The Final Judgment, November 1985
by His Honour
Mr. Justice D. M. Williamson
The following list of contents, and the corresponding
headings in the Judgment, have been added for the reader's convenience.
These are not part of the text of the Judgment.
2. Plaintiff’s claim
3. Earlier judgment by Berman
4. Defendants’ withdrawal from case
5. Courts deciding Islamic cases
6. Second Plaintiff’s uncontested case
7. Hafiz Sher Mohammad’s expert evidence for Plaintiff:
8. Cases on definition of Muslim
9. Hafiz Sher Mohammad’s rebuttal of defence case:
10. Cases on admission to mosques
11. Expert witness concludes his evidence
12. Second Plaintiff’s evidence
13. Defendants mislead and inconvenience Plaintiff
14. Orders granted to Second
IN THE SUPREME COURT OF SOUTH AFRICA
CAPE OF GOOD HOPE PROVINCIAL DIVISION
CASE NUMBER: 10058/82
In the matter between:
AHMADIYYA ANJUMAN ISHAAT ISLAM LAHORE (SA)
THE MUSLIM JUDICIAL COUNCIL & OTHERS
J: Originally two plaintiffs
sued in this action. They were, as first plaintiff
the Ahmadiyya Anjuman Ishaat Islam Lahore (SA), a voluntary association
of Muslims constituted in terms of a written constitution whose members
are commonly known and referred to as Ahmadis, and second
plaintiff one Ismail Peck. Ismail Peck is a member of the first
plaintiff association and sued in his individual capacity as well as in
his capacity as a member of such association.
The defendants are, firstly,
the Muslim Judicial Council (Cape) described as a voluntary association
of certain Sheiks, Imams and theologians; secondly,
the trustees of a mosque situated at the corner of Long and Dorp Streets,
Cape Town, to which I shall refer as the mosque and, thirdly, the trustees of the Malay portion of the Vygekraal Cemetery, Athlone,
Briefly stated the plaintiffs’ cause of action is that there are certain
fundamental doctrines and principles upon which Islam is founded; that
the plaintiffs accept these fundamental doctrines and principles and
are Muslims; that all mosques are dedicated to Allah and every Muslim,
irrespective of sect or movement, has the right of admittance to any
mosque no matter where it is situated for the purpose of prayer and
other religious functions and that the first defendant published certain
false and defamatory matter of and concerning the plaintiffs, to wit,
that all Ahmadis are non-Muslims and are apostates and disbelievers
and as such should be denied admittance to all mosques and also should
be denied the right to bury their dead in any Muslim cemetery.
As against the second defendant the plaintiffs allege that it wrongfully
refused, despite requests, to concede the right of members of the first
plaintiff and the right of second plaintiff to admittance to the mosque.
This, they said, was contrary to certain conditions contained in an
annexure to a deed of transfer passed on 11 February 1881.
As against the third defendant the plaintiffs allege that it refused
to recognise the right of members of the first plaintiff to have their
dead buried in the Malay portion of the Vygekraal Cemetery. This cemetery
is held in terms of a deed of grant dated 18 December 1908. This refusal,
so it is alleged, is contrary to the express terms of this deed of grant.
The plaintiffs, on the above-stated facts, claimed:
- Against all three defendants -- an order declaring that
members of the first plaintiff and second plaintiff are Muslims and
as such are entitled to all rights and privileges as pertain to Muslims.
- Against the first defendant -- an order interdicting it from disseminating,
publishing or otherwise propagating the defamatory matter complained
- Against the second defendant -- an order declaring that members
of the first plaintiff and the second plaintiff are entitled to admittance
to the mosque
- Against the third defendant -- an order declaring that members of
the first plaintiff and second plaintiff are entitled to the same
rights of burial in the cemetery as pertain to all Muslims.
At an earlier stage in the proceedings defendants excepted to first
plaintiff’s claim against them on the ground that first plaintiff had
no locus standi to bring such claims. The exception was upheld
and the particulars of claim, insofar as they related to the first plaintiff,
were set aside. Thereupon the action was continued by second plaintiff
Also at an earlier stage defendants gave notice of their intention
to apply at the hearing of the trial for the determination in limine,
separately from the merits of the action and in terms of Rule of Court
33(4), of certain legal issues and for the stay of all proceedings in
the action until such issues had been disposed of. One of the questions
raised was formulated thus:
". . . whether or not the Court should decline to entertain on its
merits the dispute as to whether Ahmadis are Muslims or not . . ."
Accordingly when the matter was originally set down for hearing no
evidence was led. It was confined to legal argument on the questions
raised. Judgment was delivered on 24 July 1985 by Berman J. In
his judgment the learned Judge said as follows:
"Peck seeks against all three defendants a declaratory order that
he is a Muslim and thus entitled to the rights and privileges pertaining
to Muslims. He founds his right to claim this relief upon the provisions
of section 19(1)(a)(iii) of the Supreme Court Act No 59/1959 which
empowers the Court, in its discretion, to enquire into and determine
at the instance of any interested person any existing, future or contingent
right or obligation, notwithstanding that such person cannot claim
any relief consequential upon the determination. It was Mr Mohamed’s
contention that this Court should not entertain Peck’s application
for such an order because it involves a decision as to whether or
not Ahmadis are Muslims, a decision which will involve a determination
of a number of doctrinal and religious questions which are purely
ecclesiastical in nature and it is inappropriate for a secular court
to attempt to resolve these questions, and further, that the relief
sought by Peck is of an academic nature and not bona fide.
With regard to the exercise or otherwise of the Court’s discretion
in favour of Peck Mr Mohamed invited the Court to take into account
the undesirability of a secular tribunal concerning itself with matters
of spiritual faith, to the inordinate length of a trial on this aspect
of the matter, and to the difficult and complicated nature of the
doctrinal questions involved. Indeed, he raised the question preliminary
even to that of whether or not the Court should exercise its discretion
in favour of Peck as to whether a declarator can ever be granted where
the claimant therefor can obtain consequential relief, for example,
an order directing that he be permitted to pray in the mosque.
"I am furthermore not persuaded by Mr Mohamed that this Court should
exercise its discretion against the grant of a declaratory order such
as the one sought as a preliminary matter so as to avoid embarking
on the treacherous waters of religious disputes. Our Courts have never
lacked the courage to deal with doctrinal disputes where this has
been necessary, nor have they shirked an obligation to do so when
faced therewith. Moreover, to the submission that it is undesirable
that this Court be required to decide a matter involving a determination
of a number of doctrinal and religious questions, purely ecclesiastical
in nature, the short answer is that most litigation, if not all litigation,
is undesirable. Once the matter raised by a citizen (in this instance,
Peck) is one which he is entitled to lay before this Court for decision,
and it is one which this Court is competent to deal with, and if the
issue(s) thereby raised is or are within this Court’s jurisdiction,
mere dictates of convenience or inconvenience, desirability or undesirability
cannot disentitle him to a hearing and a decision. And further, the
discretion vested in the Court in terms of section 19(1)(a)(iii) of
Act 59/1959 should not be exercised against a claimant for a declaratory
order on the ground that the issue to be decided on is a theological
rather than a secular one. Indeed it appears to me that the resolution
of the question whether Ahmadis are Muslims or not may well be more
fairly and dispassionately decided by a secular Court such as this
than by some other tribunal composed of theologians. Certainly when
regard is had to the considerable number of experts to be called and
the considerable volume of testimony to be given by them, this Court
may well be the most suitable forum to deal with them and with their
The Court accordingly answered the question in favour of the plaintiff
and the matter then proceeded to trial in the ordinary course.
When the trial in this matter commenced on 5 November 1985 Mr Desai,
on behalf of the three defendants, informed the Court that his clients
no longer wished to participate in these proceedings and that they accordingly
withdrew their defence. In doing so he explained that no disrespect
was intended towards the Court but his clients felt that as Muslims
they could not in conscience submit to the jurisdiction of this court,
which is the ordinary secular court of this country, to decide who is
a Muslim. Be that as it may, there is no doubt that where civil rights
are in issue our courts have never refused to hear the matters because
the resolution of the disputes about those rights may also involve decisions
as to doctrinal matters or other issues of a religious or theological
nature. As long ago as 1862 in the case of Long v Bishop of Cape
Town 4 Searle 162 Lord Kingsdown, in delivering the judgment
of the Privy Council, referred at page 179 to the plaintiff’s right
". . . resorting to a civil court for the restitution of civil rights
and thereby giving to such court jurisdiction to determine questions
of an ecclesiastical nature essential to their decision".
Thus in Jan & Others v Ismail & Others, 1866(5) Searle
102, we find the Court being called upon to decide upon the rights of
appointment to official positions in a mosque. It is perhaps not out
of place to note that in this case we see two contending groups of Muslims
approaching a secular court to decide matters of Muslim law and practice.
Indeed over the years there are many instances of our courts applying
Mohammedan law and Muslim usages and customs without the point being
taken that it is inappropriate for a secular court to decide matters
of this nature. (See in this regard the article in the 1907 Cape
Law Journal at page 176 entitled Mohammedan Law in South Africa
and also Hessen & Others v Daout, 6 SC 372; Behardien
v Intillah, 6 CTR 41; Du Toit & Others v Domingo, 7 CTR
134; Dobie & Others v Salie & Others, 1900(7) SC 552;
Salie v Connelly & Others, 1908 EDC 97; Omar Raffie &
Others v Behardien Jappie & Another, 1891(6) EDL 169; Jamile
& Others v African Congregational Church, 1971(3) SA 836(d)
at 840(E) and Allen & Others NNO v Gibbs & Others, 1977(3)
SA 212 SECLD).
It is abundantly clear both from the pleadings and from the evidence
that what second plaintiff as a citizen of this country is really trying
to do is, firstly, to enforce his civil rights not to be defamed; secondly,
to establish his right to attend a mosque from which he says he is wrongfully
denied entry and, thirdly, to establish his right to burial in a cemetery
established by grant of the Governor of the Cape. In order to succeed
on the above claims plaintiff has to establish that he is a Muslim and
this is where the claim for a declaration to that effect becomes relevant.
It is a claim which does not exist in vacuo, nor is it one which
is of merely academic interest. It is, in my view, an appropriate kind
of order to grant in the circumstances of this case for it is inextricably
linked with the other orders which involve the civil rights of a citizen.
Indeed it is the foundation upon which the right to those orders rests.
A court of law therefore has no option but to enquire into the issue
as to whether or not second plaintiff is a Muslim and it would be failing
in its duty to a citizen of this country were it to decline to do so.
This falls fairly and squarely within the principle enunciated by the
Privy Council in Long’s case well over a century ago, a principle
which has been consistently applied by our courts right up to the present
After explaining his clients’ attitude Mr Desai and his clients then
left the court and played no further role in the proceedings.
I turn then to a consideration of the merits of second plaintiff’s
claims which were now advanced on an unopposed basis. Because evidence
is uncontradicted it does not follow that it must be accepted by a court
of law. As pointed out by Innes CJ in Siffman v Kriel
1909 TS 538:
"It does not follow because evidence is uncontradicted that therefore
it is true. . . . The story told by the person on whom the onus
rests may be so improbable as not to discharge it".
So too in Shenker Bros. v Bester, 1952(3) SA 655 AD, Greenberg
JA at page 670(G) observed:
"Similarly, the circumstance that evidence is uncontradicted is no
justification for shutting one’s eyes to the fact, if it be a fact,
that it is too vague and contradictory to serve as proof of the question
I have not been unmindful of these considerations when assessing the
evidence placed before me.
As already indicated the principal thrust of second plaintiff’s cause
of action is that Islam is founded upon certain fundamental doctrines
and principles. Second plaintiff placed before this court the evidence
of one Hafiz Sher Mohammad, an Ahmadi theologian and missionary and
a scholar and a person learned in matters concerning the Muslim faith
and religious practices. I am satisfied that he is an expert in this
field and able to speak with authority on it. Before dealing with these
matters the witness gave a brief historical perspective of the Ahmadiyya
movement. The movement, in the main, revolves around the life of its
founder, one Mirza Ghulam Ahmad who was born about the year 1835 in
what is now Pakistan and who died in 1908. During the years 1880 to
1884 he wrote his first treatise in four volumes known as Barahin-i-Ahmadiyya.
The evidence was not only that in a revelation God had entrusted to
him a special mission but that he claimed to be the Mujaddid (reformer)
of the 14th century. The movement itself was named in 1900 after the
name of the Holy Prophet. This was necessitated by the requirement that
Muslim "sects" were required to be identified in a census which was
held in 1901. After the death of Mirza in 1908 the leadership fell to
one Nur-ud-din who led the movement until 1914. In that year certain
differences arose between two groups within the movement. This culminated
in a split within the movement. One group became known as the Lahoris
and the other group became known as the Qadianis. It is to the first
of these groups that second plaintiff belongs. After the split in March
1914 the leadership of the Lahori group passed to one Muhammad Ali who
retained it until 1951 when Sadr-ud-din assumed the leadership. In 1981
the present leader Dr Saeed Ahmad Khan assumed office. In 1974 the constitution
of Pakistan was amended and as a result the Ahmadiyyas were declared
to be non-Muslims. Finally, in April 1984, a presidential ordinance
was promulgated which stipulated certain penalties if an Ahmadi called
himself a Muslim. Whatever the position may be according to Pakistani
law the matter which falls to be determined by this Court in accordance
with South African law is whether plaintiff is entitled to the relief
he has claimed. This brings one to the evidence of Hafiz Sher Mohammad.
He dealt in the first place with what constitutes "Islam" and "Muslim"
by examining meticulously the Holy Quran, the Hadith (i.e. the sayings
of the Holy Prophet Muhammad) and the views of a number of Muslim scholars.
The crux of this aspect of his evidence was that the religion of Islam
could be summarised in the two phrases: "la ilaha ill-Allah"
(there is no God but Allah) and "Muhammad-ur rasul Allah" (Muhammad
is the messenger of Allah). By affirming these two precepts a person
enters the fellowship of Islam. This is known as the Kalima.
While the cardinal aspect of the religion of Islam is a recital of
Kalima it is quite clear that according to the teachings of the Holy
Prophet a Muslim is to be recognised by his practical behaviour. According
to the Hadith, the Holy Prophet is recorded as having said:
"Islam is that you should worship Allah alone and do not associate
anyone with Him, keep up prayer, give to charity (Zakaat), perform
the pilgrimage (Hajj) to Mekka and fast during Ramadaan."
According to the evidence placed before the Court, and in particular,
the writings of the Hadith, there is no need to investigate deeply into
the beliefs held by a person to determine whether he is a Muslim. One
need only look at some aspects of his apparent conduct. If he is seen
praying in the manner of the Muslim prayer, praying in the direction
in which Muslims pray, or if he is heard proclaiming the Kalima, for
example, then he is a Muslim.
Moreover, according to the sayings of the Holy Prophet, as recorded
in the Hadith, it does not lie in the mouth of one Muslim to condemn
another Muslim as a kafir or unbeliever. Indeed takfir
or the condemnation of a Muslim by another Muslim as a kafir
is strictly prohibited. This principle goes as far as to say that if
a person’s faith is only one percent in extent, it does not make him
a kafir, i.e.
". . . if there are ninety-nine reasons for considering someone as
kafir and only one reason against it, the mufti and
the judge is bound to act according to that one reason for negating
the kufr . . ."
The question that arises out of this evidence is whether the beliefs
held by Mirza Ghulam Ahmad and the Lahori Ahmadiyya show that they are
Muslims. This was the second aspect of the evidence given by Hafiz Sher
Mohammad. The witness quoted extensively from the writings of the founder
of the movement. Reference is made to two quotations only:
". . . The gist and the essence of our religion is: There is no God
but Allah, and Muhammad (peace be on him) is the messenger of Allah
. . ."
". . . Our religion is the same Islam. It is not new. There are the
same prayers, the same fasts, the same pilgrimage, the same Zakaat
. . ."
This evidence leaves no doubt that the basis upon which the religion
of Islam is founded is the basis of the beliefs of Mirza and of the
Lahori Ahmadiyya. Mirza stated his own convictions and those of his
"We believe that whoever takes away from or adds to the Islamic Shariah,
even to the extent of an atom, or discards what is obligatory and
permits what is forbidden, is without belief, and has deviated from
Islam. I admonish my people that they should believe in the holy Kalima
from the bottom of their hearts, namely that there is no god except
Allah and Muhammad is Allah’s Messenger, even till they die, that
they believe in all the prophets and all the revealed books whose
authenticity is established from the Holy Quran and that they accept
as obligatory fasting, prayer, poor-rate (zakaat) and pilgrimage
and all that has been prescribed as obligatory by the Exalted Allah
and His Messenger, and that they accept as forbidden all that has
been forbidden and thus follow Islam in the true sense. To sum up,
it is obligatory to believe in all those matters on which there was
consensus in belief and practice of the pious ones of the olden days
of Islam, and which are considered to be Islam by the consensus of
The witness then referred to certain Mohammedan authorities on the
subject of who are Muslims and in particular whether Ahmadis are Muslims.
I was told that the essential doctrine of the Muslim faith, the Kalima
or credo of Islam, namely that there is but one God, Allah, and that
Muhammad is his Messenger, and that this belief and a belief in prayer,
fasting, zakaat (the giving of alms) and the Hajj, or pilgrimage
(if this can be afforded) has frequently been recognised by courts in
Mohammedan countries and by learned writers on the Mohammedan law as
being the touchstone by which to identify a person as a Muslim. The
various authorities referred to clearly support this contention. I was
also referred to decisions of foreign courts which though in no way
authoritative are yet instructive in that they support the general contention
advanced by Second Plaintiff. I refer to a few of them.
Amongst the decisions reference may be made to the following: Narantakath
v Parakkal (1922) 45 Indian Law Reports Madras 986. Coram: Oldfield
& Krisshnan JJ. The headnote reads:
"The essential doctrine of the Mohammedan religion is that God is
only one and that Muhammad is his prophet; hence Ahmediyyans who also
hold that belief are only a sect of Muhammedans, notwithstanding the
fact that they differ from other Muhammedans in some other matters
of religious belief. Hence on a Muhammedan becoming an Ahmediyyan
he does not become an apostate."
Then there is the case of Maullim & Another v Marrikan (Case
No 513/1925) Supreme Court of the Straits Settlements (Singapore). I
quote from the judgment of Deane J:
"The overwhelming evidence in this case is that the fundamentals
of Mohammedanism are believed in by the Ahmediyas who are also therefore
entitled to be called Mohammedans and not Kafirs and that the points
on which they differ from the orthodox are on the traditions which
have never been considered fundamental."
A further case is Hakim Khalil Ahmad & others v Malik Israfil
and Others 1917 Vol 37 Indian Cases (Patna High Court) p 302. Coram
Sir Edward Chamier CJ and Roe J. The following passage appears:
"Members of the Ahmadiya sect of Qadian are Mohammedans; the court
below have given . . . reasons for holding that the plaintiffs are
Mohammedans, notwithstanding their pronounced dissent from orthodox
opinion in several important articles of faith."
And then finally Airyasha Koreshi v Hishmatullah Koreshi (1972)
Vol XXIV All Pakistan Legal Divisions (Karachi) p 653. Coram: Imdadally
H Agha J. The headnote reads --
"A Muslim became a Bahai and after remaining so for a number of years
reverted back to Islam by renouncing the Bahai faith and reciting
the Kalima. Held: mere recital of the Kalima was enough for
a person to become a Muslim; no other formalities or rituals were
The learned Judge is reported (at p 657) as saying:
"For becoming a Muslim all authoritative books of Islam are agreed
that if a person believes in the unity of God (Allah) and Muhammad
(may peace be upon him) to be His prophet and also says that he is
a Muslim then he becomes a Muslim and no other formalities or rituals
are to be gone through by him."
The defence having been withdrawn by the Defendants it was incumbent
upon the Second Plaintiff to prove his case as set out in the pleadings.
There was, strictly speaking, no need to meet the case as pleaded by
the Defendants. Nonetheless Second Plaintiff did not content himself
with the proof of his own case; he proceeded to meet the case as pleaded
by Defendants and in particular he met the defences raised by the Defendants
that for various stated reasons concerning their belief, Ahmadis were
not Muslims. The first such defence was that Ahmadis did not accept
and believe in what is known as the finality of the Holy Prophet and
that their founder, Mirza, had proclaimed himself to be a prophet after
the Holy Prophet. This was the third aspect of the evidence tendered
by the witness Mohammad.
This aspect was referred to as the issue of Khatam an-Nabiyyin,
i.e. the belief in the Holy Prophet Muhammad as the Last and Final Prophet.
Once again the witness quoted extensively from the writings of Mirza
in order to establish that the founder himself and the members of the
movement believed that the Holy Prophet Muhammad was the Khatam an-Nabiyyin.
I refer only to the following:
". . . I believe that the Holy Prophet, peace be upon him, is the
Khatam of the prophets . . ."
". . . I believe in the Holy Prophet, peace be upon him, being the
Khatam an-Nabiyyin . . ."
". . . I believe in God and His Messenger, and I also believe that
the Holy Prophet, peace be upon him, is the Khatam an-Nabiyyin
. . ."
The witness then proceeded to analyse the writings of Mirza in order
to establish the meaning which he attributed to the term Khatam an-Nabiyyin.
He wrote --
". . . The Holy Quran does not permit the coming of any messenger
after the Khatam an-Nabiyyin, whether an old one or a new one
. . ."
". . . Our Holy Prophet, peace be upon him, being the Khatam an-Nabiyyin
is a bar to the coming of any other prophet . . ."
Having established precisely what the founder believed concerning the
finality of the prophethood and having analysed the precise meaning
of his declared beliefs, the witness went on to examine his writings
with the view to establishing that he himself, all his life, denied
any claim to being a prophet. Referring to the writings of the founder,
the witness quoted --
". . . It is total slander by Muhammad Husain to ascribe to me that
I deny miracles and that I lay claim to Prophethood, and that I do
not consider the Holy Prophet to be the Khatam al-anbiya. God
forbid . . . no, on the contrary, God is witness that I believe all
these things . . ."
and again --
". . . I make no claim to Prophethood. This is your mistake, or you
have some motive in mind . . ."
and again --
". . . Ignorant opponents allege against me that this person claims
to be a prophet or apostle. I make no such claim . . ."
and again --
". . . In confronting the present Ulema, this humble servant has
. . . sworn many times by God that I am not a claimant to any Prophethood
. . ."
At the same time there is no doubt that Mirza Ghulam Ahmad did claim
to have received revelation from God. The witness accordingly dealt
with the whole question of revelation in Islam with particular reference
to its continuation among Muslim saints. This was the fourth main aspect
of his evidence.
Relying on the authority of the Holy Quran he was at pains to point
out that the distinctive characteristic of true religion is that it
invites the acceptance of a living God who listens to the prayers of
the distressed, removes their troubles, and speaks to His servants.
Every follower of the faith can make the verbal claim that Islam takes
man to God. However, to call people of the world towards God on the
basis of one’s personal experience and attainment, is the work of only
those who are purified by God Himself, and are perfect followers of
the Holy Prophet Muhammad. Developing the theme of revelation in Islam,
the witness indicated that with the prophethood having ended with the
Holy Prophet Muhammad, the guidance which mankind was to receive reached
its completion. He then posed the questions: is it the case that, with
the completion of the guidance, the link between the Creator and His
creatures has been forged permanently, and all men in future will attain
to God from birth? Or, will people still drift away from God and lose
the right path, even after the finality of the prophethood? Who will
take the place of prophets to establish the link between God and the
lost people when people can go astray despite the existence of perfect
He then went on to show, on the basis of Quranic authority, that, as
the Holy Prophet called people to God through the light given to him
by revelation, so will those of his followers who receive the light
of revelation establish the link between God and his creatures on the
basis of revelation. Such persons are called saints of God; and the
revelation they receive is not prophetic revelation (wahy nubuwwat)
but saintly revelation (wahy wilayat).
Thereafter, the witness dealt with the modes whereby God revealed himself.
It is unnecessary to deal with this subject in any detail other than
to make the observation that even in the modes of revelation a distinction
is drawn between revelation which is common to saints and prophets and
revelation which is exclusive to prophets. This last-mentioned mode
of revelation (wahy nubuwwat) came to an end with the Holy Prophet
Muhammad but divine communication among Muslims continues in the form
of wahy wilayat and such revelation was regarded by the Holy
Prophet as part of Prophethood.
According to the Holy Quran this type of revelation came to non-prophets,
such as Moses’ mother, Mary, the mother of Jesus and the disciples of
Jesus. It also came to the companions of the Holy Prophet, both during
his life and afterwards. In his systematic and orderly manner the witness
worked his way through the writings of numerous Muslim religious authorities,
scholars and writers. An analysis of these writings makes it quite clear
that revelation is one of the characteristics of the chosen ones of
God; and that subsequent to the Holy Prophet this revelation came to
non-prophets by way of saintly revelation.
". . . The door of prophethood is closed after the Holy Prophet Muhammad,
and shall not be opened for anyone till the Day of Judgment. However,
revelation (wahy, ilham) remains for the saints, which
does not contain the Shariah in it . . ."
The witness referred to the work of a present-day theologian, Allama
Khalid Mahmud, who is opposed to the Ahmadiyya movement, and who wrote
". . . News of the unseen, visions and revelations are also received
by some non-prophets. Saints of God are informed of news of the unseen.
. . . God Himself grants the privilege of His communication, without
the person reaching the rank of prophet . . ."
The fifth aspect of the evidence of the witness dealt with the concept
of Muhaddas who is a saint or a non-prophet who receives revelation.
He explained that the word Muhaddas admitted of two types of
meaning: literal and technical. In its literal or linguistic sense the
word Muhaddas did not convey the significance of relating news
of the unseen, but merely relating something; as to its technical meaning
in Islamic theology Mirza himself wrote --
". . . The muhaddas . . . has the honour of being spoken to by God.
Matters of the unseen are disclosed to him. His revelation, like that
of prophets and messengers, is protected from the interference of
the devil. The real essence of the Law is disclosed to him. He is
appointed just like the prophets and, like them, it is his duty to
proclaim himself openly . . ."
The witness then explained the use of the words "nabi" (Prophet)
and "rasul" (messenger). As before, the witness distinguished
between the literal or linguistic meaning of the words and the
technical meaning thereof.
The literal meaning of the word "rasul" is "to be sent",
". . . A person who is sent is called rasul in Arabic . .
The technical meaning of the word "rasul" conveys something
different. Mirza explained the meaning thus --
". . . According to the explanation of the Holy Quran, rasul
is he who receives the commands and beliefs of religion through the
angel Gabriel . . ."
As with the word "rasul" (i.e. messenger), so Mirza, like other
Muslim theologians, attributed to the word "nabi" (prophet) two
meanings, i.e. a literal and a technical meaning. The literal meaning
of "nabi" and "nubuwwat" is as follows:
". . . nubuwwat means to make prophecies . . ."
and again --
". . . He who discloses news of the unseen received from God is called
nabi in Arabic . . ."
The technical meaning conveys something different --
". . . In the terminology of Islam, nabi and rasul
mean persons who bring an entirely new law, or abrogate some aspects
of the previous law, or are not included among the followers of the
previous prophet, having a direct connection with God without benefit
from any prophet . . ."
These were the meanings attributed to the words "nabi" and "rasul"
by Mirza and these meanings accorded with the meanings given to them
by the Muslim religious elders over the centuries. All the prophets
of the past fulfil the technical meaning. Mirza, however, applied to
himself only the literal meanings, and throughout his life denied applying
to himself the technical meanings. Such literal use of these terms (nabi,
rasul) is not against Islamic law and theology. The witness referred
to various writings of Mirza to emphasise this point; for instance,
and I quote --
". . . These words (i.e. nabi and rasul) do not bear
their real meaning, but have been used according to their literal
meaning in a straightforward manner . . ."
Mirza not only distinguished between the literal and technical meaning
of the words but also drew a distinction, in terms of language, between
that which is "real" (haqiqat) and that which is metaphorical
(majaz). The witness illustrated this difference by referring
to the word "lion". In its real sense it is an animal. In its metaphorical
sense, it could mean a brave man.
Thus the terms "nabi" and "rasul" can be defined so as
to connote the real prophets and messengers of God. In other words,
used in that sense, the person is actually a prophet. If, however, "nabi"
and "rasul" are applied to a non-prophet or saint, they are used
in their metaphorical sense, i.e. a metaphorical prophet or a saint.
As before, Mirza took pains to explain the meaning which he attached
to the words, e.g. --
". . . By virtue of being appointed by God, I cannot conceal those
revelations I have received from Him in which the words nubuwwat
and risalat (prophethood) occur quite frequently. But I say
repeatedly that, in these revelations, the word . . . rasul
or nabi which has occurred about me does not carry its real
meaning . . ."
Moreover, the meanings attributed to the words were not peculiar to
Mirza. Saints in the Muslim world prior to Mirza were also given the
titles "nabi" and "rasul" in their divine revelations
in a metaphorical way, and no one took them to have become prophets.
It is quite apparent that Mirza intended no more than that he considered
himself to have fallen into the category of saints (wali) and
not into the category of prophets.
Indeed, the witness went on to analyse Mirza’s claims in the light
of the beliefs of the great religious authorities in Islamic history.
It is clear on the evidence that when the words "nabi" and "rasul"
are used in the literal sense or by way of metaphor for saints (wali)
and reformers (mujaddid) that does not make such persons prophets.
It is equally clear on the evidence that Mirza at no time claimed real
prophethood, but always used the words "nabi" and "rasul"
about himself in the metaphorical sense. He gave clear and explicit
explanations of these words and made their literal, technical, metaphorical
and real meanings quite clear. Mirza’s claims can be summarised as follows:
- He denied receiving wahy nubuwwat and affirmed receiving wahy
- He denied the use of prophet (nabi)
in its technical sense and affirmed the use of the term in its literal
- He denied that the term muhaddas
could be applied to him in its literal sense and affirmed that he
was a muhaddas in the technical sense.
- He denied being an actual or real prophet and affirmed being a metaphorical
When one examines these claims against the background of the religious
environment into which Mirza came there appears to be nothing untoward
or sinister in such claims. They are consistent with the spiritual thought
prevailing in that environment. The witness convincingly demonstrated
this by referring to a wealth of writings of the saints and scholars
of the Islamic religion.
The next aspect of the evidence of the witness related to the terminology
of Islamic mysticism as it applies to saints. He explained the meaning
of such terms as
- fana fir rasul (one who is ‘lost’
in the Holy Prophet Muhammad)
- zill (an image or reflection)
- burooz (a manifestation)
- masil anbiya (like unto prophets)
- ummati wa nabi (follower with
Mirza used these terms; he explained them and he applied them to himself.
An analysis of the use of these terms makes it clear that what Mirza
was claiming was not prophethood but rather a prophet by way of image
or manifestation i.e. a picture or reflection and not the real thing
itself. It was stated that Mirza’s heart was like a well-polished mirror
in which the image of the Holy Prophet Muhammad can be seen, or in other
words, the Holy Prophet was the original and Mirza was the zill
(reflection) or picture. According to the sufis (Muslim mystics) the
Prophet is the original and the saint (wali) is the zill
Moreover, it is manifestly apparent that Mirza firmly believed that
the Holy Prophet was the Last of the Prophets, and that after him no
prophet is to arise, whether new or old. With the finality of prophethood,
religion and religious laws reached perfection, and therefore the chain
of prophets was cut off. No prophet will now come.
At the same time, whenever people stray far from God and lose faith
in Him, in order to revive faith and to re-establish man’s relation
with God, God raises up saints and reformers. This is in accordance
with the teachings of the Holy Quran and the Hadith. These are known
by various titles, such as khalifa (deputy to the Holy Prophet),
wali (saint), mujaddid (reformer) and muhaddas
(recipient of revelation, though not a prophet). These persons are also
referred to as fana fir-rasul (effaced in the Holy Prophet),
masil anbiya (the like of prophets), zilli nabi, buroozi
nabi and ummati wa nabi (prophet by way of reflection, or
manifestation, or follower and prophet). These terms do not describe
prophets but are synonymous for saints.
Despite the lengths to which Mirza went to explain his beliefs and
the terminology which he used, he came under criticism and attack. It
was alleged that he claimed to be a prophet. This was denied by one
of Mirza’s followers. This led to him publishing in 1901 a treatise
known as "Correction of an Error". The gravamen of the publication was
to explain the terminology which he had used and to reiterate that he
was not a prophet in the real sense of the word but only a reflection
or manifestation of the real thing. He did not purport to correct any
error on his part but to correct those who were in error concerning
his claims. This publication was questioned by an opponent of Mirza;
a follower of Mirza replied; this reply is contained in the document
styled "Clarification of Correction of an Error". Yet again, the continuing
theme was repeated, and I quote --
". . . After the Holy Prophet Muhammad, the doors of prophecies have
been closed . . . But one window . . . is open. That is to say, the
window of self- effacement in the Holy Prophet (fana fir-Rasul),
or perfect successorship to the Holy Prophet which is known in other
words as burooz (manifestation)."
And again --
". . . Ignorant opponents raise the allegation against me that I
claim to be a nabi (prophet) or rasul (messenger). I
make no such claim . . ."
By way of further explanation of the terms used by Mirza and in particular
by way of dealing with the characteristics of a saint, the witness dealt
with a subject which he termed "How a Believer becomes ‘Mary’ and ‘Messiah"’.
He referred to a class of believers "pure from the beginning and protected
from attacks of the devil". Due to the high degree of goodness and purity
in them, God has compared them to Mary and given them this name in the
spiritual world. The witness referred to various Islamic writings and
showed that Muslim saints are likened to Jesus and Mary, as well as
to other prophets.
Against this background the witness stated that it was permissible
to liken non-prophets to prophets and that the Holy Prophet himself
likened those who were not prophets to prophets.
He then analysed the views of Mirza to show how a believer becomes
". . . Every believer who accomplishes himself in piety and purity,
is Mary in the sense of burooz (manifestation and spiritual
representation). And God breathes into him His spirit, which becomes
the son of Mary . . ."
Thus, when a person acquires such accomplishment in turning to God
that only the spirit remains, he then becomes the spirit of God in God’s
view, and he is named Jesus in heaven. He receives a spiritual birth
at the hand of God, which is not from any physical father: rather, it
is the shadow of the Grace of God, that grants him that birth. So in
fact the excellence of purification and of absorption in God is such
that he attains severance from bodily darkness so that only spirit remains
and he is accorded the rank of Messiah or Jesushood. Indeed Messiah
is the title which was given to Jesus, meaning ‘one who touches God’,
‘partakes of Divine favours’, ‘the vicegerent of God’, and ‘one who
adopts truth and righteousness’. When the believer becomes Jesus in
this sense he also reaches the perfect rank of Mahdi (the rightly-guided
one). Mahdi is a title which means ‘rightly-guided by instinct’, ‘heir
to all guidance’, and ‘the full reflection of the Divine attributes’.
It is in this spiritual sense that Mirza claimed to be the Messiah
". . . I am a Muslim . . . I have come from the Lord of the heavens
and the earth as a Reformer (mujaddid) of the religion, for
the fourteenth century, having the characteristics and disposition
of Jesus . . ."
And a further quotation --
". . . In a metaphorical and spiritual sense, this humble servant
is that promised Messiah, the news of whose advent is given in the
Quran and Hadith . . ."
Evidence was also led to show that the claims made by Mirza in this
regard do not infringe against Islamic law. The claim to be Mahdi and
the like of the Messiah is permitted by Islamic Shariah. What is objectionable
is to deny that the Holy Prophet was khatam an-nabiyyin and to
claim prophethood for oneself. As already indicated Mirza believed the
Holy Prophet to be khatam an-nabiyyin and the Last Prophet, and
he held that no prophet could come after the Holy Prophet, new or old.
It is apparent that many words can have several different meanings
or shades of meaning, depending on the context. Mirza in his writings
seems to have explained the sense in which he uses words which have
different meanings. Any fair criticism of a writer can surely only be
based upon the meaning which the writer himself attaches to his terms.
To attach any other meaning would only result in distortion.
One of the matters raised by Defendants in their Plea which Plaintiff
elected to meet concerned the virgin birth of Jesus. The evidence in
this regard was firstly, that over the centuries of the existence of
Islam, Muslims have differed on the issue of the birth of Jesus. Some
believe that he was born without the agency of a natural or human father,
while others hold that he did have such a father. It is clear that this
is not an issue of faith nor is it an essential to the religion of Islam.
What is part of the faith of Muslims is the acceptance of Jesus as a
prophet. Secondly, as regards Mirza, it would seem from his writings
that he personally believed that Jesus was born without the agency of
a human father. Thirdly, because the question of the birth of Jesus
is not decided conclusively in the Holy Quran but ambiguously, he gave
his followers freedom in interpreting the Quran. As a result of this
freedom, some of his followers even differed from Mirza himself on some
On the evidence placed before the court it is clear that the virgin
birth is a matter upon which Muslims differ and that such differences
of interpretation are not contrary to the teachings of Islam nor are
these essential to the faith of a Muslim.
Another difference raised by the Defendants was that the Second Plaintiff
was not a Muslim because he does not accept the Jihad or religious
war against unbelievers in Islam. Second Plaintiff elected to meet this
defence and a considerable amount of evidence was led as to the meaning
of Jihad. In a very comprehensive coverage of the subject the
witness first of all dealt with the subject linguistically i.e. from
the point of view of its root meaning. This meaning is "to strive".
Secondly he approached the subject from the point of view of the teachings
of the Holy Quran. Thirdly he looked at the subject historically by
referring to the Muslims in Mekka and at Madina. He then examined it
against the background of the Hadith and then the Bukhari (a commentary
on the sayings of the Holy Prophet). Finally he viewed the subject in
the light of the writings of Muslim religious scholars.
He indicated that jihad and "war" are not synonymous. Indeed
the Holy Quran itself distinguished between jihad and qital
(fighting or war). Undoubtedly jihad can mean fighting and physical
warfare. The witness stated this and referred to the situation of the
Muslims in Madina. The unbelievers of Mekka decided to attack Madina
to annihilate Islam and the Muslims by the sword. It was then that God
permitted the Muslims to conduct jihad with the sword, because
not to do so would have meant suicide for the Muslims. At that time
the following Quranic verse was revealed --
". . . Permission to fight is given to those upon whom war is made,
because they have been wronged --- and God is well able to help them
. . ."
According to the evidence four conditions must be present for allowing
jihad by the sword:
- fighting has to be initiated by the unbelievers;
- there must be extreme persecution of the Muslims;
- the aim of the unbelievers has to be the destruction of Islam and
the Muslims; and
- the object of the Muslims must only be self-defence and protection.
But there is another meaning to jihad: the Hadith makes it clear
that jihad means to exert oneself to the utmost, whether by means
of one’s wealth or tongue or hands or life, whether it is against one’s
desires or a visible enemy, whether its aim is to attain nearness to
God or to propagate the word of God. The Holy Quran and Hadith speak
of three kinds of jihad:
- A great jihad
- The greatest jihad and
- A lesser jihad.
The first two are undertaken constantly, while the third which includes
jihad by means of the sword, is only undertaken if the specific
conditions are satisfied. Using the term in its wider significance one
classical commentary, commenting on the Hadith, stated that the best
jihad is to speak the word of truth to a tyrant --
". . . It is the best because jihad with arguments and proofs
is a jihad which is greater as compared to jihad with the sword
which is a lesser jihad . . ."
The views of the Muslim religious scholars strongly support this wider
meaning of the term:
". . . The age of the sword is no more. Now instead of the sword
it is necessary to wield the pen . . ."
Thus the term jihad has attained a far more significant meaning
and a meaning different to that which the Defendants would seek to convey.
It is a warfare involving the pen and the tongue instead of the sword
and its objective is to capture the minds and hearts of men and not
act as a physical opponent.
". . . To change people’s views by means of the pen and tongue, and
to bring about a revolution in their minds, is also jihad.
And to spend money for this end, and to exert oneself physically,
is jihad too . . ."
". . . Jihad is derived from jahd, meaning literally
effort and striving. In the technical sense, it is used for proclaiming
the word of God, and the supremacy and success of Islam . . ."
Not only did the evidence establish that there was a much wider and
more significant meaning to the word jihad than mere physical
warfare, but it established also that it was not one of the Five Pillars
". . . One more point might be mentioned: jihad or the spiritual
‘struggle’ or ‘striving’ is not one of the Five Pillars of Islam.
In proper translation it does not mean ‘holy war’ except by extension,
but it has been debased by this meaning, which is a journalistic usage
. . ."
Concerning jihad, Mirza made his viewpoint abundantly clear.
To quote only one passage from his writings --
". . . In our age the pen has been raised against us. It is with
the pen that we have been caused pain and suffering. In response to
this, the pen is the thing which is our weapon . . ."
The witness explained why it was necessary for Mirza to write about
jihad. Many objections against Islam were advanced by Christian
missionaries. One of these objections was that Islam had spread by the
sword. Naturally Mirza had to reply to this criticism. Secondly, as
the ideas about jihad which had been spread among people by the
Maulvis (spiritual leader) were contradictory to the teachings of the
Holy Quran it was essential to explain the correct significance of the
In meeting these criticisms and correcting the false teachings, Mirza
had necessarily to deal with jihad in terms of physical warfare. He
made his standpoint quite clear. I quote from his writing --
". . . It should be known that the Holy Quran does not arbitrarily
give the command to fight. It gives the command to fight only against
those people who prevent others from believing in God, and stop them
from obeying His commandments and worshipping Him. It gives the command
to fight against those who attack the Muslims without cause, expel
them from their homes and countries, and prevent people from becoming
Muslims. These are they with whom God is wroth, and Muslims must fight
them if they do not desist . . ."
And a further quotation --
". . . But in these times the sword is not used in answer,
but the pen and the argument is used to criticise Islam. This is
the reason why, in this age, God has pleased that the work of the
sword be done by the pen, and the opponents be routed by fighting
them with writing. Hence it is not appropriate now for anyone to
answer the pen with the sword ..."
On the evidence placed before me it is clear that Mirza’s convictions
and beliefs concerning jihad fully accord with the teachings
of the Holy Quran and the Hadith and the religious tenets of Islam.
The witness then set about answering some of the allegations levelled
at the Ahmadiyya movement. The witness set his testimony against the
background of the teachings of the Quran and in particular that Muslims
are taught to listen to everyone but to accept only those aspects which
are good. Secondly, they are exhorted to try and understand the teachings
of the Quran and not just to accept them.
He then referred to the writings of Mirza and quoted from them. A few
short portions are quoted:
- ". . . Believe God to be one without partners . . ."
- ". . . do good to your fellow beings and be people of good thoughts
and character . . ."
- ". . . do not hurt with the tongue or hand and refrain from evil
and sin . . ."
- ". . . be good and true advisors to all people and do not keep company
with evildoers . . ."
- ". . . deliberate calmly, live peaceably and give no one cause for
grievance and complaint . . ."
It is quite apparent that there is much goodness in the writings and
teachings of Mirza.
The witness explained certain misconceptions about the attitude of
the Ahmadis to intermarriage, the saying of prayers with other Muslims,
and the joining of other Muslims in funeral prayers. On whatever subject
he testified the touchstone of the witness was the religion of Islam
as revealed primarily in the Quran and the Hadith. Thus it was when
he dealt with the subject of the consensus of opinion against the Ahmadis,
that he sought his authority in these sources.
He indicated that the sources of Islam were four-fold: Firstly the
Quran, secondly the Hadith, thirdly reasoning, and fourthly ijma
He went on to say that if there is a teaching in the Quran there cannot
be an ijma against it. Similarly, if there is a teaching or truth
to be found in the Quran or the Hadith, there is no scope for resorting
to the other sources i.e. reasoning or ijma. He went on to enumerate
three principles that emerge from Islamic writings --
- the opinion of the majority is not necessarily a conclusive
- the opinion of the majority is not necessarily binding upon the
- the opinion of the majority is not necessarily evidence of the truth.
He illustrated this by referring to a majority of 99 to 1, where the
1 was truthful and the 99 were untruthful. In Islam, he said, the word
of one truthful man must be accepted against the word of 99 untruthful
men, although the 1 be much in the minority.
The test, he indicated, was not the majority view of opinion, but what
is the truth. For this reason the Ahmadis do not accept ijma
or the majority view, if this is against the Quran or the Hadith.
Although the witness dealt with the subject of fatwas at some
length, it is not proposed to deal with it here in any detail. Fatwas
of kufr or "rulings of heresy" are so frequent among the various
Sunni groups and are given for such apparently superficial reasons,
that they do not warrant special consideration.
The conformists (muqallid) have issued fatwas against
the non-conformists (ghair muqallid), condemning them as kafir; and the non-conformists have issued
fatwas against the conformists condemning them in similar fashion.
The followers of all the four Imams and the followers of the four Sufi
orders have been condemned as kafirs; and so have the Deobandis. The
Deobandis, in turn, have declared the Barelvis to be kafir and the Barelvis
have retaliated in like manner.
Not only have various sects, of which there are a large number, had
fatwas directed against them, but prominent men within their
ranks have been condemned individually.
There are fatwas against prominent leaders of modern times such
as Sir Sayyid Ahmad Khan, Jinnah and Iqbal; and there are fatwas
of heresy against the early servants of Islam; such as Imam Hanifa,
Imam Shafi, Imam Hanbal and so on.
The witness then dealt with a Muslim's right to enter a mosque. As
was his wont he based his evidence upon the teachings of the Quran:
". . . And who is more unjust than he who prevents (men) from the
mosques of Allah, from His name being remembered therein and strives
to ruin them? As for these, it was not proper for them to enter them
except in fear. For them is disgrace in this world, and theirs is
a grievous chastisement in the Hereafter . . .''
He said that all who claimed to be Muslims had an inherent right to
entry into a mosque; those who recite the Kalima were Muslims
and it was they who were entitled to attend a mosque unhindered. It
was only idolaters, i.e. those who called themselves unbelievers and
therefore became kafir, who lost their right of entry into a mosque.
People had been denied entry into mosques for the slightest and most
superficial of reasons. This was contrary to the teachings of the Holy
Quran and contrary to the religion of Islam. Every Muslim is entitled
to enter a mosque and perform devotions whatever may be the sect or
school to which he belongs. Reference to certain Indian cases supports
See: Queen Empress v Ramazan & others (1885) ILR 7
Ata Ullah v Azim Ullah (1889) 12 ILR 494
Khalik Ahmad vs Israfil 1917 Indian Cases AIR (1955) Allahabad
In Ata Ullah's case (at p 504) Mahmood J is reported to have
"So long as a mosque is a mosque (that) so long as the plaintiffs
are persons who call themselves Mohammedans and entitled to worship,
there is absolutely no authority to say that any sect or any creed
or any portion of the community can restrain others who claim to have
the right which, to use the language of Mohammedan law, God and His
Prophet gave them, from putting such right into exercise''.
In the same case Edge CJ is reported as follows --
"No authority has been brought to our notice to show that a mosque
which has been dedicated to God can be appropriated exclusively to
or by any particular sect or denomination of the Sunni Mohammedans,
and without very strong authority for such a proposition, I for one
could not find as a matter of law that there could be any such exclusive
appropriation. As I understand it, a mosque to be a mosque at all
must be a building dedicated to God and not a building dedicated to
God with a reservation that it should be used only by particular persons
holding particular views of the ritual. As I understand it, a mosque
is a place where all Mohammedans are entitled to go and perform their
devotions as of right, according to their conscience.''
(This judgment was concurred in by Straight, Brodhurst and Tyrrell
JJ). See also: Mulla on the Principles of the Mohammedan Law
(Pakistan Edition 1980) at p 222, and Fyzee, Outlines of Mohammedan
Law pp 319 et seq.
Condition 2 of the Deed of Transfer of 11 February 1881 -- which is
the document in terms whereof the mosque was founded -- provides that
the mosque shall be --
"Free for the use of all persons professing the Moslem faith.''
It is clear from the deed of grant (signed in December 1908) that the
grant was made in terms of Section 6 of the Disposal of Crown Lands
Act, No. 159 (1887) (Cape) which provides for the grant of land "for
special public purposes.''
The effect of the grant was to vest the land in question in the trustees
as a public cemetery for the benefit of certain groups of persons, inter
alias, Muslims. See: In re Consistory of the Dutch Reformed Church,
Cape Town (1897) 14 S.C. 5, 9-10, and also Honore The South African
Law of Trust (2nd ed) pp 36-37.
As with the mosque, so with the cemetery, once Plaintiff establishes
that he is a Muslim he is entitled to the same rights as pertain to
all Muslims with regard to burial.
It is not open to the Trustees to refuse burial to a Muslim. Cf Noordien
v Moslem Cemetery Board 1965 (4) SA 174 (C).
Indeed, this is not Third Defendant's case; Third Defendant asserts
that it can decide whether or not Second Plaintiff is a Muslim; this
is clearly unsound; not only would it be contrary to Mohammedan usage
and customs, but also it would be contrary to the terms of the original
As far as the right of any Muslim to approach a non-Muslim Court for
a ruling concerning religious matters was concerned, the witness referred
to the sayings and to the experience of the Holy Prophet. He also referred
to a fatwa concerning the duty of Muslims to protect their mosques.
The fatwa indicated that to resort to violence in protection
of a mosque is not acceptable. Muslims should turn to the secular authorities
for a decision. He also referred to other fatwas where it was
declared that non-Muslim judges could adjudicate on Muslim matters.
The witness referred to certain instances in the life of the Holy Prophet
where he said that the angel Gabriel had revealed to him that he ought
to appoint a non-Muslim as a judge to determine a particular dispute.
Not only was a non-Muslim judge appointed, but the Holy Prophet accepted
the judge's ruling.
It was quite clear from this evidence that Muslims are expected to
accept the authority of the government of the country in which they
The witness indicated that hindrances were constantly being placed
in the way of Ahmadis despite the fact that they were Muslims. If they
separate themselves then they are criticised; if they go to mosques
they are ejected. Their right to burial is denied them. He then asked:
what must they do? All that is open to them is to approach the secular
authorities for implementation of their rights as citizens and Muslims.
He said that fatwas arouse the passions of the public and this
gives rise to a deprivation of rights. He appealed to the Court for
a restoration of such rights, whatever might be the attitude of other
The witness concluded his evidence by referring to two further matters.
The first related to the obituaries of Hazrat Mirza Ghulam Ahmad and
other tributes paid to him by prominent Muslims. This aspect of the
evidence is not dealt with in any detail other than to say that it is
quite clear that during his life, at the time of his death and thereafter,
Mirza was held in very high esteem. Reference is made to one small part
of a quote which seems to sum things up concerning the Founder of the
". . . undoubtedly the deceased was a great fighter for Islam . .
The second matter related to the tributes which have been paid to the
Lahore Ahmadiyya movement by prominent Muslims. Here too, the evidence
is not dealt with in any detail and comment is confined to one short
part of a letter written by Abul Ala Maudoodi (an opponent of the Ahmadis)
". . . However, the Ahmadi group is included in Islam . . .''
The witness concluded his evidence by saying that those who oppose
Mirza do not know him, nor have they read his works.
In my estimation the witness is a man of great learning and integrity.
He gave evidence before me for some six days and created an extremely
favourable impression. I accept his evidence without hesitation.
The Second Plaintiff, Ismail Peck, then gave evidence. It is obvious
that he is a humble and sincere person. He was born in the Cape in 1928
into a Muslim family. He was brought up in a staunch Sunni home. His
parents were practising Muslims, and he, himself, observed all the practices,
rituals and requirements of the religion of Islam. He believed the Kalima,
accepted the other four pillars of Islam and expressed no doubt concerning
the finality of Prophethood, namely that the prophethood concluded with
the Holy Prophet.
In about 1957 he became a member of the Ahmadi movement and continued
to regard himself as a Muslim. Indeed, he was always accepted as such
until about 1965 when he was denied entry to a mosque. He expressed
the desire, shared by all other Muslims, to be allowed unhindered entry
into any mosque, including the mosque on the corner of Long and Dorp
Streets in Cape Town. This desire, he said, arises simply out of the
fact that he is a Muslim.
Similarly, he would like to be buried in a Muslim cemetery on the same
basis i.e. that he is a Muslim. In particular, he would like to be buried
in the Vygekraal Cemetery because his father and brother are buried
He testified to the fact that in May 1982 the Movement applied for
a welfare organisation number to enable them to raise money for an Islamic
centre. This caused the sheiks to incite the Sunni Muslims against the
Ahmadiyya movement. The pamphlets (copies of which are annexed to the
pleadings) were printed and distributed amongst the Muslim community.
He said that he felt very disturbed and offended by this action. To
quote his words:
". . . my world came to an end . . .''
He went on to refer to certain personal incidents relating to the death
of his mother and to his relationships with other Muslims and it is
quite clear that the attitude taken by the Defendants had caused him
He went yet further and indicated that his very life had been threatened.
For these reasons he was left with no alternative but to approach the
Court. He was a manifestly truthful person and I accept his evidence.
The defamatory allegations complained of are that all Ahmadis are non-Muslims,
apostates and disbelievers; that they reject the finality of the Holy
Prophet Muhammad; that they are non-believers and as such are to be
denied the right to bury their dead in any Muslim cemetery; that all
business and social intercourse (including marriage) with Ahmadis is
prohibited; and an exhortation to all Muslims to stand up and defend
Islam against the Ahmadis (record pages 5, 6, 122, 123, 125-128); publication
is not in issue (record page 488). First Defendant, denying that the
statements are defamatory, pleads a bona fide belief in the correctness
of their statements and a right and duty to communicate same -- i.e.
a qualified privilege.
The onus of establishing the qualified privilege is on First
Defendant -- it has tendered no evidence in regard thereto.
To say of a Muslim that he is a non-Muslim and an apostate is the grossest
possible defamation; this has been testified to by the expert witness
and Second Plaintiff has himself told the Court of the hurt which has
been occasioned to him as a result thereof. cf Levy v Moltke
1934 EDL 296, 324 et seq.
Second Plaintiff is an Ahmadi, a member of a small group of only some
200 men, women and children in all in this country, and is clearly comprehended
within the defamation and entitled to seek the Court's protection in
respect thereof. See SA Associated Newspapers Ltd & Another v
Estate Pelser 1975 (4) SA 787 (AD); Knupfer v London Express
Newspaper Ltd (1944) 1 All ER 495 (HC) 497-8; Levy v Von Moltke
1934 EDL 296, 315, and also Gatley on Libel & Slander (6th
ed) p 141, Note 30.
Second Plaintiff does not seek damages; merely an injunction against
continued publication of such defamatory matter. Clearly he is entitled
to such relief. In the result Second Plaintiff has proved that he is
entitled to the various orders which he has claimed.
I turn next to consider the question of costs. Before Mr Desai and
his clients withdrew from the Court, at the commencement of these proceedings
Mr King, who together with Mr Prest appeared for the Second Plaintiff,
gave formal notice to the Defendants that an order for attorney and
client costs would be sought. It is contended that Defendants behaved
unreasonably and vexatiously in failing to communicate to the Court
and to Second Plaintiff their intention to withdraw from the proceedings.
Mr Khan, Second Plaintiff’s attorney, gave evidence as to his communication
with Defendants. I accept his evidence. I am satisfied that in the light
of the discussions between the attorneys, and the exchange of correspondence,
in all probability the decision to withdraw had been taken some time
ago, and for reasons best known to Defendants, this was kept secret
until the actual moment of its announcement in Court. The letter of
21st October 1985 (Exhibit 24) from Defendants’ attorneys is in my view
a deliberately misleading document. In the light of the long history
of the Defendants’ strenuously conducted defence no one could have guessed
what Defendants had in mind. Nor was the Court or the Second Plaintiff
informed as to when the decision to withdraw had been taken, though
the inference is clear that it probably was taken before the letter
of 21st October was written.
The result of all this is that without doubt the Second Plaintiff has
unnecessarily been put to considerable further expense in preparing
for what would clearly have been a protracted and complicated trial.
I view this conduct on the part of the Defendants with disfavour and
it is in my opinion only just that in these circumstances I should order
them to pay costs on the attorney and client scale in respect of the
I have considered whether I should award attorney and client costs
only from a certain date but have decided against that course. The Defendants
have not seen fit to explain why this decision, if it is indeed one
of conscience, was not taken and communicated long ago. Summons was
after all served more than three years ago, in October 1982. Mr Khan
also gave evidence on certain other aspects relating to costs which
satisfied me as to the reasonableness of getting experts and an interpreter
In the result I make the following order:
- As against all three Defendants, Second
Plaintiff is declared to be a Muslim and as such to be entitled to
all such rights and privileges as pertain to Muslims.
- As against First Defendant, First Defendant
is interdicted from disseminating, publishing or otherwise propagating
false, harmful, malicious and defamatory matter of and concerning
members of the Ahmadiyya Anjuman Ishaat Islam Lahore South Africa,
including Second Plaintiff, to wit, that such members are non-Muslims,
disbelievers, kafir, apostates, murtadds, that they reject the finality
of the Prophethood of Muhammad, that they are non-believers and as
such are to be denied admittance to mosques and to Muslim burial grounds,
and that marriage with an Ahmadi is prohibited by Muslim law.
- As against the Second Defendant, Second
Plaintiff is declared to be entitled to admittance to the Malay mosque
situate at the corner of Long and Dorp Streets, Cape Town, held under
Deed of Transfer dated 11th February 1881, and to all rights and privileges
therein pertaining to Muslims generally.
- As against the Third Defendant, Second
Plaintiff is declared to be entitled to the same rights of burial
in the Malay portion of the Vygekraal Cemetery, held under Deed of
Transfer No. 3, dated 18th December, 1908, as pertaining to all Muslims.
- As against all three Defendants: Costs of suit on the
attorney and client scale.