Ahmadiyya Anjuman Ishaati-Islamlahore (South Africa) and Another v Muslim Judicial Council (Cape) and Others

• Jurisdiction: South Africa
• Judge: Van Heerden J and Tebbutt J
• Judgment Date: 17 June 1983
• Citation: 1983 (4) SA 855 (C)
• Hearing Date: 13 June 1983
• Court: Cape Provincial Division

Tebbutt J:

In an action brought by two plaintiffs against three defendants, first plaintiff is described in the particulars of claim as "a

Tebbutt J

voluntary association of Muslims" constituted in terms of a written constitution which is annexed to the pleadings. Its members are said to be commonly known and referred to as "Ahmadis". Second plaintiff is said to be a member of first A plaintiff and joins in the action in his individual capacity as well as in his capacity as a member of first plaintiff. Defendants are, firstly, the Muslim Judicial Council, 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 B Malay portion of the Vygekraal cemetery, Athlone, Cape.

Defendants have excepted to first plaintiff's claim against them on the ground that plaintiff has no locus standi to bring such claims and, in order to understand why defendants say so, it is necessary to set out what those claims are and on what they are based. I accordingly quote from the relevant paragraphs of the particulars of claim:

"7.

C he fundamental doctrines and principles upon which Islam is founded are:

(i)

bearing witness that there is no God but Allah;

(ii)

acknowledging that the prophet Muhammed is the messenger of Allah;

(iii)

D the keeping up of prayer;

(iv)

the giving of Zakat (alms) for relief of the poor;

(v)

pilgrimage and fasting in Ramadan (the ninth month of the Muslim year).

8.

The plaintiffs accept the said fundamental doctrines and principles and are Muslims.

9.

E 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 situate, for the purposes of prayer and other religious functions and is entitled to immunity from violence, harassment or discrimination therein.

10.

F In and during May 1982 the members of the first plaintiff resolved to undertake the establishment of an Islamic cultural centre in Cape Town. To this end formal permission to collect money from the public was sought which necessitated advertising the said project.

11.

The first defendant opposed the said project and, in G pursuance of such opposition, the first defendant wrongfully and maliciously

(i)

published, disseminated and propagated, to Muslims in the Republic of South Africa generally, false and defamatory matter of and concerning the plaintiffs, to wit, that all Ahmadis are non-muslims and 'murtid' H (apostates from Islam) and are 'kafir' (disbelieving); that they reject the finality of the prophethood of Muhammed; that they are non-believers and as such are to be denied admittance to all mosques; that they 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; coupled with an exhortation to Muslims to stand up and defend Islam against the Ahmadis.

Tebbutt J

(ii)

By the said defamatory campaign inciting Muslims to hatred of, violence towards and social ostracism of the plaintiffs."

With regard to the second and third defendants, the plaintiffs allege that the second defendant wrongfully refuses, despite A requests, to concede the right of members of the first plaintiff and second plaintiff to admittance to the mosque, "thus impliedly supporting the stance of the first defendant", and that the third defendant wrongfully refuses to recognise the right of the members of the first plaintiff to have their B dead buried in the Malay portion of the Vygekraal cemetery.

Plaintiffs accordingly claim, and again I quote:

"(1)

As against all three defendants an order declaring that the members of the first plaintiff are Muslims and as such are entitled to all such rights and privileges as pertain to Muslims.

(2)

As against the first defendant: an order interdicting the first defendant from disseminating, publishing or C otherwise propagating false, harmful, malicious and defamatory matter of and concerning members of the first plaintiff, to wit: that such members are non-muslims, disbelievers ('kafir'), 'murtids' (apostates); that they reject the finality of the prophethood of Muhammed, that they are non-believers D and as such are to be denied admittance to mosques and to Muslim burial grounds and that marriage with an Ahmadi is prohibited by Muslim law."

As against second defendant they claim an order declaring that members of the first plaintiff and second plaintiff are entitled to admittance to the mosque and as against third E defendant an order declaring that the members of the first plaintiff are entitled to the same rights of burial in the cemetery as pertain to all Muslims.

Defendants' contention in their exception to first plaintiff's claim is that the latter is cited as a voluntary association of Muslims and that it is not alleged that it, as such, has F suffered the wrongs which are the foundation of its action but that such wrongs have been suffered by its members. It therefore contends that first plaintiff seeks the relief claimed not in its own name but on behalf of its members and that first plaintiff has no locus standi to do so on their behalf in that it has no interest in the proceedings or the relief sought and has no power to bring a representative action G on behalf of its members or to protect or safeguard the interests of its members in relation to the present dispute. A second basis for the exception is that first plaintiff has no locus standi to institute that part of the action that relates to defamation in that first plaintiff, as an association, is not capable of being defamed. On a proper interpretation of the particulars of claim it is bringing a representative action on behalf of its members which it is not competent or able to bring. In other words, with regard to the alleged defamatory statements, defendants say that the persons alleged to have been defamed are the members of first plaintiff. First plaintiff itself is not alleged to have been so defamed. There are, so defendants' contention goes, no allegations that first plaintiff has suffered any wrong of any nature, the allegation being that such wrongs have been suffered

Tebbutt J

by, inter alia, its members. Also the relief sought, it is argued, is not inrelation to the first plaintiff but in respect of its members. It points out that such relief is that the members of the association of Muslims are entitled to the A rights and privileges of Muslims; that an order is claimed interdicting the defamation of members of first plaintiff; that an order is sought declaring that such members are entitled to admittance to the mosque; and that the said members are entitled to burial in a Muslim cemetery.

Before dealing with these contentions it is necessary to refer B to an objection in limine taken to the exception on behalf of the first plaintiff. It is that the criticism of the first plaintiff's particulars of claim is not that such particulars lack averments necessary to sustain an action but that the first plaintiff has no locus standi to make the averments and claim the relief sought and that this is equivalent to a plea of misjoinder and as such should have been taken by special C plea in abatement and not by exception. An exception is only possible, so it was argued, when a pure question of law is involved and no evidence on the issue is admissible. As I shall point out in a moment, the first plaintiff says that a determination of the exception will depend upon a decision as to whether first plaintiff is an incorporated or an D unincorporated association, which...