Kemp could save Zuma but not his dog

The man who had President Jacob Zuma's corruption allegations struck from the court roll was less successful on Wednesday in his bid to keep Theodore, a St Bernard dog, from being thrown off a Durban golf estate.

The case, which made headline news in Durban's newspapers, saw Kemp J Kemp SC, attempting to persuade Judge Peter Olsen in the Durban High Court that his clients should be allowed to keep the three-year old dog, who weighs in at 75kg, at the luxury Mount Edgecombe Country Club Estate.

In his judgment handed down on Wednesday, Olsen said: "This case has gained a measure of local notoriety upon the basis that it concerns a rather striking St Bernard dog named Theodore."

The estate only allows non-aggressive breeds of dog that do not exceed 20kg.

But Pathmasolahani Abraham and her lawyer son Edward took the estate to court in 2012 when they were refused permission to keep Theodore on the estate.

Kemp argued that the estate's management association should have used its discretion, especially since there were other residents who had dogs larger than 20kg.

He had asked the court to overturn the association's decision and order that Theodore be allowed to reside on the estate.

He also argued on behalf of his clients that the decision not to allow Theodore the right of residence could have been racially motivated, as other residents who had been allowed to keep bigger dogs were white.

Olsen rejected this, as the estate had taken legal action against four other residents.

The court also heard that the Abrahamses had been resident on the estate since 2002 and had signed forms agreeing to abide by the rules, which Kemp had argued had been applied unreasonably.

However, advocate Andre Stokes argued that the Abrahamses should then have challenged whether the rules were reasonable and not whether the application of the rules surrounding dogs had been unreasonably applied.

Olsen agreed and dismissed the application, which was argued on August 1.

He ordered that they remove Theodore from the estate within the next three months. The Abrahamses were also ordered to pay all the costs of the application.

It is not clear whether they would ask Kemp, who earlier this year lost Zuma's bid to prevent the so-called spy tapes from going public, to appeal.

But whatever the outcome, it was clear that Olsen had no beef with Theodore.

"It should be stated at the outset that the case is not about the dog. It is about human conduct," he wrote in his judgment.

Kemp has represented Zuma several times, and successfully argued that the case against him and arms company Thint be struck from the roll because the prosecution was not ready to proceed.