Barking up the wrong tree

Private Property South Africa
Lea Jacobs

It appears that a Durban family is willing to fight to the bitter end in order to keep their beloved dog at home on the Mount Edgecombe Country Club Estate. While pets are allowed on the upmarket estate, unfortunately, Theodore, a three year old St Bernard who weighs in at a hefty 75kgs, exceeds the estate’s weight limit of 20kgs. As such, Theodore has become the centre of a legal storm between his owners and the Mount Edgecombe Country Club Estate Management Association Two, which insists the animal has to go.

The courts have so far agreed with the management association and ruled in September that the dog had to be removed from the estate within three months. The judge, Peter Olsen, has also turned down the family's leave to appeal. However, in an effort to get the ruling overturned, the dog’s owners have indicated that they will approach the Supreme Court of Appeal (SCA).

You have to stick to the rules

Although any animal lover will understand the heartache this family has been going through, surely the owners understood that the St Bernard was going to exceed the 20kg rule when they bought him as a puppy some three years ago?

Indeed, the judge: “This case has gained a measure of local notoriety upon the basis that it concerns a rather striking St Bernard dog named Theodore. But it should be stated at the outset that the case is not about the dog. It is about human conduct, the consequences of voluntary submission to special rules and regulation, and the duties of those who are elected to be the arbiters when the enforcement of such rules is the issue.”

Essentially what the judge is saying is that when you move onto an estate, you have to abide by the rules.

Ignorance isn’t a defence

You can’t bend these to suit yourself and if you think any of the rules are not suited to your lifestyle, then move on and find an estate that will accommodate you and will be a better “fit”. In the Mount Edgecombe situation, the fact that the estate became a nature conservancy in 2002 was in all probability the reason for the weight and breed restriction in the first place. The owners of the dog had, according to the legal team representing the estate, signed a written agreement to abide by the rules. However, according to court papers Edward Abraham, the dog’s owner, stated that he had not personally been aware of the rules relating to dogs on the estate, or that they were required to be registered. Unfortunately this argument doesn't appear to have held much water as the judge found that “the second applicant (Abraham) would presumably have been aware of the fact that any shortcoming in his knowledge of the rules was something for which he was responsible”.

While the fight to keep Theodore may not yet be over, one thing is abundantly clear – rules are put in place to protect other homeowners and in this particular instance, the wildlife on the estate.

When purchasing a property on any estate and signing an agreement of sale, buyers are agreeing to abide by the rules and regulations. It is always going to be very difficult to persuade a court that ignorance of the very same regulations constitutes a defence.

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