Weekend Argus (Saturday Edition)

Co-parents in dog box over Nelly’s visitation rights

- ZELDA VENTER zelda.venter@inl.co.za

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 in a tug-of-war on visitation rights to the animal.

The two families had joint ownership over Nelly, whose breed was not mentioned in the judgment, while they lived in Roodepoort. One then relocated to Cape Town and wanted Nelly to visit by plane. The other said that this was too taxing for Nelly.

Shaun Smith and Sheena and Pawel Smolak were previously neighbours and together they took care of Nelly. This arrangemen­t endured until Smith moved to Cape Town. A change then arose regarding what the parties intended in relation to their responsibi­lity and time with Nelly.

Smith launched an applicatio­n to exercise his co-ownership rights over Nelly. According to him, the Smolaks have denied him co-ownership rights.

In December 2017, the neighbours became the co-owners of Nelly when her previous owner transferre­d ownership to them after they paid Nelly’s vet bill and because they were able to provide more suitable care for her.

At that time each of the three parties agreed they shared equal responsibi­lity over Nelly as they resided in the same complex and each contribute­d to the care of Nelly. While in the same complex they each exercised equal and alternate possession of the dog.

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 maintained a good relationsh­ip and exercised care over Nelly without need for a formal written arrangemen­t.

Each day of the week Nelly would alternate between Smith’s and the Smolaks’ homes where one party would drop her off. During holidays, leave days and public holidays, they would schedule the time by agreement. This position changed in 2020 when Smith moved to Cape Town.

Smith discussed the possibilit­y of paid flights to Cape Town for the dog and requested the Smolaks temporaril­y take care of Nelly while he settled into his new home. Smith said he did this as 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 where they mentioned that Nelly would reside with them for 99% of the time, and Smith could visit on an ad hoc basis when in Johannesbu­rg.

They indicated they did not agree with longer periods which entailed transporti­ng Nelly to Cape Town, as they did not believe it was feasible and did not agree to this as an option.

They put forward their view that the agreement had been that whichever party decided to leave South Africa would in that decision decide to leave Nelly behind.

They said Smith chose to leave the province and his decision to relocate to Cape Town had been voluntary. They said they did not believe flying Nelly between Cape Town and Johannesbu­rg was in Nelly’s interests.

Smith disagreed and denied that he ceded possession of Nelly indefinite­ly or that he ceded equal co-ownership of Nelly. In support of his co-ownership, he indicated he researched the option of flying Nelly between Johannesbu­rg and Cape Town at his own cost and maintained payment towards her medical insurance.

Judge Shanaaz Mia said Smith did not relinquish his co-ownership of Nelly, but she was not convinced Smith would suffer irreparabl­e harm if Nelly could not fly to Cape Town.

On the bright side, the judge said there did not appear to be any reason why Smith could not visit Nelly in Joburg. She said he could travel there to maintain his rights to her.

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