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[2011] ZAGPJHC 85
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Society for the Protection of our Constitution v Jamiatul Ulama Transvaal and Others (13095/2011) [2011] ZAGPJHC 85 (1 June 2011)
NOT REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT OF
SOUTH AFRICA
JOHANNESBURG
CASE NO
:
13095/2011
DATE
:
01/06/2011
In the matter between:
SOCIETY FOR THE PROTECTION
OF OUR
CONSTITUTION
...................................................................
Applicant
And
JAMIATUL ULAMA
TRANSVAAL
…...........................................
1
st
Respondent
MUSLIM JUDICIAL
COUNCIL
.......................................................
2
nd
Respondent
UNITED ULAMA
COUNCIL OF SOUTH AFRICA
......................
3
rd
Respondent
JAMIATUL ULAMA OF
KWAZULU-NATAL
................................
4
th
Respondent
MINISTER OF
JUSTICE
..................................................................
5
th
Respondent
JUDGMENT
C. J. CLAASSEN
J
:
This is a very
strange application. The applicant is the Society for the Protection
of our Constitution. The first respondent
is Jamiatul Ulama
Transvaal. The second respondent is the Muslim Judicial Council. The
third respondent is the United Ulama Council
of South Africa. The
fourth respondent is the Jamiatul Ulama of Kwazulu-Natal, and the
fifth respondent is the Minister of Justice.
The relief which is sought is the
following:
“
1. Declaring that
the document described as a resolution, and annexed to applicant’s
founding Affidavit as annexure SPC4 is
a nullity and unlawful;
2.
Declaring
that the third respondent is not a lawfully constituted voluntary
association and has no legal standing;
3.
Setting
aside the documents marked resolution, and annexed to the applicant’s
founding Affidavit as SPC4; and
4.
Costs
of suit.”
The impugned
resolution
has
caused Mr Uluma for the applicant nightmares. It was a resolution
taken on 14 February 2011 in Cape Town, by the first and
second
respondents who are voluntary associations, and the resolution reads
as follows:
“
1. The
president, in consultation with the deputy presidents agree that the
JUKZN (
that
is a reference to the fourth respondent
)
will henceforth be excluded from all future deliberations regarding
UUCSA (
that
is a reference to the third respondent
)
deliberations on the MPL.
2.
JUKZN’s
exclusion from future MPL deliberations is not based on them holding
a different view but because they have breached
the relevant
resolutions as outlined in the minutes of 20 September 2010.
3.
The
house agreed to publish and distribute the “frequently asked
questions” booklet.
4.
Members
agreed on amendments to various clauses in the bill.
5.
The
UUCSA’s submission to the Minister of Justice will be ready by
the end of February 2011.
6.
UUCSA
will convene a meeting of members who subscribe to the principles of
engagement to endorse the proposed changes before making
the
submission.”
A mere cu
rsory
look at this resolution indicates that the first and second
respondents are at loggerheads with the fourth respondent for
some
reason. The third and fourth respondents are members of the first
and second respondents. Hence, if the fourth respondent
felt
aggrieved about this decision then one would have expected the
fourth respondent to approach the court for relief. Instead,
the
fourth respondent has abided the decision of this court.
The applicant is
neither a member nor an overseeing body of the first four
respondents. It was argued that the applicant has no
locus
standi
to interfere with the internal working of the first, second, third
and fourth respondents. I agree with that submission. This
resolution is an internal domestic resolution indicating that there
is some squabbling between the relevant members of the first
and
second respondents. With due respect to Mr Uluma, the applicant has
no business in intervening in their internal affairs.
Mr Uluma relied heavily on Section 38
of the Constitution, entitling anyone who alleges that his or her
rights have been breached,
to approach a court for relief. Now with
due respect that section is wholly inapplicable. The high water mark
of the applicant’s
gripe is stated in paragraph 14.2 of the
founding Affidavit where the following allegation is made:
“
Applicant
is apprehensive that unless SPC4 hereto is declared to be a nullity,
the fifth respondent (
Minister
of Justice and Constitutional Developmen
t)
may be misled into believing that the Muslim Marriages Bill has the
approval of the United Ulama Council, i.e. the third respondent…in
addition, unless SPC4 hereto is declared to be a nullity, the
national assembly might themselves be lulled into believing that
the
third respondent has endorsed and approved the enactment of the
Muslim Marriages Bill, albeit in an amended form.”
The applicant has
not alleged that any of his
rights have been violated in contravention of the protection
enshrined in the Constitution. I cannot therefore find that the
applicant has any
locus
standi
entitling him to have brought this application.
For the reasons
set out above I make an order that the application is dismissed with
costs.
THUS DONE AND
SIGNED AT JOHANNESBURG ON THIS 12
th
DAY OF JULY 2011.
_________________________
C. J. CLAASSEN
JUDGE OF THE HIGH COURT
Counsel for the Applicant: Adv T.
Dalrymple
Counsel for the Respondent: Adv J. A.
Babamia