Durban - The owner of a 3-year-old St Bernard, which has been the centre of a tussle with the body corporate of the Mount Edgecombe Country Club estate, has been denied leave to appeal against a court decision that he get rid of the dog.
The giant pooch, Theodore, although gentle, dramatically exceeds the estate’s size category for permissible dogs.
Its owner, Edward Abraham, an attorney, said the long road to keep Theodore was over.
“We have to take stock of our position and explore our options.”
Abraham said if he wanted to take the matter further, he would have to petition the Supreme Court of Appeal.
He had not yet decided whether he would do that.
Abraham said the dog was like a son, “and how do you get rid of your child?”
The initial order, giving Abraham three months to rehome the animal off the estate, was granted in September by Judge Peter Olsen, who on Wednesday also denied leave to appeal in the Pietermaritzburg High Court.
Judge Olsen’s order was suspended pending the leave to appeal application which means Abraham, who shares Theodore with his mother, Pathmasolahani (Rita), now has three months from on Wednesday.
The estate’s management association first ordered the Abraham family to get rid of Theodore in 2012 because they had not applied to keep him. When they did, the application was refused.
The association said that increasing the 20kg rule (only non-vicious, small-breed dogs weighing 20kg or less when fully grown are allowed) had been put to a residents’ vote twice before and had been rejected. It had no discretion to bend the rules.
Abraham argued that the rules were unreasonable and that the decision to reject their application should be set aside.
Judge Olsen said in the main judgment that the 20kg rule was not discretionary and was contractually fair.
“This case has gained local notoriety upon the basis that it concerns a rather striking St Bernard dog. But this is not a case about a dog. It is about human conduct, the consequences of voluntary submission to special rules and regulations, and the duties of those elected to be arbiters and enforcers of those rules,” the judge said.
He said that the directors’ power lay in a contract and the rules imposed by contracts entered into voluntarily when electing to buy in the estate, rather than elsewhere.
The Mercury