Mohamed and Another v Jassiem

• Jurisdiction: South Africa
• Judge: Hoexter JA, Smalberger JA, M T Steyn JA, Marais JA and Schutz JA
• Judgment Date: 26 September 1995
• Citation: 1996 (1) SA 673 (A)
• Docket Number: 201/92
• Counsel: M A Albertus SC (with him I Jamie) for the appellants. D P de Villiers QC (with him B D Gassner) for the respondent.
• Court: Appellate Division

Hoexter, Smalberger, M T Steyn, Marais et Schutz JJA:

During February 1986 the respondent, Sheikh Mogamat Abbas Jassiem ('Jassiem'), initiated separate proceedings against the two appellants in the Cape Provincial Division. In one of the actions he claimed damages J from the first appellant, Sheikh Nazim Mohamed ('Nazim'), on account

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A of an alleged defamatory statement made by him of Jassiem on 20 December 1985. The words imputed to Nazim were:

'Hy [ie Jassiem] is 'n sympathiser met die Ahmadis. Hy staan saam met hulle.'

Those words were uttered, so it was alleged, in the hearing of a congregation gathered in the Yusufiya mosque, Wynberg, to attend the B marriage of one Ramzie Abrahams ('Ramzie') to Fatima Gydien ('Fatima'). (Being a Muslim bride she did not attend her wedding ceremony.)

In the other action Jassiem advanced two claims against the second appellant, the Muslim Judicial Council ('MJC'). The second of these was based on the same ground as the action against Nazim, with the rider that C the defamatory statement had been made by Nazim acting on behalf, and with the authority and approval, of the MJC. The first claim was also one for damages, founded upon the MJC's averred incitement of the trustees of the Coovatool mosque (also known as the Loop Street mosque) to dismiss Jassiem from his position as Imam of that mosque, which dismissal did in fact D ensue.

We shall deal with the pleadings and in particular with the defences raised to the defamation claims in more detail later. At this stage it suffices to say that the two actions were consolidated and heard together; that the defamation claims were upheld, resulting in the appellants being E ordered, jointly and severally, to pay Jassiem the sum of R25 000 and certain costs, and that the first claim against the MJC (incitement) was dismissed. The present appeal lies against the upholding of the defamation claims. There is no cross-appeal against the dismissal of the incitement claim.

F In order to comprehend the pleadings, the issues raised in the trial Court and on appeal, and the findings of that Court, it is necessary to go back in history. Hazrat Mirza Ghulam Ahmad ('Mirza') was born in what was then British India round about 1840 and died there in 1908. He was born a Muslim and there is no doubt that throughout his life he regarded himself, and, at least until 1891, was widely accepted by his co-religionists, as a G devout Muslim. He wrote prolifically in propagation of the Muslim faith and in particular defended it against what were, or were perceived by him to be, scurrilous attacks by some Christian missionaries on the Holy Prophet Muhammad. (We shall refer to the latter as 'the Holy Prophet'.) There were, nevertheless, some severe ecclesiastical rumblings during H Mirza's lifetime. He had founded his Ahmadiya movement in 1889 and for the next two years there was little, if any, opposition to it. In 1891 Mirza wrote that Muslims were in error in believing Jesus Christ to be alive, or in his second coming. He proceeded to claim that he was the 'promised Messiah'. This caused agitated opposition amongst a large I number of Muslims, and especially Islamic religious leaders ('Mullas'). Those Mullas condemned Mirza of apostasy, since according to orthodox Muslim belief of the time there would be a second coming of Jesus Christ from heaven. Some controversy also arose because of Mirza's repeated claims to prophethood. Here we should explain that according to Muslim belief, based on the Holy Quran, (hereinafter 'the Quran') the Holy J Prophet was the last and

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A final prophet, so that no prophet could arise after him. (Whether Mirza claimed to be a prophet - a Nabi or Rasul - in a literal, a metaphorical, or in some other sense became one of the major factual issues at the trial.)

B Despite the opposition to it the Ahmadiya movement grew and in 1906 it claimed some 300 000 members and had spread into inter alia Afghanistan, Egypt and Persia. But in 1914, six years after Mirza's death, the movement split into two. Members of the first branch became known as the Qadiani Ahmadis and those of the second, under the leadership of Muhammed Ali, as the Lahore Ahmadis. We shall refer to them respectively as the C Qadianis and the Lahores (or collectively as the Ahmadis).

Before proceeding we should mention that it will be necessary to quote from many documents, from some at length. We quote them verbatim.

Some of the main differences in the tenets of the two groups may be summarised:

(1)

D The Qadianis, unlike the Lahores, believe that Mirza was a prophet in the literal sense of the word. In common with orthodox Muslims, Lahores maintain that no prophet can come after the Holy Prophet.

(2)

Unlike the Lahores, the Qadianis believe that acceptance of Mirza as E a prophet is essential for being a Muslim, and that any one who does not accept that is a non-believer, an apostate, a kafir, murtad (all of which have more or less the same meaning). The Lahores believe that any one who professes faith in the Kalimah Shahada (roughly: 'There is only one God, Allah, and Muhammad is his messenger F (prophet)') is a Muslim.

(3)

Unlike the Qadianis, the Lahores hold that a follower of Mirza may marry an orthodox Muslim.

(4)

The Qadianis believe that it is inadmissible to say prayers behind an G Imam (roughly, a leader of prayers) who does not accept Mirza's claims, whilst the Lahores hold that they may pray behind any Muslim Imam who does not condemn other Muslims as kafirs.

It was mainly the Qadiani insistence that Mirza was a real prophet which in later years led to attacks on Mirza and his followers, and to renewed H claims by orthodox Muslims that Mirza was indeed an apostate. That was especially the case in Pakistan subsequent to the partition of the Indian subcontinent, resulting in members of both branches of Mirza's followers being declared non-Muslims by legislation in 1981. For present purposes, however, it suffices to refer to the so-called Cairo fatwa (opinion of a I mufti or jurisconsult). It was issued in 1962 by the rector of the Al-Azhar University in Cairo and declared that Qadianis 'have deviated from Islam in their beliefs, in their worship and in the rules which govern their social relations'. This declaration purported to be made on the strength of a report prepared by a research committee of senior professors of the university under the supervision of the rector. The J fatwa does not itself mention Lahores.

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A The report deals mainly with the Qadianis. It is said, inter alia, that their claim to the advent of a new prophet (Mirza) is contrary to the Quran, and that there is no doubt that Mirza and his followers are apostates because of his

'claims to prophethood, to messiahhood; that he had received revelation; that he is the second Muhammad, that if he had lived during the time of B Jesus the latter would not have been able to perform his miracles. . . .'

It is only the last page of the report that contains references to the Lahores. The compilers there recognise that there exist 'some' differences between the two branches of Mirza's followers in their conception of Mirza and his claims; in particular because the Lahores C maintain, albeit wrongly, that Mirza did not claim prophethood. Despite these differences both branches are said to qualify as non-believers.

The report concludes as follows:

'The Ahmedis Lahore claim for example that an Ahmedi can follow a non-Ahmedi in prayer, but on condition that the non-Ahmedi whom they D follow in prayer must accept Mirza Ghulam Ahmad as a Muslim. They also claim that he is the Promised Messiah.

Any person, therefore, who follows either branch, whether it be the branch of Lahore or the branch of Qadian, is rejected from the fold of Islam.'

We move to the South African scene. During the 1980s there were an estimated 260 000 orthodox (or Sunni) Muslims in the Western Cape and only E some 200 Lahores (including women and children). It would appear that the Qadianis were also few in number. In regard to religious matters the MJC claimed authority over members of the orthodox Muslim community in the Western Cape. It came into being in 1945 with Jassiem one of the founder members. Thereafter Muslims (mostly those considered to have a reasonably F intimate knowledge of the Quran) were from time to time invited to join the MJC. It is an unelected and a self-perpetuating body. In exercising its functions it has advised on and applied rules or prescriptions which in its perception are laid down in the Quran and the Sunnah (the traditions of the Holy Prophet). On occasions it has declared a person G who regarded himself as a Muslim as murtad, ie, an apostate. As will be seen, such a declaration has dire civil and social consequences.

Nazim became a member of the MJC in 1956 and later its chairman, and still later its president. The evidence led at the trial leaves no doubt but that during the relevant period (1965 to 1985) he played a powerful role H in the MJC, in particular in matters related to Islamic belief.

The first agitation in the Cape against followers of Mirza occurred round about 1960. The catalyst was Qadiani publications which claimed that Mirza had been a prophet. The MJC then took up the stand that all Mirza's followers should be excluded from mosques and treated as pariahs by I orthodox Muslims.

By 1965 Jassiem was no longer a member of the MJC. He had left that body in about 1955 when a difference of opinion regarding a ritual - which prayers were to be said on a Friday - had arisen. From 1956 to 1971 he was the Imam of the Imam Yasien mosque, having succeeded his father, who had before his death appointed Jassiem as his successor. For...