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2. Distorted news in Muslim Views and reply by advocate for Sheikh Jassiem

In the November 1995 issue of Muslim Views, a newspaper of Cape Town, the Appeal Judgment was misrepresented in an article with the heading:

MJC vs Ahmadis
Court rules MJC having right to outlaw Ahmadis

See this link for an image of the article.

Upon this publication, Mr D.P. de Villiers, QC, the advocate for Sheikh Jassiem who had represented him in court, was asked for legal advice. He issued the following legal opinion.



  1. With reference to the judgment of the Appellate Division delivered in the above matter on 26th September, 1995, I have been requested to advise on aspects of an article which appeared in the Muslim Views of November 1995, at page 5, under the heading,
  2. “M.J.C. vs AHMADIS

  3. I must warn at once that in numerous aspects of its contents, and in the second line of its heading‚ the article is thoroughly misleading and wrong — as would inevitably be found to their cost by any Muslim or Muslim Authority who may seek to act on the basis of the statements in the article as if they were a correct rendering of the law or of the Appellate Division judgment in question.
  4. First of all it must be realised that in the appeal the Court was confined to issues pertaining to an action for defamation. It therefore decided only such issues as were necessary for it in order to give a judgment on that case. In the result, a large number of issues of great interest with reference to what is termed in the article “the Ahmadi-Muslim issue” were intentionally left undecided by the Appeal Court, although they had been pertinently raised and intensively discussed both at the trial in Cape Town and as part of the Appeal at Bloemfontein.
  5. A further general feature of importance is this. If it is suggested by the article that a Court of Law can under no circumstances step in to redress injustice done to a person merely because it happened at the hands of a Muslim individual or body, purporting to uphold the Muslim faith, then this very Judgment demonstrates exactly the opposite. In this case Nazim was, at the wedding in the Wynberg Mosque, the officiating Imam; and everybody knew that he was the president of the M.J.C.; throughout the altercation with Jassiem, he purported to act in accordance with the policy which had been laid down by the M.J.C.; nevertheless he was found by the Appellate Division to have committed defamation towards Jassiem, and ordered to pay R25000 in damages and 85% of Jassiem’s costs. Each and every one of a number of defences raised by Nazim and the M.J.C. to the claim for damages for defamation was rejected. Only one defence, by the M.J.C. alone, succeeded, viz. that on the facts the Appellate Division was not satisfied that Nazim had been authorised by the M.J.C. to act on its behalf in the manner in which he acted on the occasion in question. In this respect the M.J.C. scored a victory, which was important from the point of view of costs. But that was the only sense in which it was successful at all: it is completely fallacious to suggest that on any aspect of the Muslim-Ahmadi issue the M.J.C. was now in any better position than it had been before.

    As far as our Courts are concerned, the judgment of Williamson J in the Peck case of 1985 still, therefore, stands, viz. that Lahore Ahmadis are indeed Muslims, and so are so-called “sympathisers” in the Muslim community. The enormous cost and time spent by the M.J.C. in this case in trying to prove the opposite, were to no avail. Judge van den Heever in the Cape Provincial Division found that the M.J.C. and Nazim had failed to prove their proposition that Lahores and sympathisers were indeed murtad and therefore liable to be excommunicated. And the Appellate Division found it unnecessary for purposes of their Judgment to consider the question at all: at the request of the Court, it did not even hear argument on the question.

  6. To return now to the article in Muslim Views. lt refers to a judgment delivered earlier by the late Judge Berman and quotes him as stating that “a secular court is more appropriate to decide on the Ahmadi-Muslim issue”. That decision was in fact delivered in a preliminary stage of the Peck case. The M.J.C. had raised the contention that a secular court “should decline to entertain on its merits the dispute as to whether Ahmadis are Muslims or not”. Berman J found to the contrary. He based his conclusion on a firm line of decisions to the effect that where a religious dispute is such that its outcome would or could affect ordinary civil rights of a party, which are at issue in a case coming before a secular court, then it would be the function of such court to enter into aspects of the religious dispute insofar as necessary for deciding the question pertaining to civil rights. The civil rights could concern entry upon premises (e.g. a Mosque), burial in a cemetery or protection against injury like insults or defamation. In upholding this principle Judge Berman added that
    “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 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”.

    In relation to this quoted comment of Judge Berman, which was also noted by the Appellate Division, the latter court said that:

  7. “It is not necessary for the purposes of this appeal for this court to pronounce upon the acceptability or practicability of the above point of view”.

    This is not surprising, since, as already seen, the Appellate Division considered it unnecessary to consider at all “the question whether Ahmadis are Muslims or not”.

  8. However, the article tries to read more than this into the attitude of the Appellate Division. It proceeds to quote (out of context) a passage appearing in the Appellate Division Judgment some 153 pages later (in the typed version). In its proper context‚ that portion of the judgment is concerned with certain procedural prerequisites which, according to the evidence of both Professor Ghazi and Sheik Nazim, would have to be observed before anyone could be excommunicated from the Islamic religion as being an apostate. The Court found that, on either of the two versions as to the prerequisite conditions, they had not been complied with in this case, and that for that reason alone there could have been no valid excommunication at the time when Nazim spoke. It was therefore unnecessary for the Court to consider the question whether substantively there would have been been good reasons for excommunication. On the subject as a whole, however, the Court made certain further comments, as follows:

(a) With reference to the procedural prerequisites, the Court said the following at pp 153-4:

If, as was contended on behalf of the appellant, these procedures are indeed integral to Islamic faithas to which we express no opinion — it would not be for us to comment on their reasonableness or fairness”. (Underlining added).

(b) It then proceeds to quote from a decision of the House of Lords, and to make a statement of its own (the latter of which is quoted in the article) to the effect that a secular court should not take it upon itself to question “doctrines” or “fundamental and critical tenets of … faith” of religious ordinations or organisations, be it on the basis of reasonableness, soundness in comparison with scriptural sources, or the like.

(c) It was on the basis as stated in (b) that the statements in (a) were made with reference to the procedural prerequisites under discussion — but only if they were “indeed integral to Islamic faith” — which they were not found to be.

(d) It was further on the basis of (b) that the Court made the statement which is quoted in full in the article in Muslim Views, reading as follows:

“One cannot deny the right of those who are legitimately charged with the protection of the Muslim faith to seek to safeguard what they consider to be the fundamental and critical tenets of their faith, and to excommunicate someone whose convictions and beliefs are in opposition to, or not in conformity with, those principles. It would therefore be inappropriate for us to measure by conventional juridical standards the fairness or justifiability of declaring murtad a person who persists in adopting a neutral attitude towards Ahmadis, either because of his lack of knowledge as to what their beliefs are, or because he believes that the Quran enjoins that a person who is to all outward appearances a professing Muslim may not be debarred from attendance at a mosque, and that the sincerity of such a person’s professed faith is a matter between him and Allah,” (at 154-155).

(e) The following comments are apposite:

(i) The quotation commences with a reference to a “right” on the part of “those who are legitimately charged with the protection of the Muslim faith”. Though it was a disputed point in the case, there is nowhere any finding that the self-appointed M.J.C. fits the description of the quoted words.

(ii) The right to excommunicate applies only to someone whose “convictions and beliefs are in opposition to or not in conformity with” … “what they consider to be the fundamental and critical tenets of their faith”. Before excommunication of Lahore Ahmadis and/or “sympathisers” could be justified in terms of these criteria, it would have to be shown that there was indeed such a conflict between their “convictions and beliefs” and “the fundamental and critical tenets of” the Muslim faith. In the case of Lahore Ahmadis and Sympathisers the existence of such a conflict has never been satisfactorily shown, either by the M.J.C. leadership, or by the Cairo Fatwa on which they relied, or by the resolutions of the international conferences to which they have referred, or by he efforts of expert witnesses whom they have called in litigation in South Africa. Outside of the politically controlled situation in Pakistan, there has not been shown to be any consensus, to the effect that such conflict existed, among those who can be said to be “legitimately charged with the protection of the Muslim faith”. Until such consensus can be shown to exist, Courts of justice cannot be barred from requiring evidence and proof of the existence of such conflict. They certainly cannot be expected to be bound by the “stand” of the self-appointed M.J.C., which has been ruled to be wrong, or at least seriously flawed and unsubstantiated, by both South African judicial decisions which have dealt with the subject, viz. that by Williamson J in the Peck case and that by v.d. Heever J in the Cape Provincial Division in this case. As has been noted, the Appellate Division found it unnecessary to go into this aspect at all, due to other conclusive findings in favour of Jassiem, and therefore in no way overruled the conclusions of Williamson J and v.d. Heever J.

(iii) It will, consequently, be a very dangerous path to tread for the M.J.C. or any Muslim leader who has accepted their “stand”, to proceed with purportedly excommunicating Lahore Ahmadis and/or “sympathisers” and to debar them in the various ways suggested in the article, without expecting trouble from South African courts.

(iv) It is particularly noteworthy that, apart from making no finding whatsoever as to whether any Ahmadis can justifiably be regarded as apostates, the Appellate Division also explicitly abstained from arriving at a conclusion whether Jassiem’s conduct and attitude of neutrality “would have justified branding him as a ‘sympathiser’ ”; and they significantly added further: “However we may say that it is far from clear to us that it would have justified so branding him.”

(v) It will be obvious that although the Appellate Division expressed itself very cautiously and correctly, the М.J.C. methods of operation are still not favourably looked upon by South African Courts.

(vi) In conclusion it must emphatically be stated that

(a) the Appellate Division did not decide that the “M.J.C. may now outlaw Ahmadis” and has given its very firm reasons for not saying so;


(b) the Appellate Division has indicated that it would have great difficulty about agreeing that a person in the position of Jassiem could legitimately be regarded as a “sympathiser” with Ahmadis.


15th December 1995