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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.

1. Introduction
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:
7a.
Definition of Muslim 
7b.
Hazrat Mirza’s statements of belief

8. Cases on definition of Muslim
9. Hafiz Sher Mohammad’s rebuttal of defence case:
9a.

Hazrat Mirza’s stand on Finality of Prophethood

9b.
Revelation to Muslim saints continues
9c.
Use of word nabi for saint
9d.
Hazrat Mirza’s claims
9e.
Meaning of jihad
9f.
What is ijma?
9g.
Fatwas of Kufr

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 Plaintiff


IN THE SUPREME COURT OF SOUTH AFRICA

CAPE OF GOOD HOPE PROVINCIAL DIVISION

CASE NUMBER: 10058/82

DATE: 20.11.1985

In the matter between:

AHMADIYYA ANJUMAN ISHAAT ISLAM LAHORE (SA)

ISMAIL PECK

Plaintiffs

and

THE MUSLIM JUDICIAL COUNCIL & OTHERS

Defendants


WILLIAMSON 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.


[2. PLAINTIFF'S CLAIM]

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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:

  1. 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.
  2. Against the first defendant -- an order interdicting it from disseminating, publishing or otherwise propagating the defamatory matter complained about.
  3. Against the second defendant -- an order declaring that members of the first plaintiff and the second plaintiff are entitled to admittance to the mosque

    and

  4. 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 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 . . ."


[3. EARLIER JUDGMENT BY BERMAN]

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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.


[4. DEFENDANTS' WITHDRAWAL FROM CASE]

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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 decision".


[5. COURTS DECIDING ISLAMIC CASES]

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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.


[6. SECOND PLAINTIFF'S UNCONTESTED CASE]

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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 in issue".

I have not been unmindful of these considerations when assessing the evidence placed before me.


[7. HAFIZ SHER MOHAMMAD'S EXPERT EVIDENCE FOR PLAINTIFF]

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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.


[7a. DEFINITION OF MUSLIM]

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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 . . ."


[7b. HAZRAT MIRZA STATEMENTS OF BELIEF]

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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 . . ."

and

". . . 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."


[8. CASES ON DEFINITION OF MUSLIM]

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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 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."


[9. HAFIZ SHER MOHAMMAD'S REBUTTAL OF DEFENCE CASE]

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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.


[9a. HAZRAT MIRZA AFFIRMS FINALITY OF PROPHETHOOD]

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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 . . ."

and

". . . I believe in the Holy Prophet, peace be upon him, being the Khatam an-Nabiyyin . . ."

and

". . . 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 . . ."

and also

". . . 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 . . ."


[9b. REVELATION TO MUSLIM SAINTS CONTINUES]

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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 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 . . ."


[9c. USE OF WORD NABI FOR SAINT]

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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", i.e.

". . . 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.

[9d. HAZRAT MIRZA'S CLAIMS]

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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 wilayat.
  • 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 Muhammad)
  • 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 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 ‘Mary’:

". . . 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 and Mahdi:

". . . 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.


[9e. MEANING OF JIHAD]

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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:

  1. fighting has to be initiated by the unbelievers; 
  2. there must be extreme persecution of the Muslims;
  3. the aim of the unbelievers has to be the destruction of Islam and the Muslims; and
  4. 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:

  1. A great jihad
  2. The greatest jihad and
  3. 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 . . ."

Also --

". . . 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.


[9f. WHAT IS IJMA?]

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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 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 writings --

  1. the opinion of the majority is not necessarily a conclusive argument;
  2. the opinion of the majority is not necessarily binding upon the minority;
  3. 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.


[9g. FATWAS OF KUFR]

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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.


[10. CASES ON ADMISSION TO MOSQUE ]

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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 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) Allahabad 68.

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 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 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 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 live.

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.


[11. EXPERT WITNESS CONCLUDES HIS EVIDENCE]

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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.


[12. SECOND PLAINTIFF'S EVIDENCE]

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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 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.


[13. DEFENDANTS MISLEAD AND INCONVENIENCE PLAINTIFF]

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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.


[14. ORDERS GRANTED TO SECOND PLAINTIFF]

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In the result I make the following order:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. As against all three Defendants: Costs of suit on the attorney and client scale.

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