Dog given eviction order

After living at the Mount Edgecombe Country Club estate for two and a half years, Theodore, a 3-year-old St Bernard, has been given three months to find a new home.

After living at the Mount Edgecombe Country Club estate for two and a half years, Theodore, a 3-year-old St Bernard, has been given three months to find a new home.

Published Sep 18, 2014

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Durban - Theodore, a three-year-old St Bernard, will have to find a new home after a judge ordered that he has three months to leave the Mount Edgecombe Country Club estate where he has been living with his owners for two and half years.

The giant, adored pet, has been at the centre of a long legal battle between the upmarket estate’s management association and his owners, businesswoman Pathmasolahani (Rita) Abraham and her attorney son Edward, who approached the Durban High Court in a desperate attempt to keep him.

But on Wednesday, that battle was lost when Judge Peter Olsen said the rule - that only non-vicious, small breeds of dogs weighing 20kg or less when fully grown - 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 who are elected to be arbiters and enforcers of those rules,” the judge said.

The association first ordered the Abrahams get rid of Theodore in 2012 because they had never applied to register him.

When they did apply “believing there were good prospects of success” their application was refused, with the association saying that upping the 20kg rule had been put to a residents’ vote twice before, had been rejected, and it had no discretion to bend the rules.

If this was so, the Abrahams argued, then the rules were unreasonable and the decision to reject their application should be set aside and the matter referred back for reconsideration.

In his ruling handed down on Wednesday, Judge Olsen said the directors’ power lay in a contract and the rules imposed by private ones entered into voluntarily when electing to buy in the estate rather than elsewhere.

Pointing to the extent that the rules “control the environment”, including the fact that awnings and satellite dishes cannot be put up without approval, veranda furniture has to comply, maximum occupancy rates, garden design layout restrictions, issues of security and speed limits, and fines of between R500 and R10 000 for breaches, he said they were restrictive.

But, he said, the introduction to the rules pointed out that they should not be seen to be “unduly so”, because they stood as a framework to safeguard and promote “appropriate, sensible and fair interaction” among residents.

“Generally speaking, tampering with the framework tends to bring the edifice down,” he said.

The association had stressed the purpose of having a fixed weight for dogs and a reason for a ban on cats altogether was because the estate was a registered conservancy with birds and wildlife.

Regarding the contention that other large dogs were allowed on the estate and their owners were “white”, the judge said the association had explained that at one stage there had been laxity in enforcing the rules and these dogs were brought on to the estate during that time.

“The association is of the view that there is nothing it can do about it. But as to dogs brought in after the rule was enforced, it has obtained court orders for their removal,” he said, saying it seemed that the owners were all white.

He said the directors had a duty to impose the rules and there was no room - save for extraordinary cases where, for example, a blind person needed a guide dog - to ignore the agreed criteria.

“The Abrahams have not shown there is anything extraordinary about their case,” the judge said.

In granting an order enforcing the removal of the dog, he amended it to give the Abrahams three months, not 14 days, to do so.

He ordered the Abrahams to pay the costs of the application.

They did not respond to requests for comment on Wednesday.

It is believed they may appeal the judgment.

The Mercury

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