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Thursday Jul 10, 2014

Pets win reprieve from homeowners' association rules

Two Jack Russell dogs - Frikkie and Snippie - were this week the subject of a North Gauteng High Court judgment that residents of a game reserve could keep their pets, in spite of homeowners' association rules that no dogs or cats were permitted.

This was good news to Frikkie and his owner, identified only as Mr Brand in the judgment. Snippie has since died.

When Brand moved onto the estate in 2005, Snippie moved in with him. He bought Frikkie three years later.

Snippie died in December 2011. But, as Judge Selby Baqwa said in his judgment, Brand still had his faithful companion Frikkie.

Despite allowing owners to have their dogs and cats for the past eight years, the Buffelsdrift Game Reserve Homeowners' Association now objected to pets. The association applied for an order to interdict residents from keeping pets.

They asked the judge to authorise the association to 'take the necessary steps to permanently remove the animals into the care of a veterinarian or animal shelter' should the owners refuse to get rid of them.

While the pet owners conceded they had signed an agreement when they bought their homes that they may not keep cats or dogs, they argued that the association, by not sticking to the no-pet rule for years, had waived the clause.

Judge Baqwa agreed and remarked that it was in fact 'unconscionable' for the association to, after years of turning a blind eye, apply for a final interdict to stop people from owning pets.

The applicant pointed to the clause in the agreement they entered into with buyers of property on the farm, stating that no cats and only guide dogs could live with owners on the property.

Judge Baqwa analysed case law pertaining to the waiver of a clause and said although a contract could not be amended because of a non-variation clause, a party could waive any right flowing from the contract.

The applicant argued that the pet owners had committed an injury to the association by contravening its constitution of not keeping pets.

The judge said the applicant had not demonstrated prejudice resulting from breaching the pet-owner clause.

The judge said the chairman of the association conceded during a meeting that dogs and cats could be kept under certain conditions. He said it was difficult to comprehend why the applicant now said it had no choice but to come to court.

The judge marked his judgment to be reportable, which means it would be noted in case law journals.

The Star


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