Pretoria - The best interests of Nelly the dog were the subject of a legal battle in the South Gauteng High Court in Johannesburg.
Two neighbours who had joint custody over the dog were involved in a tug-of-war on visitation rights.
The two families had joint ownership over Nelly, whose breed was not mentioned in the judgment, while they lived in Roodepoort. But one relocated to Cape Town and wanted Nelly to visit via plane. The other neighbour insisted this was too taxing for Nelly.
Shaun Smith and Sheena and Pawel Smolak were previously neighbours. Together they took care of Nelly until Smith relocated to Cape Town, resulting in a change to their responsibility and time with Nelly.
Smith launched an application to exercise his co-ownership rights over Nelly. The Smolaks have denied him co-ownership rights, he said.
In December 2017, the neighbours became co-owners of Nelly when her previous owner transferred ownership to them after they paid Nelly’s vet bill and because they could provide more suitable care for her.
At that time the three parties agreed they shared equal responsibility over Nelly as they resided in the same complex and each contributed to her care. They jointly took out pet insurance for her and established an emergency fund as she was sickly.
Smith apparently contributed more towards the expenses, including towards her grooming and food.
Prior to Smith’s departure to Cape Town, he and the Smolaks had a good relationship without any need for a formal written arrangement to regulate their rights over her.
But in 2020 when Smith relocated to Cape Town, he discussed the possibility of paid flights to Cape Town for the dog and requested that the Smolaks temporarily take care of Nelly while he settled into his new home.
Smith said he did not want to subject Nelly to the chaotic process of unpacking and moving.
In October 2020 the Smolaks sent an email to Smith, stating Nelly would reside with them for 99% of the time, and that Smith could visit on an ad hoc basis when in Johannesburg.
They indicated they did not agree with transporting Nelly to Cape Town, as they did not believe it was feasible nor was it in Nelly’s interests.
Smith disagreed and denied that he ceded possession of Nelly indefinitely or that he ceded equal co-ownership of Nelly. His view was that possession and ownership of Nelly would only be relinquished upon emigration outside South Africa. In support of his co-ownership he indicated that he researched the option of flying Nelly between Johannesburg and Cape Town at his own cost and maintained the payment towards her medical insurance.
The parties tried to find a solution via mediation but this was unsuccessful. He did not know where he would live in Cape Town and whether his home would be pet friendly. He also requested that Nelly be taken to visit his mother from time to time. The Smolaks agreed to this arrangement.
Judge Shanaaz Mia said Smith did not relinquish his co-ownership of Nelly, but she was not convinced that Smith would suffer irreparable harm if Nelly could not fly to Cape Town.
She took into account a report filed by a witness which suggested long-distance travel was not suitable for Nelly and would be harmful for her. The trips between Johannesburg and Cape Town by flight or road may contribute to her deterioration in health.
But, there did not appear to be any reason why Smith could not visit Nelly in Joburg to maintain his rights to her, the judge said.
Pretoria News