Durban - The owners of a 3-year-old Saint Bernard, who were given three months by the Durban High Court to remove him from the Mt Edgecombe Country Club Estate, are fighting the ruling.
Last month, Judge Peter Olsen ruled that 75kg Theodore should go after finding that the family had breached the estate’s rules that dogs living there should not exceed 20kg when fully grown.
The decision to appeal means that Theodore, at the centre of a two-year legal dispute between the estate and his owners, Pathmasolahani (Rita) Abraham and her son, Edward, may not need to vacate Mt Edgecombe by the December deadline.
In a notice of application for leave to appeal, filed with the court this month, the Abrahams argued that the court erred in reasoning, matters of fact and law when it ruled against them.
They argued that the appeal raised important issues of law, including the extent of the discretion which the management body of a private estate had in relation to conduct rules. They added that the appeal was of interest to the public and “the numerous housing developments in the country”.
Terry Keller, the estate manager, said they would be guided by the legal process. “It is their legal right to appeal and we will now wait for the legal process to unfold,” he said.
The application is sitting with Judge Olsen who is expected to rule soon on whether to grant leave to appeal.
Last month he dismissed the family’s argument that while Theodore was a large breed, he was not aggressive and that they were being targeted unfairly because other large breeds lived on the estate.
He also rejected their argument that they were being unfairly targeted by the association because they were Indian, as legal action had been taken against four other white residents who had large dogs.
The issue went to the Durban High Court in 2012 after the association ordered the Abrahams to remove Theodore.
Edward Abraham said they planned to pursue all legal routes to ensure their dog, “a family member”, was not kicked off the estate.
“This is not about us versus the board. This is about us keeping a family member with us,” he said.
“What has happened is not right and it has taken a toll on our family as we do not know whether or not our family member will be allowed to live with us or not.
“It breaks my heart, as in three years this dog has not hurt a mouse but is being kicked out of his home,” he said.