2009/05/07
A GRAHAMSTOWN judge will break legal ground after ordering that a R12million defamation lawsuit between two Eastern Cape hunters be heard in terms of American law.
Acting Judge Lilla Crouse has ruled that the lawsuit brought by Alicedale game lodge owner Barry Burchell against his former Texan business partner Scott Anglin be heard in Grahamstown, but under the law of Nebraska, USA.
It is the first time local judges have heard a defamation case based on American law.
Burchell, who runs a hunting operation, Frontier Safaris in Alicedale, is suing Anglin for loss of business and defamation after the Texan allegedly discouraged an American company from doing business with him.
Burchell used Cabelas booking agents in Nebraska, through which he got the majority of his American hunting clients. However, after a fallout with Anglin, the Texan informed Cabelas that Burchell was “guilty of criminal activities”, “notoriously abusive to his own employees”, “unethical” in his hunting practices, and that he did not pay his bills, according to case documents.
Burchell said that this had damaged his reputation and caused Cabelas to stop placing bookings with Frontier Safaris, allegedly costing him millions of rands in profit.
He instituted a lawsuit of almost R12million against Anglin and also instituted several other claims for smaller amounts.
Anglin counter-claimed for damages amounting to R775000 after alleging that Burchell had vastly overstated the purchase price of a farm in Alicedale in which Anglin had bought a 25 percent share.
Both Burchell and Anglin had agreed that the South African courts had jurisdiction, but differed on which country’s law should be applied. Anglin’s lawyers had been in favour of American law.
Crouse ruled that “the principal harm” to Burchell’s reputation as a result of comments made by Anglin was “suffered” in Nebraska.
This was one of the factors that persuaded her that it was “more appropriate” that South African law be “displaced” and, instead, the defamation law of the State of Nebraska be applied.
The matter may require importing legal expertise to assist the South African lawyers.
Crouse pointed out that because of the high value placed on free expression in the United States constitution, defamation law was weighted heavily in favour of a defendant.
“Contrary to SA law, the burden could be on the plaintiff (Burchell) to prove that the defamatory remarks are untrue and/or that the defendant (Anglin) acted in malice.”
The matter will now be heard in the Grahamstown High Court by an Eastern Cape-based judge and argued by South African lawyers.
Crouse emphasised that the judge would have to ensure that the law of Nebraska met South African constitutional standards.
She also emphasised that her decision did not mean that the law of Nebraska was applicable in the quantification of the damages.
“This decision is also left open for decision after argument at the subsequent trial.” - By ADRIENNE CARLISLE
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