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South Africa “Ahmadi Sympathiser” case

6. Further clarification
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6. Further clarification
Secular courts do provide protection to victims of ulama’s declarations of apostasy and kufr

A particular point required further elucidation, i.e. how the courts of secular law deal with religious issues. Both in this case and the previous case in Cape Town, the courts have always worked on the principle that as regards a matter purely of theological belief (of any religion) the court cannot make a judgment as to the correctness of that belief. They avoid, so far as possible, giving a decision on matters purely of religious belief.

Therefore, if the ulama hold the belief that a certain person is not a Muslim, they are entitled to believe that, and a court cannot rule it to be a wrong belief or a right belief. It is this point which is being misrepresented by the anti-Ahmadiyya spokesmen as meaning that the ulama are entitled to determine who is or is not a Muslim, and the courts must accept their decision and cannot provide legal redress to a person they condemn as kafir.

It may be noted that the above principle applied by the courts also means that anyone declared apostate by the ulama is entitled to call himself a Muslim if that is what he believes, and the court cannot rule that his belief that he is a Muslim is right or wrong.

It is when a belief is used as the basis for injuring a party and depriving it of the rights which it has under the law of the country, that that party can seek redress from the courts and get its rights. Therefore if the ulama, acting upon their belief, call a man as kafir and this causes him to be defamed and lose his respect in the community, then he can make a claim of defamation against the ulama in the courts. The courts are then entitled to rule whether he was defamed or not.

This is exactly what happened in this case. Sheikh Jassiem was applied a certain epithet by Sheikh Nazim, President of the organisation of the ulama, in a Muslim gathering, which amounted to calling him kafir and murtadd in the eyes of that gathering. The basis for doing this was that Jassiem regarded Ahmadis as Muslims. Jassiem took Nazim to court for defaming him, and the lower trial court as well as the appeal court ruled in favour of Jassiem that he was defamed.

These judgments have ruled it as unlawful for the ulama to take those actions against Ahmadis or Muslim friends of Ahmadis (as Jassiem was), which they used to do, such as defame them in the eyes of the Muslim public by calling them various names, impose boycotts against them, stop them from building mosques, prevent their burial in Muslim cemeteries, etc.

Prof. Khurshid Ahmad is absolutely wrong in inferring that Ahmadis “cannot now show their face in any court in the world. No secular court is competent to give them protection” and that Ahmadis “who used to try to get the support of secular courts to safeguard their rights, have now been deprived of this in the light of this decisive precedent”.

Ahmadis in South Africa have exactly the same rights in law to call themselves Muslims, to follow the Islamic faith, and to perform their Muslim duties, as do the rest of the Muslims in South Africa.

To summarise, the courts in South Africa cannot rule on matters purely of belief nor compel the ulama to believe that Ahmadis are Muslims, but the courts can stop the ulama from instigating any action whatsoever against Ahmadis, verbal or physical, which deprives Ahmadis of those rights which the rest of the Muslims enjoy.