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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
Case No: 2025-238197
In the matter between:
DR TOLGAH BASSIER Applicant
And
THE MOSLEM CEMETERY BOARD Respondent
Coram: DA SILVA SALIE, J
Heard on: 24 March 2026
Delivered on: 24 March 2026
Summary:
Muslim community cemetery – restrictive title deed limiting use to burial – interpretation
of burial (dafn) within context of waqf (religious endowment) – role of mutawalli
(custodian) – whether construction of mortuary facility constitutes ancillary use – limits
of ancillary use and impermissible expansion beyond burial – governance of cemetery
board – failure to convene AGMs for prolonged period – validity of 2020 constitution not
decisive – breakdown of participatory governance – membership not confined
exclusively to lineal descendants – proper construction of 1948 constitution –
reconstruction and regularisation of membership through registration process – election
of representative governing body – interdict against further development – structural
relief and supervisory jurisdiction.
ORDER
1. The respondent is interdicted from completing or further developing the partially
constructed structure pending compliance with paragraphs 4 to 6 of this order and
pending any further order this Court may make upon consideration of the report
contemplated in paragraph 7 below.
2. A final interdict is granted restraining the respondent from constructing, completing,
operating or maintaining any mortuary facility on the cemetery property, such use
being inconsistent with the purpose of the property as a burial place.
3. Any interpretation or practice by the respondent that treats membership as confined
exclusively to lineal descendants, to the exclusion of other persons qualifying as set
out herein, is declared invalid and of no force and effect.
4. The respondent shall, within 30 days of this order, initiate a process to notify the
Muslim community of Cape Town and surrounding areas of the reopening and
regularisation of membership registration. Such process shall include reasonable
steps to ensure adequate public notice and shall permit persons who claim
qualification in terms of the 1948 Constitution, including by lineage or demonstrated
interest in the cemetery, to apply for inscription in the membership register.
5. A Special General Meeting shall be convened within 60 days for the election of a
governing body. Participation in such meeting shall be confined to persons duly
registered as members pursuant to the process contemplated in paragraph 4
above.
6. The newly elected governing body shall determine the future of th e structure,
provided that any use is consistent with the purpose of the cemetery as a burial
place and as defined in this judgment.
7. A report shall be filed with the Registrar of this Court c/o g[...] within 90 days by the
newly elected governing body, which report shall set out:
(a) The steps taken to comply with this order; and
(b) The outcome of the Special General Meeting; and
(c) Its determination regarding the partially constructed structure; and
(d) The matter shall be set down by the Registrar, before the presiding Judge, for
further direction by this Court within 14 days from the date of receipt of the
report. The parties may seek further relief on the same papers duly am plified
as contemplated in paragraph 34.
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8. The costs of mediation shall be borne equally by the parties and paid within 7
(seven) days of this order.
9. Each party shall bear its own costs.
JUDGMENT
DA SILVA SALIE J:
Introduction
“From the earth We created you, and into it We shall return you, and from it We
will bring you forth once more.” (Quran - Surah Ṭā Hā 20:55)
مِنْهَا خَلَقْنَاكُمْْ وَفِيهَا نُعِيدُكُمْْ وَمِنْهَا نُخْرِجُكُمْْ تَارَة ْ أُخْرَى
[1] This application concerns the use and administration of the Mowbray Moslem
Cemetery, a site of longstanding religious, historical and communal significance. At its
core lies the question whether the construction of a mortuary facility on the property is
permissible within the confines of its governing instruments, most notably the title deed
which restricts its use as a burial place.
[2] The founding instrument regulating the cemetery records a restriction in the
following terms:
“The said Cemetery has been purchased and shall be used sole ly as a
burial place for Moslems.”
[3] This restriction defines the purpose of the property and lies at the heart of the
present dispute. It is common cause that the cemetery was acquired in 1886
specifically to provide a dedicated burial ground for members of the Muslim faith.
Background and governing framework
[4] The cemetery has historically been administered as a communal religious
institution, associated with the burial of member s of the Muslim community in
accordance with Islamic rites, including the ritual washing of the deceased (ghusl) and
burial in a burial shroud known as “kafan”. The property bears the characteristics of a n
endowment (waqf), being dedicated to a defined religious purpose.
[5] The characterisation of the property as a waqf carries with it important legal
consequences. Those who administer the cemetery do so not as owners, but as
custodians or mutawallis (trustees), entrusted with preserving the property and ensuring
that it is applied strictly in accordance with the purpose for which it was dedicated. Their
powers are therefore not at large but are circumscribed by that purpose. Any deviation
from, or expansion beyond, the defined purpose of burial is inconsistent with that
custodial role. In this matter, Board”).
The issues
[6] The essential issues for determination are:
(a) whether the construction and operation of a mortuary facility fall within the
permitted use of the property as a burial place, and
(b) whether the governance structures relied upon by the respondent justify or
authorise such development.
[7] I firstly turn to the two Constitutions which form part of the subject of this dispute.
The 1948 Constitution of the Board:
[8] The 1948 Constitution regulates aspects of governance, including membership
and administration. It recognises, inter alia, that membership may arise throu gh lineage
as follows:
“3. Whereas the “Registration Book” referred to in paragraph III of the
said Annexure cannot now be traced, and is presumed lost or destroyed, it
is declared and provided that a new Registration Book which has been
compiled by the “Moslem Cemetery Board” at present functioning and
administering the property, shall form the basis of the roll of “Members”
now or hereafter interested or concerned in the said Cemetery, and entitled
to a voice and vote in its administration.
4. Any Moslem of or above the age of 14 years, being:-
(a) a survivor of those who originally subscribed or contributed towards
the cost of acquiring the property…., or
(b) a lineal descendant of any such subscriber or contributor,
shall (if his name be not already inscribed in the said Book), on payment of
a nominal fee of Two Shillings and on satisfying the Board (hereinafter
referred to) of his qualification under (a) or (b) above, be entitled to have
his name inscribed in the sai d Book, and, thereafter enjoy full rights and
privileges as a Member, and no persons other than those whose name shall
have been recorded in the said Registration Book shall have any such
rights and privileges.”
The 2020 Constitution of the Board (as amended):
[9] The respondent in turn relies on an amended Constitution adopted in 2020 as the
source of its authority. The deponent of the answering affidavit for and on behalf of the
Board, Mr. Faizal Sayed Sayed”) , submits that on 23 April 2020 the Board adopted
a new const itution which provides in express terms for the powers conferred upon the
Board which services its management committee. Mr. Sayed is the chairperson of the
management committee of the Board. The management committee has been bestowed
power and authority in terms of the amended Constitution to achieve the objectives
including to raise funds, or to invite and receive contributions. Additionally, it also has
the power to buy, hire or exchange for any property that it needs to achieve its
objectives as well as the power to raise and borrow money for the purpose of t he
organization and to invest and lend money of the organization on such terms as may be
decided by the Board from time to time. It is on this basis that Mr. Sayed contends that
the management committee has the authority to take all steps necessary for the
construction of a mortuary . He further states that the mortuary is a logistical support
measure for burial and not a change of purpose. The mortuary, he ad ds, is an
infrastructure improvement for which approval is vested in the Board.
[10] The 2020 amendment is challenged by the applicant on the basis that it was not
validly adopted in accordance with the governing provisions of the 1948 Constitution,
including the requirement of adoption at a Special General Meeting SGM”) . Clause
17 of the 1948 Constitution requires the Board to convene an Annual General Meeting
ْin October of each and every calendar year. Clause 18 requires that notice
of the AGM be published in at least two (2) newspapers at least seven (7) days before
holding such a meeting. This ensures that members receive proper n otice and can
participate in governance decisions. Clause 22 provides that any twenty (2 0) members
may requisition a SGM to consider matters of concern. The Board has failed to hold an
AGM for over fifteen (15) years. This systematic failure is not without consequence.
Consequence of the Board’s 15 years absence of AGM’s:
[11] Whilst it is argued by the applicant that the 15 -ْhas
created a governance vacuum in which the current management committee operates
without a valid mandate from the membership, the question logically follows. How after
such a long period of inaction, would such membership be considered?
[12] ْinvalidity of 2020 SGM appear to bear merit
because the 1948 Constitution contemplated a participatory structure: annual general
meetings, notice and a requisitioned SGM. A body purporting to amend the constitution
or assume governance outside those mechanisms faces an immediately le gitimacy
difficulty. If I am with the applicant, the Court cannot simply revert to a readily
ascertainable membership body under the 1 948 Constitution. The prolonged non -
observance of the Constitutional processes ْgives rise to further difficulties.
In these circumstances, the Court must avoid two extremes : it cannot ignore the
procedural defects in the 2020 process, but neither can it assume that a fully functional
and readily identifiable membership body in terms of the Constitution presently exists.
[13] In these circumstances, it is neither necessary nor appropriate to finally
determine the precise historical composition of the membership body under the 1948
Constitution. The more appropriate course is to direct a process through which lawful
and representative governance may b e restored in a manner consistent with that
Constitution and the purpose of the cemeter y, avoiding both a vacuum in co -ordinated
membership and the uncertainty that would arise if the matter were left to the
community to resolve without guidance. The appropriate remedy is therefore to direct a
practical process through which the membership may be regularised and a
representative governing body elected.
Ancillary use of the cemetery and its limits – The burial (dafn) and the mortuary:
[14] The respondent contends that the mortuary constitutes a facility ancillary or
complementary to burial and that it serves the needs of the Muslim community in
facilitating dignified burial practices. It further relies on the 2020 Constitution as
authorising the development, and asserts that the facility is limited in scope, being
described as a cold storage installation rather than a forensic or medical facility.
[15] Those contentions must be assessed against the restrictive condition in the title
deed and the purpose for which the property was established.
[16] The Board submitted that the establishment of a mortuary facility is ancillary to
the purpose of burial and therefore falls within the permissible scope of the
object ives. This is the very basis upon which the respondent seeks to
justify the development, contending that the mortuary constitutes an activity ancillary or
complementary to the burial of deceased persons.
The expansion of activities under the guise of burial (dafn):
[17] I find th is contention problematic. Whilst certain preparatory acts may be closely
extended without limit. If
accepted in the broad terms advanced, it would permit a progressive expansion of
activities under the guise of burial, potentially encompassing functions far removed from
the act of interment itself. The difficulty lies in identifying a principled boundary. On the
ْ
pathology-related processes, hospital -linked functions, or the production and supply of
burial-related materials, all on the basis that they ar e connected, in some attenuated
way, to burial.
[18] This concern is not merely abstract. The annexures to the founding papers
describe the proposed development as a refrigeration and body -storage facility, with
associated technical installations designed to preserve and prepare bodies prior to
burial. Clearly the construction and development extend beyond the act of burial itself
and into preparatory and custodial processes which requires scrutiny before being
characterised as merely ancillary.
[19] This is reinforced by a transcript of a radio interview annexed to the papers, in
which a representative of the respondent describes the development as proceeding in
ْ
reference to phased construction, and the articulation of the facility as part of a broader
developmental plan, is indicative of a structured expansion of infrastructure rather than
a limited or incidental adjunct to burial. It demonstrates that the project is conceived not
as a minor or subordinate feature, but as a facility with its own operational scope and
progression.
The Maqbarah (the cemetery) as a place of peace, tranquillity and dignity
[20] The language of the title deed, requiring that the property be used solely as a
burial place, conveys more than a mere functional limitation. It reflects a conception of
the cemetery as a dedicated and tranquil space in which the deceased are laid to rest
and returned to the soil with dignity and minimal disturbanc e. A cemetery is, by its
nature, a space that must remain safe, orderly and undisturbed, both to accommodate
the processes of burial and to preserve the dignity of those who visit the graves of their
departed. That character is difficult to reconcile with the development of phased
infrastructure involving continuous activity, which introduces a different use to that which
was originally contemplated.
[21] The concept of ancillary use must therefore be approached with caution in this
context. Where property is subject to a restrictive condition requiring that it be used
solely as a burial place, any ancillary use must be truly incidental and directly connected
to the act of burial, and incapable of independent ope ration. This would include actions
which bear a direct nexus to the act of burial such as an area or structure where the
deceased body is prepared for burial by way of the ritual bath and placement of the
kafan (shrouds).
[22] ْ
defined purpose of the property under the guise of ancillary use. Once storage is
accepted as incidental to burial, there would be no principled basis upon which to
exclude fur ther facilities said to facilitate burial in an increasingly broad or modern
sense. That would undermine the effect of the word “solely” in the restriction and erode
the fixed purpose of the endowment. In these circumstances, the proposed facility
cannot p roperly be characterised as incidental to burial but constitutes a distinct use
which falls outside the purpose for which the property was set aside.
Governance and legitimacy of the Board:
[23] The authority of the existing Board must be assessed against its governing
framework.
[24] It is common cause that no Annual General Meetings have been convened for a
prolonged period, estimated at approximately fifteen years. The absence of these
processes has resulted in the effective exclusion o f members from participation in
governance and undermines the framework through which authority is ordinarily
renewed.
[25] The Constitution further provides that members and office bearers do not acquire
any right, title or interest in the property, whic h is held in a custodial capacity for its
defined purpose.
[26] ْ
broader principles recognised in South African law governing bodies that hold and
administer property for the benefit of others, including accountability, transparency and
adherence to purpose.
[27] The respondent relies on a governing structure said to have been constituted
pursuant to amendments adopted in 2020. The evidence does not establish that the
broader Muslim community was called upon to participate in that process nor does the
signatories to th is amended Constitution indicate how the members had come to be
such of the Board.
[28] A body of persons cannot assume control of a communal institution of this nature
without recourse to mechanisms that ensure accountabili ty to the community it serves.
The absence of a properly convened and inclusive process goes to the heart of
legitimacy. There is no basis on the papers to conclude that the current board derives its
authority from a representative process. In those circum stances, it cannot be regarded
as a lawful or representative governing body.
Lineal descent
[29] Dr Bassier further argued that membership of the Board is confined to lineal
descendants of certain founding families, including the Achmat, Davids, Hendricks,
Khan and Maclick families, as reflected in the original subscriber records . That
submission does not accurately reflect the structure of the 1948 Constitution. Whilst the
1948 Constitution recognises lineage as a basis upon which membership may be
acquired, it does not create a closed or exclusively hereditary class. Membership is
instead regulated through inscription in a registration book and is extended to pe rsons
ْْْ Lineage thus
operates as a qualifying criterion within a broader membership framework, and not as a
mechanism for confining governance to a fixed group of descendants.
[30] The purpose of this restriction must be considered within the context of my views
above regarding the reconstruction of membership and that the cemetery is waqf
property for the Muslim community. The cemetery serves the Muslim community at
large, which has evolved significantly since its establishment. With the grow th of Islam
amongst both local communities and foreign residents, the constituency to which the
cemetery relates is not confined to the descendants of a limited number of founding
families. The 1948 Constitution contemplates a living and evolving membership body,
rather than a static or historically frozen class. This accords with the character of the
cemetery as waqf property dedicated to the Muslim community. To interpret
membership as co nfined exclusively to lineal descendants would not only be
inconsistent with the text but would undermine the participatory governance structure
envisaged by the Constitution and disconnect the administration from the community it
serves.
[31] The Constitution of the Republic of South Africa, 1996, guarantees equality and
freedom of association. While voluntary associations may regulate membership, such
regulation must be rationally connected to purpose. An interpretation that would exclude
the broader M uslim community from meaningful participation in the governance of the
cemetery would lack justification and cannot be sustained.
[32] In light of the above, the construction, completion or operation of a mortuary
facility on the cemetery property constitutes a use inconsistent with the restrictive
condition in the Title Deed. In the circumstances, the application has established a
clear right, an injury actually committed or reasonably apprehended, and the absence of
any alternative satisfactory remedy. It follows that such use cannot be permitted and
the interdict must be made final.
Conclusion
[33] The deficiencies in the governance of the Board, the need for an updated
Constitution as well as t he impermissible expansion of the use of the property warrant
intervention by this Court to restore lawful administration and preserve the purpose of
the cemetery.
[34] The parties are granted leave to supplement their papers, on the same papers
duly amplified, for the purpose of seeking any further or ancillary relief necessary to
implement this order, including relief directed at the assumption of control over the
respoْfinancial records, and to
ensure compliance with any other statutory, regulatory and/or tax obligations.
Costs
[35] The matter concerns a communal religious institution and raises issues
extending beyond the immediate interests of the parties. The parties cannot be said to
have acted in bad faith. When the matter was heard on 26 February 2026, both parties
agreed to eng age in mediation in an endeavour to resolve the issues in dispute. In the
premise I appointed attorney, Mr. I gshaan Higgins, as mediator in line with a directive
setting out the terms of such mediation. As per the mediation certificate filed with this
Court on 12 March 2026, the parties engaged with the mediation process as directed.
[36] However, a mediated resolution of the issues between the parties was not
achievable. The mediation process spanned over a lengthy period , with the interim
order extended ْMr
Higgins addressed the Court during this hearing that the matter could not be resolved
notwithstanding the attempts of both parties to come to a resolution . Consequently, the
parties advised that they require the adjudication of this Court in accordance with
paragraph 6 of the directive.
[37] I am satisfied that the mediation attempts by both parties were in good faith
although it did not yield a resolution. The circumstances reflect a genuine dispute of a
broader communal nature in which both parties sought to vindicate what they
considered to be the proper administration of the cemetery. In the result it is appropriate
that the parties equally share in the costs of mediation. However, given the nature of the
issues, the absence of mala fides and the fact that the litigation was directed at
clarifying the lawful use and governance of the c emetery, each party shall bear its own
costs of suit.
[38] In these circumstances, each party shall bear its own costs.
Order
[39] For the reasons set out herein, the following order is made:
[39.1] The respondent is interdicted from completing or further developing the
partially constructed structure pending compliance with paragraphs 39.4 to 39.6
of this order and pending any further order this Court may make upon
consideration of the report contemplated in paragraph 39.7 below.
[39.2] A final interdict is granted restraining the respondent from constructing,
completing, operating or maintaining any mortuary facility on the cemetery
property, such use being inconsistent with the purpose of the property as a burial
place.
[39.3] Any interpretation or practice by the respondent that treats membership as
confined exclusively to linea l descendants , to the exclusion of other persons
qualifying as set out herein, is declared invalid and of no force and effect.
[39.4] The respondent shall, within 30 days of this order , initiate a process to
notify the Muslim community of Cape Town and surrounding areas of the
reopening and regularisation of membership registration . Such process shall
include reasonable steps to ensure adequate public notice and shall permit
persons who claim qualification in terms of the 1948 Constit ution, including by
lineage or demonstrated interest in the cemetery, to apply for inscription in the
membership register.
[39.5] A Special General Meeting shall be convened within 60 days for the
election of a governing body. Participation in such meeting shall be confined to
persons duly registered as members pursuant to the process contemplated in
paragraph 39.4.
[39.6] The newly elected governing body shall determine th e future of the
structure, provided that any use is consistent with the purpose of the cemetery as
a burial place and as defined in this judgment.
[39.7] A report shall be filed with the Registrar of this Court c/o g[...] within 90
days by the newly elected governing body, which report shall set out:
(a) The steps taken to comply with this order; and
(b) The outcome of the Special General Meeting; and
(c) Its determination regarding the partially constructed structure; and
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(d) The matter shall be set down by the Registrar, before the presiding
Judge, for further direction by this Court within 14 days from the date of
receipt of the report. The parties may seek further relief on the same
papers duly amplified as contemplated in paragraph 34 above.
[39.8] The costs of mediation shall be borne equally by the parties and paid
within 7 (seven) days of this order.
[39.9] Each party shall bear its own costs.
__________________________
GAYAAT DA SILVA SALIE
JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
Appearances
For Applicant: Adv. Marius Botha
Instructed by: Louw & Coetzee Attorneys
For Respondent: Adv. D J Jacobs SC
Instructed by: Albertus Law Attorneys