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
readers convenience. These are not part of the text of the
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
Second Plaintiff’s evidence
13. Defendants mislead and inconvenience Plaintiff
14. Orders granted to Second Plaintiff
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, Cape.
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
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
- Against the first defendant -- an order interdicting
it from disseminating, publishing or otherwise propagating the
defamatory matter complained about.
- 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
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 only.
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 evidence".
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 of:
". . . 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
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 day.
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
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 in issue".
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
"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
". . . 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 followers thus:
"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 Ahl-i-Sunnat."
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
"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 necessary."
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 teachings?
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
". . . 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
". . . 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
- He denied the use of prophet (nabi) in its technical
sense and affirmed the use of the term in its literal sense.
- 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 prophet.
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
- zill (an image or reflection)
- burooz (a manifestation)
- masil anbiya (like unto prophets) and
- ummati wa nabi (follower with prophetic qualities).
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 or reflection.
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
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 points.
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 of Islam:
". . . 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 term.
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
He indicated that the sources of Islam were four-fold: Firstly
the Quran, secondly the Hadith, thirdly reasoning, and fourthly
ijma or consensus.
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
- the opinion of the majority is not necessarily a conclusive
- the opinion of the majority is not necessarily binding upon
- the opinion of the majority is not necessarily evidence of the
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
". . . 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 this viewpoint.
See: Queen Empress v Ramazan & others (1885)
ILR 7 All 462
Ata Ullah v Azim Ullah (1889) 12 ILR 494
Khalik Ahmad vs Israfil 1917 Indian Cases AIR (1955)
In Ata Ullah's case (at p 504) Mahmood J is reported to
have said --
"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
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
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 grant.
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
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
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 Muslims.
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 movement --
". . . 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 there.
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 deep hurt.
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
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 whole litigation.
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 from overseas.
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.