Durban - Theodore, a 3-year-old St Bernard, will take centre stage in the Durban High Court on Friday when a protracted legal battle between his owners and the management association of the golf estate where they live will finally be argued before a judge.
Pathmasolahani (Rita) Abraham and her son Edward’s battle with the Mount Edgecombe Country Club Estate management association began in 2012 when the association ordered them to get rid of Theodore, then about a year old, citing estate rules that dogs had to be under 20kg when fully grown.
They launched an urgent court application, seeking an order that they be allowed to keep their pet, claiming it was one of the most “non-aggressive breeds” and that other residents had been allowed to keep dogs such as Labradors and German Shepherds.
Estate manager Basil Schreiber, in an opposing affidavit, said this was not true and that many other residents had been fined and, if they did not adhere to the rules, had been taken to court.
Referring to “evidence” put up by Abraham - photographs of other large dogs on the estate - he agreed that people did sometimes break the rules but he could not comment on these specific examples because he did not know who the pets belonged to.
The matter was set down to be argued in October last year, but was adjourned so that Abraham could submit a motivation for Theodore to be allowed to remain on the property.
Abraham, in a letter to the association’s attorney, which forms part of the court record, said “it was understood there were good prospects and the entire matter would be resolved”. In her motivation to the association, she said Theodore, who was then 22 months old and weighed 75kg, had been properly trained and neutered and his breed and temperament were “conducive to estate living”.
However, the application was turned down. Minutes of the meeting reflect that members of the board believed there were no exceptional circumstances to deviate from the rules, which the Abrahams had signed when they moved on to the estate in 2000 and had “blatantly disregarded”.
The board pointed out that there had been two previous attempts to amend the 20kg rule, but there had always been insufficient support from residents, indicating that it “reflects the majority view that larger dogs are undesirable”.
The Abrahams have now set the matter down in court again and it will come before Judge Peter Olsen this morning.
In written argument submitted to the court, advocate Kemp J Kemp, SC, for the Abrahams, said the association claimed it could not consider the application because it had no discretion.
He argued that if it did not have a discretion, the rules were unreasonable and should be set aside.
If it had a discretion, then it was common cause that it had not exercised it. “It is no answer that the applicants became members of the association, aware of the rules or ignorant of these at their peril. Membership is premised on reasonable rules and the application of those rules,” he argued.
Advocate Andre Stokes SC, for the association, said in his written argument that if the applicants wanted to argue that the rule was unreasonable, then they should have brought a challenge or review to the rule itself, not just a challenge to it being enforced.
He said unless the Abrahams could show that the association had acted maliciously or improperly, the court could not intervene in its decisions.
The decision, he said, accorded precisely with what the rules required and was not irrational.
Judgment is expected to be reserved.