applicability
of issue estoppel. Since we were not fully
addressed on the matter, I
prefer to leave it open.
[105]
Moreover, even if issue estoppel
could in appropriate circumstances be invoked against a respondent in
contempt proceedings, our
courts will not permit issue estoppel to
operate in circumstances where to apply it may be unjust and
unfair.
[77]
In the present case, Chaplin has
claimed that lack of financial resources prevented him from putting
up evidence in opposition to
the 2017 application. While one may be
sceptical of this and may think that the Wizardz CCTV footage loomed
large in his decision,
we cannot reject his explanation on the
papers. Particularly in proceedings of this kind, it would be unfair
if his conviction
in the 2018 application were secured on the
strength of an uncontested finding made in the 2017 application.
[106]
Assuming, then, that issue
estoppel does not to apply, the rule in
Hollington
supra
becomes
operative. In terms of that rule, the conclusions reached by an
earlier court on an issue arising for decision in a later
case are
not admissible evidence.
[107]
The applicants’ counsel
referred us to the recent judgment in
Institute
for Accountability in Southern Africa v Public Protector &
others
[78]
where Coppin J held that findings
made in earlier proceedings against the Public Protector at the suit
of third parties were admissible
evidence of the facts in question in
subsequent civil proceedings for declaratory relief and mandatory
interdicts, and that the
rule in
Hollington
should not be extended
to successive civil proceedings. With respect, the way in which
Coppin J confined
Hollington
is not in accordance
with binding authority: see the judgment of the Supreme Court of
Appeal in
Mulaudzi v
Old Mutual
[79]
which dealt with the question
whether a finding in earlier civil proceedings was admissible
evidence in later civil proceedings.
Mulaudzi
was not mentioned in
Coppin J’s judgment and may not have been cited to him in
argument.
[108]
However, even if the rule in
Hollington
did
not render Le Grange J’s implicit finding inadmissible, it
would only be a piece of evidence, not conclusive. Since the
2017
proceedings were unopposed and because Le Grange J was not called
upon to give a reasoned judgment, the evidential value of
his opinion
must necessarily be slight in comparison with the extensive factual
and expert evidence bearing on the question of
authorship of the 2017
writings.
[109]
I also disagree with the
applicants’ submission that the affidavit filed by Chaplin to
prove compliance with the 2017 order
was an admission of
responsibility for the 2017 writings. He was bound by the 2017 order
and had to take such steps as he could
to remove the offending posts.
[110]
Conversely I disagree with the
submission by Chaplin’s counsel that reliance, in the 2018
application, on authorship of the
2017 writings amounted to Chaplin
being ‘punished again’ for something that had formed the
subject matter of the 2017
application. In the 2018 application, the
investigation into Chaplin’s authorship of the 2017 writings
was evidence relevant
to the question whether he was the author of
the 2018 writings. Any new punishment imposed on him in the 2018
application is punishment
for his authorship of the 2018 writings.
The
Wizardz evidence
[111]
The papers in the 2017
application were placed before the court
a
quo
as part of the
material to be taken into account in adjudicating the 2018
application. In her 2018 founding affidavit, Fine dealt
with the
Wizardz evidence by way of summary since it had been dealt with fully
in the 2017 application.
[80]
She said that the CCTV footage
had provided undeniable evidence that Chaplin was responsible for the
three posts uploaded on the
Wizardz computer on 21 February 2017.
[112]
In his answering affidavit,
Chaplin denied in general terms that he authored the 2011 or 2017
writings but did not traverse the
said paragraphs in Fine’s
founding affidavit and did not deal with the full account contained
in the 2017 application. Fine
pointed this out in her replying
affidavit
[81]
and again summarised the
evidence. Although Chaplin filed a supplementary answering affidavit,
he still did not deal with the Wizardz
evidence.
[113]
In the 2017 application, Fine
stated that she had viewed the CCTV footage and was able to identify
Chaplin. Stills from the CCTV
footage were attached to her affidavit.
She also testified that the blue Adidas cap, shorts, sandals and A300
polar watch which
the figure in the Wizardz footage was wearing
matched the cap, shorts, sandals and watch that Chaplin could be seen
wearing in
images taken from his public Facebook page. She alleged
that Chaplin had a distinctive mole on his right leg which was
visible
in the Wizardz footage. And she pointed out that Chaplin had
computer facilities at home and thus did not need an internet cafe

for legitimate purposes.
[114]
Apart from the fact that Chaplin
did not properly challenge the applicants’ Wizardz evidence, it
is undeniable that someone
with a motive to harass them uploaded
abusive posts from a computer at Wizardz at the very time the person
identified by Fine as
Chaplin was there. And it would be stretching
credulity to suppose that someone else (Chaplin’s thesis would
be Vermaas)
was at Wizardz at the very time that a man, looking
remarkably like him and dressed in clothes and accessories that he
was wont
to wear, happened to be there.
[115]
Chaplin’s evasive denial
does not raise a genuine dispute of fact. It was proved beyond
reasonable doubt that he was the author
of the three posts uploaded
from the Wizardz computer.
[116]
Regarding the Wizardz evidence,
Chaplin’s counsel submitted – in the alternative to his
SFE objection (which I have
rejected as unsound) and to his client’s
denial (which I have rejected as patently untenable) – that
proof of Chaplin’s
authorship of the Wizardz posts had ‘little
or no probative value’ in determining the authorship of the
2018 writings.
I disagree. As will appear from what follows, the
Wizardz evidence permits one, through a process of incremental
reasoning, to
link Chaplin to all the 2017 writings; this in turn
confirms his authorship of the 2011 writings; and Chaplin’s
authorship
of the 2011 and 2017 writings amply justifies a conclusion
that he was the author of the 2018 writings.
[117]
One of the Wizardz posts
[82]
was a ‘consumer complaint’
about ‘bad service’ from Fine, ‘a bad attorney who
has also been named
and shamed in Noseweek Magazine!!’. This
type of complaint and terminology occurs frequently in the 2017
writings. The first
sentence of this post ends with two exclamation
marks and the second with three exclamation marks. The name and
username given
by this ‘complainant’ were ‘Leta
Worst’ and ‘
JoeyKangaroo
’
.
[118]
The author of the second post
[83]
asked Fine on which website the
writer should place Cohen’s daughters, suggesting a site where
‘some nice older man
can find them!!!’, remarking that
the writer’s son loved to watch pornography. The message
concluded with an instruction
to Lauren that she must ‘stop
BULLYING Danielle!!!’ The message abounds with multiple
question and exclamation marks.
There is a mis-spelling of ‘their’
in the phrase ‘there home address’. The apostrophe comma
is absent from
the contraction ‘
doesnt
’
.
For reasons I shall explain later, it is significant that the letter
starts with the strange capitalisation of Fine’s first
name,
‘So
LAuren
…’
.
This ‘complainant’ gave the name ‘Leta9’.
[119]
The third post,
[84]
also purporting to be a consumer
complaint against NRF, stated that if one went to attorneys they
should tell you up front that
they have been ‘named and shamed
in the media for being a “very bad attorney”???’.
Each sentence ends with
multiple question or exclamation marks.
Other
writings from ‘Leta’, ‘Joey’, ‘Kangaroo’
etc
[120]
Since Chaplin was undeniably the
author of the above three posts, it must follow that he was the
author of other posts under cognate
names – on 31 May 2016
under the
name
‘kangaroo’;
[85]
on 9 October
2016 (three)
[86]
and 19 October
(two)
[87]
under the
names ‘koalajoey’/‘Koala Joey’; on 18 January
2017 under the name ‘Koalanet’;
[88]
on 21 February
2017 under the name ‘Leta9’;
[89]
and on 23
March 2017 (two) under the name ‘Leta23’.
[90]
The chances
are zero
that these
posts, many of which pursue similar themes to those contained in the
Wizardz posts, were coincidentally the work of a
second person
operating independently of Chaplin.
[121]
There are features, other than
the assumed names, by which these messages can be linked to Chaplin.
In general, and in keeping with
all the 2017 writings, the author of
these messages employed multiple exclamation and question marks,
capitalised words for emphasis,
and refrained from inserting an
apostrophe in contractions such as ‘
didnt’,
‘doesnt’, ‘wouldnt’ etc.
[122]
There is also a commonality of
themes. The message of 31 May 2016 referred to
Noseweek
and included the
notion that Vermaas had hated the fact that Chaplin cared for Fine’s
mother. The messages of 9 October 2016
and one of the messages of 19
October purported to be consumer complaints and urged the CLS to
investigate Fine. They contained
the ‘named and shamed’
trope with reference to ‘two different editions of
Noseweek
’
.
There is the mis-spelling ‘proffession’.
[123]
The other message of 19 October
told Fine ‘why we had to get the restraining order against’
Chaplin – to ‘make
him look like he was a bad person’.
One of their reasons was ‘to HURT him!!!’. Fine was
alleged to have been
‘embarrassed’ because she had not
wanted her mother to find out what Fine had done to Chaplin. The
author could now
write more letters to force Fine to act against
Chaplin.
[124]
The message of 18 January 2017
asked the CLS to remove Fine as an attorney. She had been ‘named
and shamed in several editions’
of
Noseweek
.
She had forced an innocent woman to ‘file for a restraining
order’ against her boyfriend because she ‘mistakenly

thought he had
been
unfaithfull to her!!!’
One
of ‘Leta’s’ posts of 23 March complained of ‘bad
service’ and rudeness from Fine of NRF, and again
included the
‘named and shamed’ theme.
[125]
The message of 21 February 2017
(not identified as one of the three Wizardz posts) contained a theme
that Fine had ‘wanted’
the letters to be from Chaplin so
that she could justify all the terrible things she had said about
him. Fine was ‘just as
guilty as we’ so she should not
try to ‘bully’ Danielle. The writer was ‘going to
bully your sister and
her children back at you on the internet now!!’
Fine was ‘stupid’. Chaplin had never cheated on her. (One
can
infer that this message was posted shortly before the Wizardz
message in which Chaplin asked Fine on which pornographic site he

should place Cohen’s children.)
[126]
‘
Leta’s’ other
post of 23 March 2017 dragged the [X] family into the abuse (Fine was
friendly with certain members of
that family), and threatened to
disclose on the internet that a member of the [X] family had
supposedly committed adultery ‘with
two women at the same
time’. Fine was said to be a ‘bully’, and was
alleged to have tried to frame Chaplin for
the letters which the
writer had sent. The writer referred to having ‘[put] up
information about your sisters
[sic]
children’, which
clearly links the author to one of the Wizardz posts. (Fine alleged
that her friendship with the [X] family
was not known to Vermaas or
the latter’s mother.)
The
other [X] posts / ‘RashS’
[127]
The ‘Leta’ post about
the [X] family, which for the reasons explained above was undoubtedly
Chaplin’s work, allows
one to link him to the four posts of 23
May 2017 under the name ‘RashS’.
[91]
Two of these posts alleged that a
member of the [X] family had had a ‘threesome’ with his
wife and another woman. There
is a zero possibility that a person
other than Chaplin coincidentally decided to harass Fine with the
same theme a few weeks after
Chaplin had done so. We also know, from
Chaplin’s authentic writings, that ‘RashS’ is
likely to be a ‘clue’
pointing to
Rasheda
Samuels whom
Chaplin in 2010 had identified as a Vermaas accomplice.
[92]
[128]
Since Chaplin’s experts
attach some significance to religious themes in the 2011 and 2018
writings, I note that in these two
messages ‘RashS’ said
that the threesome had been ‘a SIN in the eyes of the LORD our
GOD!!!’ and ‘a
sin in gods eyes!!!’
[129]
Since one can discount the
possibility that a person other than Chaplin coincidentally started
abusing Fine at exactly the same
time under exactly the same name
‘RashS’, Chaplin must also be the author of the other two
posts under that name on
23 May 2017. One message, targeted at Cohen,
asked her, ‘Sheri why the romance novel???’ (From
Chaplin’s authentic
writings one knows that he wrote a romance
for Fine’s mother because the latter ‘love[d] her trashy
romance novels’
[93]
and Chaplin thought that she
deserved to be the star of such a story. The opening chapters are
part of the record.
[94]
)
‘RashS’ went on to say that Vermaas had hated Fine’s
mother, and that if Fine’s mother had not told Chaplin
‘what
was going on’, there would never have been a restraining order,
the
Noseweek
story
or any ‘letters’.
[130]
The last ‘RashS’
messages told Cohen how easy it had been to fool Fine. Fine would
never be able to apologise to Chaplin
and she would have to lie to
make it appear that Chaplin was the author of the letters. Fine was
‘such a LIAR!!!’ The
writer said ‘it was so much
fun playing them against each other!!!’
The
‘vulture’ writings
[131]
The 2017 writings considered thus
far, all of which are undoubtedly Chaplin’s work, also enable
one to link him to the many
‘vulture’ posts in the 2017
writings. The one linking piece of evidence is the ‘RashS’
message in which
the writer asked why Fine had not understood ‘why
the “vulture” was used!!!’
[95]
Chaplin had ‘got it’
but not Fine. Chaplin’s authorship of this message shows that
he had knowledge that the ‘vulture’
theme had featured in
the 2011 writings and in earlier 2017 writings.
[132]
The other linking piece of
evidence is a message from ‘Vulture5’ on 31 May 2017.
[96]
The writer accused a member of
the [X] family of having ‘organised a threesome for her
husband’, and continued:
‘
HE
was stil a married at the time!!! That is adultury!!!’ [Y]
please ask Lauren what the vulture picture is about!!! She knows
what
it means doesnt she???? She wont want to be honest with you. She will
lie to you but you must make her tel the truth!!! The
vulture is the
key to understadning what happened!!!’
[133]
The chances are vanishingly small
that someone other than Chaplin also decided to start harassing Fine
about a supposed threesome
in the [X] family and to pursue the
familiar theme of Fine’s supposed propensity for lying. So
‘Vulture5’ must
be Chaplin.
[134]
Posts by or referring to
‘vulture’ cover 14 of the 2017 writings, and the evidence
thus far on its own establishes beyond
reasonable doubt that Chaplin
must have authored of those writings as well.
Other
2017 writings
[135]
It would be tedious to examine
all the other 2017 writings in detail. Once it is found that Chaplin
was the author of the three
Wizardz posts, the other posts under
cognate names, the ‘RashS’ posts, and the ‘vulture’
writings, it is
impossible to resist the conclusion that he was the
author of all the 2017 writings. They are characterised by similar
themes,
similar formulations, and display a similar style of writing.
I wish to highlight only a few aspects of these other writings.
[136]
I referred earlier to the strange
capitalisation, ‘LAuren’, in one of the three Wizardz
posts. This capitalisation in
her name appears at least 11 times in
the 2017 writings,
[97]
and in one of these messages, in
which her name was capitalised in this way four times, the author
also wrote, ‘Cape
LAw
Society’.
[98]
The explanation is almost
certainly that Chaplin’s affectionate name for Fine was ‘La’,
which one sees throughout
his authentic 2010 / 2011 emails
to Wassell and Gibson.
[137]
An anonymous message of 4 March
2016 to Fine
[99]
said that they had had ‘so
much fun’ making Chaplin defend himself against Fine, even
though he was ‘innocent’.
The writer claimed to have put
‘your sisters children on some very bad websites so some bad
men can find them!’ This
is very similar, in content and
formulation (including the absence of an apostrophe), to things said
by Chaplin on 21 February
2017 and 23 March 2017 under the name
‘Leta’.
[138]
The Australian theme, which one
can discern in the names ‘kangaroo’ and’ koala’
which Chaplin chose for
some of the messages above, can be detected
in other posts as well. There are five messages under the names ‘Croc
Dundee’
/ ‘DundeeC’ / ‘Mick
Dundee’;
[100]
a message from
‘ayersrock’ (alluding
to
the famous Australian landmark, Ayers Rock);
[101]
and one from ‘Adele
Scheepers’ with the username ‘Didgeridoo<Australian>’.
[102]
The name ‘Joey’,
which Chaplin incorporated into a number of his assumed names, also
features in a post of 11 March
2017 from ‘Joey Jackman’
[103]
(the surname perhaps a reference
to the Australian actor Hugh Jackman).
[139]
In one of these ‘Australian’
posts, on 15 February 2017 under the
name
‘DundeeC’
,
[104]
the writer said that the ‘Dummies
Award’ went to Fine. (This harks back to the onion award
document.) The ‘best
game in the whole world was playing you
against your stupid ex boyfriend Colin Chaplin!’ Chaplin was
‘innocent’.
He would never have found out ‘if your
stupid
mother
didnt tell
him!!’
The writer had told Fine that Chaplin ‘was a psycho’. The
writer had left ‘so many clues’ but
Fine had never seen
them. This message concluded:
‘
It
was the ‘
Boomerang’
comment wasnt it?? Thats how he new it was me wasnt it! You see
Lauren I went to Australia once for a wedding but
you didnt get that
did you
!!!
The best game in the whole WORLD playing you against Colin Chaplin
and all he could do was try and defend himself against you!!!’
‘
John
Long’ had explained the ‘boomerang effect’ to Fine
in one of the 2011 writings.
[140]
A message posted on 24 October
2016
[105]
was under the name ‘Onion
Award’. Again the writer spoke of having left ‘so many
clues’. There is reference
to the
Farmers
Weekly
and the way in
which the writer had come to link the ‘vulture’ theme
with the ‘onion award’.
[141]
On 23 February 2017
[106]
and 4 March 2017
[107]
there were two abusive posts
making reference to Rosalind Lambert-Porter, a person whom Chaplin
had briefly dated before Vermaas
and who also subsequently complained
of harassment. One of these posts was from ‘Talented Mr
Ripley’, the other from
‘RLP’. The first stated
that
the author ‘gave you [Lambert-Porter] becuase you would grab
onto someone who had something bad to say about him wouldnt
you???
’
.
These references to Lambert-Porter are significant for two reasons.
(a) First, the insinuation that
the Vermaas family led Fine to Lambert-Porter is factually untrue.
Fine explained
[108]
that in 2011 she asked senior
counsel to cast his eye over her draft founding affidavit in the 2011
application. After reading the
papers, this advocate told Fine that
he had recently advised a distant cousin of his who had come in for
similar treatment from
a Colin Chaplin. This distant cousin was
Lambert-Porter, and this is how Fine came to obtain her evidence.
(b) Second, and as Fine stated in
the 2017 application, Chaplin was the only common denominator between
her and Lambert-Porter.
The fact that the author of the posts
attacked the two women in a single message cannot conceivably be mere
coincidence.
[142]
The post of 23 February 2017
pursued similar themes to the other 2017 writings, and Chaplin is no
doubt the author. He must thus
also be the author of another post of
23 February 2017 under the name ‘Talented Ripley’.
[109]
[143]
As in Chaplin’s authentic
writings but unlike Vermaas’ authentic writings, the author of
the 2017 writings places no
comma before the words ‘but’
and ‘because’. By my count there are 19 instances of
‘but’ and
21 of ‘because’, not once with a
preceding comma.
[110]
[144]
A final feature of the 2017
writings to which Fine drew attention is that although they imply the
doing of harm to Chaplin, none
of them cast him in a bad light. The
people who come off badly are the supposed writer (Vermaas’
mother) and Fine, her sister
and acquaintances –  the
writer by virtue of the dastardly acts to which ‘she’
confesses, the rest by virtue
of the awful things said about them.
[145]
As with the 2011 writings, the
fact that the 2017 writings came to an end with the granting of the
27 order points to the fact that
the author had knowledge of the 2017
application and of the order. Fine alleged that Vermaas was not
involved in the 2017 application
and that it was not reported in the
press.
Conclusion
on 2017 writings
[146]
I am thus satisfied beyond
reasonable doubt that Chaplin was the author of all the 2017
writings. His authorship of the 2017 writings
also confirms his
authorship of the 2011 writings.
Authorship
of the 2018 writings
[147]
The seven 2018 letters are
characterised by a similar style to the 2017 writings: multiple
question and exclamation marks; capitalisation
for emphasis; the
absence of an apostrophe in contractions and with the possessive ‘s’;
and in one instance a religious
allusion.
[148]
The themes are also familiar. In
the first letter the writer said that ‘we have
almost
got Colin havnt we!!!’, and continued
:
‘I will wait a few weeks and then send you some more letters
and write some NASTY complaints about you and your sister on
the
internet’.
[149]
Significantly, this letter
included the sentence: ‘I got the idea for the HILLBILLY letter
I sent to NOSEWEEK from my sister
Farmers Weekly magazines.’ In
one of the 2017 writings, a message to Cohen from ‘Gerda’
on 25 May 2016,
[111]
the writer had said: ‘Did
you know that I sent the letter to Noseweek calling your sister a
“hillbilly”???’.
Chaplin undoubtedly wrote the
message of 25 May 2016. Unless there was a copycat at work in 2018,
he must also have been the author
of the first of the 2018 letters.
Chaplin had evidently spoken to Vermaas of ‘hillbillies’
during their short liaison
because on 12 July 2009 Vermaas ended her
message to Chaplin thus: ‘I should have listened to you a long
time ago about those
hillbillies from oudtshoorn…’.
[112]
[150]
In the second letter, the writer
referred to the seizure of Chaplin’s computers, and said that
when Fine took Chaplin to court
the writer had stopped sending the
letters ‘so that [Fine] could tell people that it must have
been him and that Noseweek
were wrong!’ Chaplin, however, had
been ‘innocent’. The writer said that ‘she’
was enclosing ‘a
picture of me at my eldest daughters
wedding!’, and taunted, ‘I left clues in the letter but
your sister could not
solve it!’ Once again, and as with the
2017 writings, the writer was seeking to point the finger at Vermaas’
mother,
and was pursuing familiar themes.
[151]
The third letter started with the
familiar assertion: ‘So now you know why we needed the
restraining order against Colin and
why he had to think it was
Laurens idea!!’. The writer claimed that after the
Noseweek
story the writer had
known that Chaplin would try to talk to Fine and that if they
succeeded Fine would find out that she had been
lied to, so the
writer had had no choice but to make Fine think that Chaplin was
‘stalking her’. The writer did so
by ‘sending the
letters’. There is an echo of one of the 2017 messages when the
author wrote: ‘As a mother you
will understand that there is
nothing
you
wouldnt do for your children
!!!
Colin and Lauren were sacrificed so that my children could have a
good life.’
[152]
The author showed familiarity
with the 2017 writings, saying that ‘22 times I wrote
complaints on the Internet about your
sister and I used my sisters
surname SCHEEPERS and your sister didn’t get it!!!’. The
author boasted that ‘[t]he
vulture was my genius!!!’, and
explained about the article which had appeared in the newspaper
concerning Chaplin’s
vulture fund. The author also wrote: ‘I
had no choice but to put the comments on the internet about Mia
Gibson and the [
Xses
]’,
thus showing familiarity with the abusive statements about the [X]
family for which Chaplin was responsible in 2017. Enclosed
with this
letter was a screenshot containing the ‘vulture fund’
article, reflecting the date of the computer as 14
February 2018.
[153]
The fourth letter is a short one
which, although addressed to Cohen, was intended for Fine. The author
asked why Fine could not
find out who the author was – the
author had left ‘so many clues’. The author asked whether
Fine knew that the
author’s ‘sisters husband Gerhard is a
farmer!!!’, adding: ‘The Farmers Weekly magazines I got
from their
home!!!!’.
[154]
The fifth letter alleged that
Chaplin had humiliated the author’s daughter, who had had to
leave home, dye her hair and change
her name. Vermaas had only lied
to Fine because she loved Chaplin and wanted Fine out of the way. The
author asked Cohen if she
wondered why the author had used pictures
and stamps of vultures, and again enclosed a copy of the ‘vulture
fund’ article.
It had been ‘a miracle a sign from GOD’
when Chaplin had appeared in the
Weekend
Argus
. Again the
connection between vultures and the onion award was explained, the
author stating: ‘That is why I gave you so
man ONION
AWARDS!!!’.
[155]
The author of the fifth letter
referred to an earlier letter in this sequence, and concluded: ‘I
know that you still must
have many questions for me. In my next
letter I will tell you all about AUSTRALIA and my medical
diagnosis!!!’.
[156]
The sixth letter displayed
knowledge of the 2011 and 2017 writings, opening with the sentence:
‘It was the BOOMERANG letter
wasn’t it????’. The
author stated that ‘I wen to Australia for my eldest daughters
wedding’, who was married
in ‘the presence of GOD’.
The writer ‘wore a beautiful dress designed by my daughter’.
The writer was ‘not
going to apologise for calling you
narcissistic!!’ (harking back to the NPD document of 2011). The
writer concluded by promising
Cohen that she would answer her further
questions in the next letter. The writer enclosed an advertisement
from ‘Hillbilly
Homes Lifestyle’
[113]
and an article on ‘spiritual
well-being’ by the evangelist Angus Buchan.
[114]
These two extracts were from
Farmer’s Weekly
of 4 August 2017.
[157]
The seventh letter started: ‘What
a JOKE Lauren and Colin are (anything but FINE)! I would like to
thank them for the entertainment
they are providing me with.’
Again, the writer stated that the letters were sent so that Fine
would think that she was being
harassed by Chaplin ‘and get a
restraining order against him!!’. To keep her career, Fine had
had to tell her fellow
attorneys that
Noseweek
was wrong, and she had
to take him to court ‘to make him stop sending her letters’.
The writer had known when to stop
sending the letters, because Fine
had supposedly told the writer when she was taking him to court.
Chaplin ‘was innocent
but your sister maliciously prosecuted
him’. The letter continued with themes familiar from the 2017
writings.
[158]
Significantly, there are two
paragraphs in Afrikaans. Perhaps the author wished to suggest that
‘she’ was Afrikaans-speaking.
That endeavour fails,
because the Afrikaans is decidedly not that of a person whose first
language is Afrikaans.
[115]
[159]
Once again, the 2018 writings are
characterised by the absence of a comma before ‘but’ and
‘because’. These
words are used at least seven times and
twice respectively in circumstances where Vermaas would have used a
comma.
[116]
[160]
Since Chaplin was, beyond
reasonable doubt, the author of the 2011 and 2017 writings, the
stylistic and thematic similarities of
the 2018 writings and the
knowledge which the author displayed of the earlier writings lead to
the inescapable conclusion that
Chaplin was also the author of the
2018 writings. Since his denial of authorship in relation to the 2011
and 2017 writings is undoubtedly
dishonest, his denial in relation to
the 2018 writings rings hollow. (Chaplin’s own experts seem to
have had no doubt that
the 2011 and 2018 writings were authored by
the same person.)
[161]
The only theoretical alternative
is that someone with a motive to harm Chaplin had insight into the
2011 and 2017 writings, and
copied his style and themes in the 2018
writings in order to frame him. And the only person to whom Chaplin
has pointed is Vermaas.
I have already explained why, even in 2011,
Vermaas did not have a strong incentive to harass Fine or to harm
Chaplin in this way.
Since Vermaas was not the author of the 2011 and
2017 writings, the theory that she was a copycat requires one to
accept that in
January / February 2018 she decided –
eight or nine years after last having had anything to do with Chaplin
and
Fine – to wreak revenge on them.
[162]
This theory also requires one to
suppose that Vermaas had knowledge of the 2011 and 2017 applications,
that at the beginning of
2018 she drew the court files and made
copies of the 2011 and 2017 writings, and that she had the linguistic
ability to craft letters
which would convincingly indicate (as indeed
they do) that the author of the earlier writings was also the author
of the 2018 writings.
[163]
Then one has to believe that
Vermaas decided to perpetuate the insinuation, made by Chaplin in the
2017 writings, that her own mother
was the author of the 2011, 2017
and 2018 writings. In other words, the theory would be that Vermaas
was pretending to be Chaplin
pretending to be Vermaas’ mother,
with the inevitable danger that somebody might investigate Vermaas’
mother, which
might in turn lead back to Vermaas herself. It is
difficult to imagine Vermaas or her mother confessing to the conduct
which the
2018 writings ascribed to them.
[164]
And finally, one must suppose
that Vermaas, who was trying to frame Chaplin, made it appear that
the letters had been sent before
the 2017 order was made. This would
have been utterly self-defeating if her intention was to have Chaplin
punished for contempt
of court.
[165]
This theory, with its multiple
implausibilities, has no factual foundation, and can be rejected as
not reasonably possibly true.
[166]
I should mention that neither
side filed an affidavit by Vermaas in the 2011 or 2017 proceedings.
At a late stage of the 2018 proceedings
the applicants sought
condonation to file an affidavit from her, which Chaplin opposed. It
appears from the transcript of argument
in the court
a
quo
that in order to
prevent delay the applicants abandoned their attempt to introduce her
affidavit. We may infer that Vermaas denied
being the author of the
writings because Chaplin said in effect, like Mandy Rice-Davies,
‘Well, she would say that, wouldn’t
she’.
[117]
The
expert evidence
[167]
Chaplin’s counsel submitted
that Kotzé’s conclusions were ‘clearly disputed by
at least four global experts
and one local expert’; that
Kotzé’s methodology, analysis and findings could not be
relied on; that Chaplin’s
countervailing expert evidence was
‘more than sufficient grounds to reject out of hand the
testimony tendered by’ Kotzé;
that at any rate Kotzé’s
evidence could not be said to establish Chaplin’s authorship
beyond reasonable doubt;
and that there was a ‘litany of
material disputes (of fact and opinion) between the parties’
experts’, which
created ‘significantly more than mere
reasonable doubt’.
[168]
These submissions overlook the
three considerations I foreshadowed earlier in this judgment.
[118]
This is a case where non-expert
evidence establishes Chaplin’s authorship of all the writings
beyond reasonable doubt. The
question is whether the expert evidence
proffered by Chaplin detracts sufficiently from the non-expert
evidence to leave reasonable
doubt. The non-expert evidence, however,
is of a kind which cannot really be undone by expert opinion.
[169]
I have already foreshadowed a
great failing in the analyses performed by Grundlingh and QG, namely
that they take no account of
the 2017 writings. Having regard to the
contents of their respective reports, I have no doubt that if they
had been asked to determine
whether the author of the 2018 writings
was the same person as the author of the 2017 writings, their answer
would have been an
unequivocal yes.
[170]
Another signal deficiency in the
their analyses is, as Kotzé rightly pointed out, that their
premise seems to have been that
the 2011 and 2018 writings were the
writer’s ordinary style, the question being whether that style
was closer to the known
style of Chaplin or Vermaas. However, one
does not need to be an expert to see that most of the 2011 writings,
and all of the 2017
and 2018 writings, represent a material departure
from the ordinary styles of both Chaplin and Vermaas. Whoever was
writing the
disputed documents was deliberately affecting, indeed
flaunting, a bizarre style. Although there are, here and there, a few
traces
in Vermaas’ authentic writings that English might not be
her first language, in general she writes English well and naturally,

and commits relatively few gross spelling errors. Chaplin, as an
English speaker, also writes well.
[171]
The author of the 2017 and 2018
writings, by contrast, went out of his or her way to
spell
words incorrectly. Some of these appear from extracts I have already
quoted but there are many more. For example, the author
often wrote
‘becuase’, ‘beleive’, ‘wil’,
‘tel’ and ‘stil’ (instead
of ‘will’,
‘tell’ and ‘still’
)
and so on. Neither Chaplin nor Vermaas, in their authentic writings,
mis-spell these words, though both have occasional lapses.
[172]
In these circumstances, most of
the tools used by the experts are likely to be unreliable. The
abusive writings are a distinct genre,
marked by sensationalism,
exaggeration, an accusatory and taunting tone, and an artificial
style. Since Chaplin and Vermaas knew
each other’s authentic
style, either of them – if they had sufficient linguistic skill
– could have drawn on
features from the writings of the other,
though there is little evidence of this having been done.
[173]
Nevertheless, I make the
following observations concerning Grundlingh’s qualitative
analysis. Of the five stylistic features
on which she based that
analysis, almost all are common to the 2017 and 2018 writings
and / or consistent with Chaplin’s
authorship. I have
already mentioned the use of multiple exclamation and question marks,
the absence of an apostrophe in contractions
and the use of
capitalisation in the 2017 writings, which are undoubtedly his.
[174]
Grundlingh said that whereas
Chaplin used single and double inverted commas interchangeably,
Vermaas and the author of the 2011
writings only used double inverted
commas. Although the Vermaas sample is small, this seems to be true
in relation to her writings
and the 2011 writings. But if Grundlingh
had examined the authentic Chaplin emails in the record as well as
the 2017 writings,
she would have been struck by two things:
(a) First, in his authentic
emails Chaplin always uses double inverted commas,
[119]
and departs from this style in
only one of the formal writings Grundlingh examined.
[120]
(b) Second, in the 2017 writings,
which are undoubtedly Chaplin’s, he used double inverted commas
most of the time
[121]
(as in his authentic emails) but
used single inverted commas at least once.
[122]
On Grundlingh’s logic, this
is something Vermaas would never have done.
[175]
Grundlingh noted that Chaplin’s
authentic writings do not employ underlining for emphasis whereas the
2011 writings did. However,
Grundlingh cited only one instance where
Vermaas herself underlined a word, and this was not in her email
writings but in her handwritten
statement in support of the
restraining order. Furthermore, there is no underlining in the 2017
and 2018 writings, so the point
has no traction.
[176]
A similar critique could be made
of QG’s stylistic analysis. They say that in the 2011 and 2018
writings, mis-spellings, supposedly
attributable to similarities in
pronunciation, occur. But the same mis-spellings abound in the 2017
writings of which Chaplin was
undoubtedly the author. Even in the
three short Wizardz posts, one finds ‘there’ instead of
their’ and ‘advise’
instead of ‘advice’.
[177]
The use of multiple co-ordinated
conjunctions, rather than short sentences, is said by QG to be
typical of Vermaas and the disputed
writings but not those of
Chaplin. Since QG were given a very small sample of Chaplin’s
authentic writings, I do not believe
that any such inference can be
drawn. But in any event, the same pattern of multiple co-ordinated
conjunctions is to be found in
the 2017 writings.
[178]
QG say that whereas Chaplin
expresses currency as ‘R7,5 million’, the 2011 writings
contain the expression ‘45
million rand’. I am surprised
that experts should have regarded a single instance of a currency
expression in Chaplin’s
writings and in the disputed writings
respectively as being of any moment. But I would add that if they had
been given a fuller
sample of Chaplin’s writings, they would
have seen that in a single email
[123]
Chaplin spoke of an asking price
‘between 500 and 600 thousand Rands’, followed a few
words later by the statement that
he was going to ‘offer
R350 000’. And in another email
[124]
he said he was going into a
meeting to discuss ‘buying a
fourty
[sic]
five
million Rand piece of property’.
[179]
QG said that the way Chaplin and
the disputed author formatted dates differed. Chaplin, they said,
wrote ‘12
th
of August’ whereas in one
of the 2018 writings the author wrote ‘15 of October’. A
single sample from disputed
writings in which the author is
deliberately mangling language does not constitute evidence of
different authorship. I have never
known any reasonably intelligent
person to write ‘15 of October’ and it is not an error
that might be induced by following
an Afrikaans practice. There is no
sample of the way Vermaas formatted dates, and Chaplin’s own
style was not entirely uniform
– in one letter he wrote ‘on
November 17’.
[125]
[180]
QG made reference to Afrikaans
features in Vermaas’ writings. I think Spanish linguists ought
not to have opined on such matters
as whether the use of the word
‘braai’ and ‘Mampara’ in South Africa are
more likely to be used by Afrikaans-speakers
than English-speakers.
They referred to the fact that in the 2011 and 2018 writings there
are religious allusions and frequent
references to magazines such as
Noseweek
and
Farmers Weekly
.
Indeed, and a great many more in the 2017 writings.
[181]
QG say that Chaplin follows the
correct and usual style of placing a comma after greetings and
farewells, eg: ‘Hi Janice,’;
‘Regards,’,
whereas Vermaas and the author of the disputed writings follow the
unusual practice of omitting the comma.
QG are wrong. In South Africa
the usual practice is the other way round.
[126]
This does not necessarily nullify
QG’s point. However, if Chaplin consciously, in his own
writings, followed the unusual practice
of inserting commas after
greetings and farewells, he may well have consciously eliminated this
from his ‘anonymous’
writings.
[182]
I am unimpressed by the ‘keyness’
analyses of Kotzé on the one side and Grundlingh on the other.
I am similarly
unimpressed with stylometric analysis focusing on
sentence and paragraph complexity. Not only are the disputed writings
a specialised
and artificial genre; the samples of the authentic
writings of Chaplin and Vermaas are small:
(a) The authentic genre closest
in style to the disputed writings are informal emails and Facebook
messages. QG had regard to only
15 authentic Chaplin emails,
[127]
of which 11 were messages of only
a few lines and the remainder incomplete extracts from Chaplin’s
lengthy narratives to Gibson.
Grundlingh’s analysis did not
include any authentic Chaplin emails. Kotzé had the most
extensive corpus of Chaplin’s
emails,
[128]
some relatively short but most of
them of more substantial length.
(b) Kotzé did not include
Vermaas in his analysis. For purposes of their analysis, QG had
regard to only ten Vermaas emails,
[129]
of which five were relatively
short (seven lines or less). Grundlingh had access to only three
authentic Vermaas emails.
[130]
[183]
As I have said, most of the
stylistic features on which Grundlingh and QG based their qualitative
analyses are features common to
the 2011, 2017 and 2018 writings.
Indeed, I think Grundlingh and QG seem to have taken it for granted
that the same author was
behind the 2011 and 2018 writings, and I am
sure they would have reached the same conclusion if the 2017 writings
had been included
in their brief. Kotzé is the only expert to
have enquired whether the same hand was behind the 2011, 2017 and
2018 writings,
and his conclusion was unequivocally yes.
[184]
Because of the unusual nature of
the disputed writings and the deliberate adoption by the author of an
artificial style, the traces
of the true author are likely to be
subtle. I have already mentioned the way in which Vermaas almost
invariably places commas before
‘but’ and ‘because’.
The absence of these features in the disputed writings does not show
that Chaplin
is the author but does point strongly away from the only
other person who has been identified as a suspect.
[185]
The same is true of the correct
spelling of ‘psychology’ and its cognates in the disputed
writings. The fact that Chaplin
in authentic writings also spelt this
word correctly is unremarkable for an educated English-speaker but
the fact that Vermaas
spelt the word wrongly on the three occasions
she used it militates against her authorship of the disputed
writings.
[186]
Whatever the flaws in Kotzé’s
methodology (a matter on which it is unnecessary to express an
opinion), he detected
two other subtle errors (ie traces of true
authorship to which the writer may not have been alert) in Chaplin’s
authentic
writings and the disputed writings. The first is that
Chaplin invariably writes ‘bought’ (instead of ‘brought’)

as the past tense of ‘bring’. In the authentic Chaplin
writings and in the disputed writings, one finds no instance
of
‘brought’ where its use was dictated, and no instance of
‘bought’ where that word would have been correct
(ie as
the past tense of ‘buy’).
[187]
Kotzé also undertook
phrase searches on very large English-language databases. He chose
two expressions encountered seven
and six times respectively in the
disputed writings, namely ‘she has bought nothing but shame’
and ‘she has bought
the legal profession’. The phrase
‘she has bought nothing but’ returned only 906 hits,
while the exact phrase
‘she has bought nothing but shame’
only seven hits, all being from the disputed writings on the CLS
website. The phrase
‘she has bought shame on the legal
profession’ yielded only six hits, again being from the
disputed writings on the
CLS website. By contrast, the correct phrase
‘has brought the legal profession’ yielded 77 600
hits.
[188]
The other distinctive Chaplin
error which Kotzé identified is his tendency to write ‘women’
when ‘woman’
is dictated by the context. In authentic
writings he makes this error not only in emails but in more formal
texts. This error,
too, one finds on quite a few occasions in the
disputed writings.
[189]
Chaski, who did not comment on
the ‘women’ error, stated that the ‘bought’
error is common. Although she
attached some samples of internet
searches to demonstrate this, most of them seem to be from people
who, to judge by their names,
did not have English as their first
language. I would think that among people whose first language is
English the error is less
common in writing than in speech (where
there could be a slip of the tongue). Chaski did not comment on the
outcome of Kotzé’s
phrase searches.
[190]
In the circumstances, when the
expert evidence is viewed holistically in the light of Chaplin’s
proven authorship, on non-linguistic
grounds, of the 2017 writings,
it supports rather than detracts from the conclusion that he was the
author of the 2018 writings.
[191]
I thus consider that the court
a
quo
was right to find
that the applicants had proved beyond reasonable doubt that Chaplin
was the author of the 2018 texts and that
he had thus wilfully  and
with
mala fides
breached the 2011 and
2017 orders.
Sanction
for the proven breach
[192]
Chaplin’s counsel submitted
that after Chaplin was found guilty of contempt but before sanction
was imposed, the court
a
quo
should have
permitted him to adduce mitigating evidence, with separate
consideration being given to (a) the sentence imposed
for the
new contempt and to (b) the question whether the suspended
sentence of 2017 should be brought into operation. With
reference to
Fakie
,
it was argued that a respondent in civil contempt proceedings is
entitled to analogous protections to those enjoyed by an accused

person in criminal proceedings.
[193]
This point was not raised in the
answering papers or in the heads of argument in the court
a
quo
. We requested a
transcript of the proceedings, from which it appears that the point
was not raised in oral argument. It first emerged
in the application
for leave to appeal, by which time Chaplin had engaged his current
senior counsel.
[194]
What was discussed
a
quo
, in relation to
sentence, was the question whether – if it were found that
Chaplin was the author of the letters –
a psychological
assessment was needed. This started with a remark by the applicants’
counsel, at the beginning of his submissions,
that on the question of
sanction there was a ‘strong feeling’ on the part of the
applicants that there was ‘something
wrong psychologically’
with Chaplin and that ‘one may want to bring that into play one
way or another’. Counsel
added, though, that ‘it is a
difficult subject to broach’.
[195]
Chaplin’s counsel devoted
most of his oral argument to the merits. On sanction, he said that if
the court found Chaplin guilty,
then on the applicants’ version
there was something ‘pathological’ about his behaviour. A
civilised society should
not send ‘somebody who is ill to
prison’. The judge said that there was nothing in Chaplin’s
version to suggest
a need for evaluation. Chaplin did not exhibit any
confusion. Counsel responded that because the proceedings were
criminal, the
court ‘would in any event have regard to
mitigating circumstances and to a host of other factors before
sending him to imprisonment
directly’. The court, in imposing
sentence, had a very wide discretion. The court was entitled to
reject his version and
come to the conclusion that whoever was
sending those letters ‘would seem to have issues’. The
judge remarked that
the ‘prosecution’ (ie the applicants)
were not asking for an investigation and that it had not occurred to
the judge
himself that he was duty-bound to send Chaplin for
observation; the judge was not qualified to say that Chaplin was
sick. Counsel
responded that the ‘constitutional thing to do’
would be to order some sort of investigation.
[196]
In his replying submissions, the
applicants’ counsel said that, if one applied the analogy of a
criminal case, the defence
could not ask for an accused to be sent
for observation without some sort of medical evidence to support the
possibility that there
was something wrong with the accused. The
court could not do so
mero
motu
just because ‘the
circumstances are strange’. A foundation had to be laid. To the
extent that Chaplin’s counsel
relied on the applicants’
statement that there was something ‘pathological’ about
Chaplin’s behaviour,
the applicants did not have medical
expertise.
[197]
In the above exchanges, Chaplin’s
counsel was not asking the court to defer evidence and submissions on
sentence to a later
stage. What he was saying was that if the court
found Chaplin to be in contempt, it was within the court’s
power to order
some sort of psychological assessment rather than
imposing imprisonment. The notice of appeal does not raise, as a
ground of appeal,
that the court should have ordered a psychological
assessment rather than imposing imprisonment. The complaint was that
the court
had not considered Chaplin’s personal circumstances
‘which in a criminal trial would entail the leading of evidence

in mitigation prior to sentencing, which was not
done
in
casu
’
.
I
should add,
though, for the sake of completeness that I do not consider that
there was a sufficient foundation to have required
the court
a
quo
to seek a
psychological assessment. One cannot assume that all deviant
behaviour has its source in a mental disorder.
[198]
Turning to the question whether a
two-stage process should be followed in civil contempt proceedings,
Chaplin’s counsel did
not cite any South African authority to
that effect but referred us to Commonwealth decisions where
proceedings were adjourned
after a finding of contempt to allow the
defendant to be heard on the question of sanction. In this country
there are many cases
in which committal or fines have been imposed as
part of a single process, and indeed it has been the norm
hitherto.
[131]
[199]
The applicants’ counsel
drew our attention to
Soller
v Soller
[2000] 3 All
SA 531
(C) where Donen AJ rejected a contention – also raised
for the first time in an application for leave to appeal – that

sentence should not have been imposed without affording the
delinquent party an opportunity to lead evidence in mitigation of
sentence. In that case, the delinquent party’s counsel cited an
unreported judgment,
Heystek
v Reichenberg
Case
99/28370 WLD, in which Kuny AJ had allowed a respondent a reasonable
opportunity, after conviction, to lead mitigating evidence.
Donen AJ
said that considerations of fairness might have dictated such a
course in
Heystek
but
that the same did not apply to the case before him.
[200]
The institution of civil contempt
proceedings on notice of motion has been sanctioned by our highest
courts. Although such proceedings
have a criminal dimension, the
private applicant has a personal interest in having the contempt
addressed by an appropriate sanction.
The approved procedure involves
the private applicant setting out, in a notice of motion, the relief
she seeks, including the sanction,
and setting out, in her founding
affidavit, the facts relevant
inter
alia
to an appropriate
sanction. Unless a court orders a separation of issues in civil
proceedings, the whole case is determined pursuant
to a single
hearing, even though certain issues might only need to be determined
if the court finds in favour of the claimant on
other issues.
[201]
A respondent in civil contempt
proceedings is not an accused person. I accept that where a criminal
sanction is sought the respondent
is entitled to ‘analogous
protections’ to those enjoyed by an accused person but it is
the substantive aspect of protection
rather than procedural
technicalities that need to be assessed when deciding what
adaptations, if any, should be made to ordinary
motion proceedings.
[202]
In relation to sanction, the most
important substantive aspect of ‘analogous protection’ is
that the respondent in civil
contempt proceedings is entitled to be
heard on the question of sanction. The conventional single-stage
procedure accommodates
this. First, the respondent in his answering
affidavit is entitled, and is indeed expected, to advance facts
germane to the question
of sanction in case the court finds him to be
in contempt. Second, the respondent is entitled, during argument, to
make submissions
on the question of sentence if the court should find
against the respondent on the merits.
[203]
In conventional criminal
proceedings, the two-stage procedure is decreed by statute.
[132]
One obvious reason for this is
that evidence of previous convictions is generally inadmissible on
guilt but highly relevant to sentence.
For this reason, the Criminal
Procedure Act provides that previous convictions may only be proved
by the prosecution after the
accused has been convicted.
[133]
The two-stage procedure became
entrenched at a time when jury trials were the norm and where the
jury needed to be sequestered from
inadmissible evidence that might
taint their views.
[204]
There may be other reasons why,
in particular cases, fairness dictates that sentence be the subject
of a separate hearing after
conviction. However, and but for the
mandatory statutory regime, it would not necessarily be unfair in all
cases to have conviction
and sentence dealt with together. One knows,
from experience, that in the vast majority of criminal cases in the
lower courts the
facts relevant to sentence are placed before the
court by way of an
ex
parte
statement by the
accused’s lawyer. This could just as well be done in a
single-stage process.
[205]
In the present case, Chaplin had
the opportunity in his answering affidavit, and through counsel in
written and oral argument, to
deal with an appropriate sanction in
the event of the court finding him to be the author of the 2018
writings. He chose not to
do so. Even now, we are not told what
evidence he would like to adduce if the case were remitted for
sentence. The complaint seems
to be entirely procedural in nature.
[206]
We also know, with the benefit of
hindsight, that if a two-stage procedure had been followed, Chaplin
would not, in the sanction
phase, have acknowledged guilt and
expressed remorse. He applied for leave to appeal against his
conviction on the merits and continues
to this day to protest his
innocence.
[207]
This was also not a case where
there was a range of plausible factual findings which the court
a
quo
might have made on
the merits, ie this is not a case where Chaplin needed to know the
precise factual findings on the merits before
being able to advance
properly focused submissions on sanction. The applicants’ case
was conducted on the footing that Chaplin
was the author of the 2011,
2017 and 2018 writings. There was no realistic prospect of the court
finding that Chaplin did not author
the 2017 writings but did author
the 2018 writings. And there was no realistic prospect of the court
finding that Chaplin authored
some but not all of the 2018 writings.
If Chaplin was convicted, it would only have been on the basis that
he was the author of
the 2017 writings and that he deliberately and
wilfully breached the 2011 and 2017 orders by writing the seven
letters making up
the 2018 writings. The contingency of that finding
was one which Chaplin was able to address, as a fallback position, in
his answering
papers and in argument.
[208]
I do not think that fairness
dictates that in every contempt application where a criminal sanction
is sought a two-stage process
must be followed. To insist on a
two-stage process in every case would delay the finalisation of
contempt proceedings (where expeditious
determination is usually
desirable) and involve both parties in additional expense. Whether
fairness dictates that sanction be
held over for later determination
depends, in my view, on the circumstances of the case. I thus
consider Donen AJ’s approach
in
Soller
to be correct.
[209]
At least where the respondent is
legally represented, the starting point is whether the respondent has
asked the court to hold over
the question of sanction. If such a
request is made, the respondent would need to set out the
circumstances making it fair for
a separation to be granted. The
applicant would also be entitled to be heard on that question. In the
present case, Chaplin’s
counsel did not ask for sanction to be
held over for later determination. And as I have said, the
circumstances were not such as
to make a two-stage process the only
fair way of dealing with sanction. If the question of sanction
received scant attention in
argument, I venture to suggest that this
was for the reason that a sentence of six months’ imprisonment
could not seriously
be contested in the circumstances of the case.
[210]
I have considered the
Commonwealth authorities cited by Chaplin’s counsel. One must
be cautious about reliance on authorities
from jurisdictions where
the procedure for dealing with civil contempt may differ from ours.
More importantly, the cases cited
do not lay down a rule that a
two-stage process must always be followed. The cases represent
factual scenarios in which judges
have found it appropriate to
adjourn proceedings to afford the defendant an opportunity to make
representations on sanction. In
some of these cases the defendants
did not have legal representation or were convicted
in
absentia
. In others,
which are not in point, the contempt was common cause and only
sentence was in issue. Yet others are distinguishable
because they
dealt with contempt in the face of the court rather than
non-compliance with orders. The cases do not seem to me to
show more
than that which I unhesitatingly accept,
viz
that in all cases the court must
follow a process which is fair in the circumstances.
[211]
I thus reject the procedural
argument. It is not clear to me to what extent, if any, the notice of
appeal attacks the court
a
quo
’
s sentence
in the event of the procedural argument failing. It was submitted
that there was insufficient evidence before the court
a
quo
for imposition of
sentence, particularly regarding Chaplin’s personal
circumstances.
[212]
The facts before the court
a
quo
included the
information contained on Chaplin’s LinkedIn profile. Although
we do not know his exact age, his profile indicates
that he has been
engaged in property business in Cape Town since 1998. His university
studies must have been undertaken before
that. So it was known that
he was a middle-aged man from a privileged background and with a good
education. He also appears to
have been single and without children.
It was also apparent from the papers that, like him, his parents
lived in the Southern Suburbs
and were supportive of him. His mother
described herself as a retired businesswoman, and she has several
university degrees. Chaplin’s
father is an engineer.
[213]
Of course, it would have been
open to Chaplin to place further personal circumstances before the
court
a quo
but he chose not to do so. I do
not think the court
a
quo
was obliged to
ferret out more information about his background.
[214]
In addition to Chaplin’s
personal circumstances, a relevant sanction needed to take into
account the nature and extent of
his wrongdoing and the interests of
the community. His contempt in 2018 was a repeat of the contempt that
led to the 2017 order.
Repeated contempt by way of positive conduct
is particularly reprehensible. Furthermore, the conduct (the 2018
writings) was in
itself unlawful, quite apart from any question of
contempt. Courts are entitled to view this type of harassment in a
serious light.
[215]
Although the sparseness of the
court
a quo
’
s
sentencing remarks is unfortunate, I do not think that a sentence of
six months’ imprisonment for the 2018 contempt induces
a sense
of shock. Although this happened to be what the applicants sought in
their notice of motion, I do not accept that the court
a
quo
was unaware that
it had a discretion to impose less (or, with fair warning, more).
Chaplin’s counsel did not argue that six
months’
imprisonment was excessive, and did not propose a different period.
Had he done so, the court would no doubt have
addressed the argument.
[216]
From the exchanges between the
court
a quo
and counsel one can see that the
judge considered the possibility of bringing the 2017 sentence into
effect and imposing a suspended
sentence for the 2018 contempt, so
that Chaplin would continue to have the proverbial sword hanging over
his head. In the event,
the course actually followed by the court was
more favourable to Chaplin. And even if I were to accept that the
absence of full
motivation vitiates the court
a
quo
’
s sanction
so that we are at large to reconsider an appropriate sanction, I
would not impose less than six months’ imprisonment.
[217]
The same applies to the
triggering of the suspended sentence of 2017. The 2017 writings
comprised a much larger body of abusive
and threatening writings than
the six 2018 letters. A sentence of six months’ imprisonment
for unlawful and contemptuous
behaviour spanning a period from March
2015 – May 2017 and comprising more than a hundred abusive and
threatening writings
was not unreasonable, and indeed there was no
appeal against that order. Chaplin was granted an opportunity to
remedy his ways
by refraining from further unlawful and contemptuous
behaviour. He wilfully threw away that chance, and in my view the
triggering
of the suspended sentence was almost inevitable. He can
regard himself as fortunate that the two sentences are to run
concurrently.
Once again, I note that Chaplin’s counsel did not
argue in the court
a
quo
that if his client
was found guilty of the contempt it was inappropriate to activate the
2017 sentence.
[218]
As a matter of formulation, para
2 of the court
a quo
’
s
order was wrong, since the court was not sentencing Chaplin afresh
for the conduct which formed the subject of the 2017 application
but
was ordering a sentence already imposed to be brought into operation.
The court
a quo
in this respect followed the
formulation of para 3 of the applicants’ notice of motion. I do
not think, however, that the
judge was under a misapprehension as to
the substance of what he was doing.
Conclusion
and costs
[219]
The applicants’ employment
of two counsel in the appeal was justified. Although they sought and
were granted costs on the
attorney and client scale in the court
a
quo
, they did not ask
for a punitive costs order in the appeal.
[220]
I
make the following order:
The appeal is dismissed with
costs, including the costs of two counsel.
______________________
O L
Rogers
Judge
of the High Court
Western Cape Division
APPEARANCES
For
Appellant
R G L
Stelzner SC (with him M S M Harrington)
Instructed
by
Cornel
Stander Attorneys
2
nd
Floor, Pizza on Church
39
Adderley Street
Cape
Town
For
Respondent
F
van Zyl SC (with him C J Quinn)
Instructed
by
Werksmans
Level
1, No. 5 Silo Square
V&A
Waterfront
Cape
Town
[1]
1/86-87. [References to the main record are volume number/page
number. In the case of the supplementary record, the volume number

is preceded by the letter S.]
[2]
S1/13 para 33 read with S1/75
[3]
S1/76 and 8/726-727.
[4]
S1/81-89. This was the ‘September’ issue of
Noseweek.
[5]
S1/91-93.
[6]
Para 16.
[7]
S1/98-99.
[8]
4/346.
[9]
Eg ‘
ayersrock’,
‘Leta Worst’, ‘Blue Fresnaye’, ‘z.zed’,
‘iamfickle’, ‘Croc
Dundee’, ‘Koala
Joey’, ‘Koalanet’, ‘Talented Ripley’,
‘Vulture’, ‘Onion
Award’.
[10]
Eg
eg ‘Gerda
Fine’, ‘Adele Scheepers’, ‘Gerda Scheepers’.
Vermaas has an aunt and uncle called Gerhard and Gerda
Scheepers. Gerhard operates a citrus exporting business called Cape
Citrus:
Fine para 34.2 at 4/280.
[11]
S1/26.
[12]
Eg
Jesus Saviour’,
‘Jesus Saint’, ‘kangaroo’, ‘Croc
Dundee’, ‘Talented Mr Ripley’,
‘Rinkels’.
[13]
Eg ‘
Lauren
Scheepers’, ‘Adele’, ‘Adele Scheep’,
‘Gerda’, ‘Gerda Merwe’
[14]
4/345.
[15]
4/338-339.
[16]
4/335.
[17]
4/336.
[18]
4/339.
[19]
Given the writer's statement that citrus farming was carried on in
this area, the reference is perhaps to Kirkwood in the Eastern
Cape.
[20]
4/337.
[21]
4/342.
[22]
This is what Chaplin later told Gibson: 4/324.
[23]
4/324.
[24]
4/337.
[25]
4/341.
[26]
4/338.
[27]
4/340.
[28]
S2/140.
[29]
The format of the screenshot caused the applicants to conclude that
the presence of Chaplin's email address on the screen proved
that
the computer was his. It turned out that the email address was part
of the article published in the
Weekend Argus
of 10 September
2011. Although this error was convincingly demonstrated in Chaplin's
answering affidavit, he did not take issue
with the fact that the
date on the computer was 14 February 2018.
[30]
Para 6 at 7/600.
[31]
Para 32.
[32]
Para 39.
[33]
Para 40.
[34]
Hollington v F Hewthorn & Company Ltd
[1943] 2 All ER 35.
[35]
Paras 41-42.
[36]
Paras 43-44.
[37]
Paras 46-48.
[38]
Para 49.
[39]
Paras 51.
[40]
Paras 53-57.
[41]
Paras 53-57.
[42]
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(
SCA);
Matjhabeng Local Municipality v Eskom
Holdings Ltd & others; Mkhonto & others v Compensation
Solutions (Pty) Ltd
[2017] ZACC 35
;
2018 (1) SA 1
(CC) para 67.
[43]
[2014] ZASCA 5
;
2014 (5) SA 317
(CC) paras 50-62.
[44]
Para 55.
[45]
See
R v Butelezi
1944 TPD 254
at 259;
R v D
1958 (4) SA 364
(A) at 369B-C;
S
v D
1991 (2) SACR 543
(A) at 546d-h;
S v Nduna
2011 (1)
SACR 115
(SCA) para 17.
[46]
QG attached to their report all the writings furnished to them. The
‘unknown’ (‘UK’) texts are at 3/233-245
(the
2011 writings) and 3/245-255 (the 2018 writings). When their
'failure' to deal with the 2017 writings was pointed out by
Kotzé,
they replied – fairly enough – that they had not
analysed those writings because they had had no knowledge
of or
access to them (7/591).
Grundlingh
did not attach the writings to her report but they were furnished by
Chaplin’s attorneys upon request (6/435
ff). These are not
arranged in a satisfactory way. The 2011 writings are at 6/442-447
and 455-458, duplicated (in different formats)
at 6/468-487. The
2018 writings are at 6/448-449 and 459-467, duplicated (in different
formats) at 6/488-491. All the remaining
documents furnished by
Chaplin’s attorneys were authentic writings of Vermaas and
Chaplin. By contrast, most of the 2017
writings are attached to
Kotzé's 2017 report at 4/334-349, though some 2017 writings
(not attached to Kotzé's report)
appear elsewhere in the
record (S1/21-22, 59; S2/107, 108, 110, 113, 134, 136, 137, 140, 141
and 157).
[47]
3/262.
[48]
6/472 and 484.
[49]
6/483.
[50]
6/458 (to Gibson);5/360 (to Mr C Hessian).
[51]
4/481.
[52]
See, in particular 4/342 and 1/78 from the 2017 and 2018 writings
respectively.
[53]
A vulture fund is a private equity fund targeting distressed assets.
[54]
This column, which is still running, is in fact called ‘Orchids
and Onions’.
[55]
3/267.
[56]
6/484 and 472.
[57]
6/457.
[58]
6/474.
[59]
6/472 and 5/361.
[60]
S1/90.
[61]
6/455.
[62]
6/453-454.
[63]
4/322 ( 'psychological' and ‘psychic’).
[64]
5/362,
6/458.
[65]
4/322.
[66]
4/358 and 5/359.
[67]
The examples of her usage will be found in the
writings at
3/255-261, 6/453-454, S1/68 and S1/77.
[68]
See
eg:
‘
unscrupulous
lawyer’ (5/359, 6/485), ‘ascertain’ and ‘stoop
to such unethical standards’ (6/458),
‘personal
vendetta’ and ‘travesty of justice’ (4/358),
‘petty domestic squabbles’ (5/359),
‘waiting with
bated breath’ (6/473), ‘saga’ (5/361, 6/485),
‘bringing the legal fraternity into
disrepute’ and
‘prestigious’ (6/481,  485), ‘cover up one’s
wrongdoings’ (3/237), ‘red
rag in front of a bull’
(S1/90), ‘coping mechanisms’ and ‘out of kilter’
(3/237), ‘maliciously
and methodically’ (5/362, 6/458).
[69]
Boshoff v Union
Government
1932
TPD 345
at 350-351;
Turk
v Turk
1954
(3) SA 971
(W);
Caesarstone
Sdot-Yam
Ltd v World of
Marble and Granite 2000 CC & others
2013
(6 SA 499
(SCA) paras 20-21.
[70]
T
he issue in the 2017 application was
whether, by authoring the 2017 writings, Chaplin was in contempt of
the 2011 order. That
question was finally disposed of by the 2017
order.
Res judicata
would apply if the applicants had tried
to bring the same claim a second time. The applicants did not do so.
Their 2018 application
advanced a different claim, namely that
Chaplin, by authoring the 2018 writings, was in contempt of the 2011
and 2017 orders.
There could be no defence of
res judicata
to
that application. However, an issue arguably determined in the
course of the 2017 application,
viz
whether Chaplin was the
author of the 2017 writings, was evidentially relevant to the
question whether Chaplin was the author
of the 2018 writings, so the
question is whether Chaplin was estopped, in the 2018 application,
from contesting the implied finding
on that issue.
[71]
R v
Manaesewitz
1933 AD 165.
[72]
1939 CPD 221.
[73]
[1974] 1 QB 398.
[74]
[1977] AC 1.
[75]
R v Story
[1978] HCA 39
;
(1978) 140 CLR 364
para 26 (Barwick
CJ), paras 5-6 (Gibbs J) and paras 11-12 (Murphy J);
R v Rogers
[1994] HCA 42
;
(1994) 181 CLR 251
para 17 (per Mason J) and para
24 (per Dean and Gaudron JJ);
R v Mahalingan
2008 SCC 63
CanLII;
[2008] 3 SCR 316
para 57.
[76]
R v Davis
[1982] 1 NZLR 584
(CA);
R v Degnan
[2001] 1
NZLR 280
paras 8-9;
Clifford v Director of Public Prosecutions
[2013] IESC 43
paras 6.8-6.10.
[77]
Prinsloo NO & others v
Goldex 15
(Pty) Ltd & another
[2012] ZASCA 28
;
2014 (5) SA 297
(SCA) paras 24-26.
[78]
[2020] 2 All SA 469 (GP).
[79]
Mulaudzi v Old Mutual Life Insurance Company (South Africa)
Limited & others; National Director of Public Prosecutions &

another v Mulaudzi
[2017] ZASCA 88
;
2017 (6) SA 90
(SCA) para
40. See also, in this court,
Graham v Park Mews Body Corporate &
another
2012 (1) SA 321
(WCC) paras 59-65.
[80]
Paras 23.2 - 23.3.
[81]
Paras 4.4 - 4.6 at 4/270-271; para 11 at 4/273; para 74 at 4/290.
[82]
4/348; also at S2/153.
[83]
4/341; also at S2/152.
[84]
S1/59.
[85]
4/345.
[86]
4/340 (two) and 347.
[87]
4/340.
[88]
4/340.
[89]
4/340.
[90]
4/340-341.
[91]
4/342.
[92]
See Chaplin’s email to Sarah Wassall at
4/319. The date 2010 can be inferred from the content of the
email.
[93]
See Chaplin’s email to Gibson at 4/321.
[94]
4/325-333.
[95]
4/342.
[96]
S2/141.
[97]
In the anonymous posts of 2 August 2016 (once) and 24 October 2016
(twice); in the 'Annual Award' posting of 24 October 2016
(four
times); in the 'Marion’ posting of 6 February 2017 (three
times) and in the ‘Leta23’ posting of 23 March
2017
(once).
[98]
4/342.
[99]
4/334.
[100]
4/347 and 4/337-338.
[101]
S2/113.
[102]
4/347-348.
[103]
4/339.
[104]
4/338.
[105]
4/342.
[106]
S1/21-22.
[107]
4/343.
[108]
Paras 62-62 at S21,
[109]
4/343.
[110]
These are to be found in the writings at 4/334-343, 345, S1/22-23,
S2/111, S2/136, S2/140 and S2/157.
[111]
4/338-339.
[112]
3/255.
[113]
1/82.
[114]
1/83.
[115]
My colleague, Judge Steyn, a member of this appellate panel, has
confirmed this.
[116]
See at S1/71, 73, 75, 84, 85.
[117]
Paras 37 and 40 at 7/563 and 565.
[118]
Para 65 above.
[119]
4/316, 319, 323.
[120]
6/499-500. In the other formal writings she examined – at
6/503-506 – he used double inverted commas.
[121]
4/334, 339, 3432, 343, 345 and 346. On these pages there are at
least 13 sets of double inverted commas.
[122]
4/338: It was the ‘Boomerang’ comment…
[123]
4/316.
[124]
4/317.
[125]
4/318.
[126]
There are random confirmations of this in the record: eg NRF’s
letters/emails at 1/46, 52; Fine’s emails at 4/350
and 353;
Gibson’s email at 4/352; Kotzé's email at 4/355-6;
Grundlingh’s email at 6/435, Chaplin’s attorney’s

emails at 6/436 and 7/568; Martin Welz’s email at 8/724;
BVPG’s letter at 8/725; Lambert-Porter’s letter at

S2/100.
[127]
3/225-232.
[128]
4/315-324 (21 emails by my count.)
[129]
3/255-262.
[130]
6/492, 494 and 495.
[131]
Examples include
Protea
Holdings Ltd v Wriwt & another
1978
(3) SA 865
(W),
Sparks v Sparks
1998
(4) SA 714
(W),
Chetcutti v Chetcutti
[2001] 1 All SA 75
(Tk),
Jeebhai
v Minister of Home Affairs & another
2007
(4) SA 294
(T) and
H v M
2009
(1) SA 329
(W).
[132]
See, in particular, s
274
of the
Criminal Procedure Act 51 of 1977
.
[133]
Section 271.