the appeal judgment and background
The Appellate Division of the Supreme Court of South Africa gave its
judgment, on September 26, 1995, upholding the ruling of the lower Trial
Court against Sheikh Nazim Mohamed, President of the Muslim Judicial
Council of Cape Town (MJC), that he had defamed one Sheikh Jassiem by
calling him an "Ahmadi sympathiser" in front of a Muslim gathering
in a mosque. The Appeal Court was giving its judgment on the appeal
by Sheikh Nazim and the MJC against the finding of the Trial Court,
of February 1990, that both Nazim and the MJC had committed defamation.
While rejecting Nazim's appeal, the Court granted the MJC's appeal,
ruling that it had not been proved that in uttering the defamatory words
Nazim had acted with the authority and approval of the MJC.
MJC's attitude to "sympathisers" of Ahmadis
/ Issue of
'Who is a Muslim' /
Questions considered on appeal
This brings to an end litigation which began ten years ago. Sheikh
Jassiem was the Sunni imam of a mosque who regarded Ahmadis as Muslims,
and refused to denounce them as kafir (unbelievers) and murtadd
(apostates), and debar them from his mosque, despite intense pressure
being put upon him by the MJC. Sheikh Nazim publicly called Jassiem
an "Ahmadi sympathiser" at a wedding congregation in a mosque
in December 1985, as a result of which Jassiem filed a defamation suit
against both Nazim and the MJC.
The words "Ahmadi sympathiser" were not in themselves defamatory,
but being uttered before the Muslim congregation they meant, to those
present, that Jassiem himself was a disbeliever and apostate "who,
as such, is to be denied admittance to mosques and Muslim burial grounds,
to whom marriage is prohibited by Muslim law, and with whom Muslims
should not associate" (p. 115 of Appeal Court Judgment). Jassiem
claimed that according to Islam he was perfectly right in considering
Ahmadis to be Muslims, and therefore it was defamatory to brand him
as unbeliever and apostate.
This led to a lengthy trial during 1987 and 1988. As noted above, the
judgment of the Trial Court, delivered in February 1990, found that
both defendants had committed defamation.
MJC's attitude to
"sympathisers" of Ahmadis
The Appeal Judgment notes that being declared an "Ahmadi sympathiser"
has "dire civil and social consequences" for that person (p.
11). As to what is an "Ahmadi sympathiser", the Judgment states:
"It should be explained that in the vocabulary of the MJC the
expressions 'approve' and 'sympathise with' are applied also to a
person who does neither, but simply fails to denounce Lahoris because
he does not know enough about them to form a judgment as to their
true faith, and is content to accept their profession of the Muslim
faith at face value." (p. 16)
Due to the MJC's stand, such a declaration against someone has "traumatic
consequences". The Judgment notes some examples:
"If an orthodox Muslim had been in the habit of employing the
services of a Lahore [Ahmadi] tailor he would have to stop doing so
and even refrain from meeting him on a social level."
Thus the intolerance of the MJC is clear from the Appeal Judgment.
The MJC condemns as "Ahmadi sympathiser" and as apostate any
Muslim whose only fault is that he does not make a statement denouncing
Ahmadis as kafir. It then orders the complete ostracism of that
Muslim by the whole Muslim community. Regarding the behaviour of the
MJC, the Judgment also records the following:
"Several times during his evidence Jassiem claimed that he had
not produced further witnesses because people were afraid to speak
on his behalf. Having regard to the MJC's boasted insistence on guilt
by association, . . . the MJC's insistence on obedience, and many
other points in the record, this claim seems to be well-founded. And
it seems to be confirmed, not rebutted, by the two witnesses that
Nazim did succeed in calling." (pages 112 - 113)
Issue of 'Who is
In the original Trial Court the question had been extensively discussed
as to whether Jassiem was a Muslim or had become an apostate by refusing
to denounce Ahmadis as kafir, and the related questions as to
whether Hazrat Mirza Ghulam Ahmad and the Lahore Ahmadis were Muslims
or not. Maulana Hafiz Sher Muhammad (may Allah have mercy on him) had
testified on behalf of Jassiem, while a Professor Ghazi from Islamabad,
Pakistan, had testified on behalf of the opposite side. The Appeal Judgment
"Their evidence, and exhibits referred to by them, constitute
by far the bulk of the appeal record which comprises 109 volumes and
is the upshot of a truly marathon trial. Their evidence related preponderantly
to the question whether Mirza had been an apostate. Sher Muhammad
maintained that he was a true Muslim, whilst Ghazi was adamant that
Mirza was indeed an apostate. . . . the trial court found it unnecessary
to determine whether Mirza had been an apostate, but seems to have
preferred Sher Muhammad's evidence to that of Ghazi, or to have considered
the former's interpretation of Mirza's writings as being as plausible
as that of Ghazi." (pages 49 - 50)
The original Trial Court, and the Appeal Court, did not consider it
necessary to Jassiem's case to decide whether Hazrat Mirza or Lahore
Ahmadis are or are not Muslims, or whether Jassiem became an apostate
by his believing that Ahmadis are Muslims. The Trial Court reduced this
to determining the question: Was Jassiem's position among Muslims such
that the esteem in which they held him would be diminished by his being
called an "Ahmadi sympathiser"? The Trial Court determined
the answer as "yes", and the Appeal Court upheld this ruling
(pages 62 - 63).
The Appeal Judgment considers five questions all of which the Trial
Court had answered in the affirmative in its earlier judgment:
- What was entailed in proof by Jassiem that he was a Muslim,
and did he prove that which had to be proved? If so,
- Did Jassiem prove that the words complained of were uttered? If
- Were the words defamatory of Jassiem despite the fact that they
lowered his esteem in the eyes only of a particular community (i.e.
Muslims), and not in the eyes of the general public?
- Did Nazim and the MJC establish their defence of qualified privilege?
(This arose because they claimed that their offensive words against
Jassiem were uttered "in the discharge of a moral or social duty
and/or the furtherance of a legitimate interest", and hence were
not defamatory.) If not,
- Did Jassiem discharge the onus of proving that the MJC was also
liable for the defamation?
On the first four questions, the Appeal Judgment upholds the ruling
of the Trial Court.
It is only on the fifth question that the Appeal Court has overturned
the ruling of the Trial Court. Jassiem had claimed against the MJC that
Nazim, in uttering the defamatory words, was acting on behalf of, and
with the authority of, the MJC. The Judgment argues that the MJC had
decided in November 1985 to conduct an investigation into Jassiem's
attitude in relation to Ahmadis, and by the date of the wedding in December
that investigation was still pending. Therefore at the time when Nazim
uttered the defamatory words, the MJC had not authorised him to do so.
Moreover, Nazim did not attend the wedding in his capacity as president
of the MJC, but in his capacity as the Imam who was to officiate there
at the invitation of the bride's father. Therefore the Appeal Court
approved the MJC's appeal against the Trial Court's judgment and ruled
that "there was no room for a finding that in acting as he did
Nazim had the authority or approval, express or implied, of the MJC"
To conclude, the Judgment on Appeal has, therefore, upheld the Trial
Court's verdict that to call Sheikh Jassiem an "Ahmadi sympathiser"
in the presence of a Muslim gathering, which means branding him in their
eyes as an apostate who must be ostracised, is defamatory because it
diminishes the esteem in which he is held by them. All those decent
and respectable Muslims everywhere who, like Sheikh Jassiem, refuse
to denounce Ahmadis as kafir, should be heartened by this judgment
from South Africa because the attempts by anti-Ahmadiyya ulama
to condemn such Muslims as themselves kafir and apostate have been ruled