- Theodore, a large St Bernard dog, is owned by long-time residents of a Golf Estate
- One of the estate’s Conduct Rules dealing with the keeping of pets - and motivated no doubt at least in part by the estate’s status as a nature conservancy - bans cats altogether and restricts dogs to breeds neither aggressive nor large (20 kg or over when mature)
- Since mature St Bernards weigh in at 55 – 80 kg, Theodore’s owners were refused the required written permission to keep him on the estate
- They asked the High Court to overrule this refusal, arguing that management has a discretion to allow a deviation from the rules
- The Court disagreed, holding that the rules are worded in such a way as to bind management to strict enforcement of the stated restrictions (other than a “truly exceptional” case such as a guide dog for the blind).
- Nor, held the Court, is it relevant that there are other large dogs already on the estate dating from a historical period of lax enforcement of the rules. Firstly, failure to enforce a breach of contract by one owner has no bearing on a breach by another owner. Secondly, whilst management did not sanction the presence of these other dogs it had been given legal advice to the effect that it would not succeed in any application for a court order removing them (which highlights a particular danger for management associations - see below). The end result - Theodore’s owners have 3 months to remove him from the estate.
Buyers and Management Associations: Critical considerations
Buyers: Although media reports suggest that an appeal against this particular judgment is in the offing, never buy into a residential estate until you have fully understood and accepted all the rules and regulations you are agreeing to.
Management Associations: Critical to the Court’s decision in this case was the tight wording of the Conduct Rules in question – in formulating them, make sure that they will be enforceable. Take full legal advice in any doubt.
Secondly, do not make the mistake of having rules and then not enforcing them. In an earlier High Court case, the Home Owners Association of a Game Reserve was barred from enforcing its rule against the keeping of any domestic pets, because on the particular facts of that case it was held to have waived its rights to do so after an 8 year failure to take any enforcement action. Presumably that is why management in the “Theodore” case was advised to enforce its rules only against “new arrivals”.
Note: the “waiver” case is Buffelsdrift Game Reserve Owner's Association v Holkom and Others (58258/2013)  ZAGPPHC 474  ZAGPPHC 474
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