Mohamed and Another v Jassiem (201/1992) [1995] ZASCA 115; 1996 (1) SA 673 (SCA); (26 September 1995)

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[1995] ZASCA 115
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Mohamed and Another v Jassiem (201/1992) [1995] ZASCA 115; 1996 (1) SA 673 (SCA); (26 September 1995)

Case No 201/1992
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
SHEIKH NAZIM MOHAMED
First Appellant
THE MUSLIM JUDICIAL
COUNCIL
Second Appellant
and
SHEIKH MOGAMAT ABBAS JASSIEM
Respondent
COURT
: HOEXTER, SMALBERGER, STEYN,
MARAIS and SCHUTZ JJA
HEARD: 21, 22, 24, 25, 28 AND 29 AUGUST 1995
DELIVERED
: 26 SEPTEMBER 1995
JUDGMENT OF THE COURT
2
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 from the
first appellant, Sheikh Nazim Mohamed
("Nazim"), on account of an alleged
defamatory statement made by him
of Jassiem on 20 December 1985. The words
imputed to Nazim were:
"Hy [i e 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
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
3
these was based on the same ground as the action against Nazim, with the
rider that 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 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 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
4
of the defamation claims. There is no cross-appeal against the dismissal of
the incitement claim.
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 coreligionists, as a 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 Mirza's
lifetime. He had founded his
Ahmadiya
5
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
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 Prophet was the last and 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.)
6
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 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) The Qadianis, unlike the Lahores, believe that Mirza was
7
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 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
(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 Imam (roughly, a leader of prayers) who
does not accept
8
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 claims by orthodox Muslims that Mirza
was indeed an apostate. That was especially the case in Pakistan subsequent
to
the partition of the Indian sub-continent, 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 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
9
committee of senior professors of the university under the supervision
of
the rector. The fatwa does not itself mention Lahores.
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 messiahood; that he had received revelation; that
he is the second Muhammad, that if he had lived during
the time of 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
maintain, albeit wrongly, that Mirza did not claim prophethood. Despite
these differences both branches are said to qualify as non-believers.
10
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 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
some 200 Lahores (including women and children). It
would appear that the
Qadianis were also few in number. In regard to
religions 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 intimate knowledge of the
11
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 who regarded himself as a Muslim as murtad, i e, 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 in the MIC, 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
12
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
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 some years before 1965 Lahores
had been attending Jassiem's
mosque. He allowed them to do so and to say their
prayers in the mosque because, when questioned by him, one of the Lahores had
claimed
to be a Muslim and had recited the Kalimah Shahada. Jassiem acted in
this way because in his view the Quran positively enjoins that
a professing
Muslim is not to be excluded from a mosque.
13
By 1965 the MJC had received and considered the Cairo fatwa. That body
regarded the document as authoritative and decided to send
out a circular
containing its own fatwa condemning inter alia followers of Mirza as apostates.
Before this was done a deputation
of the MJC in March 1965 visited Jassiem who
was then still allowing Lahores into his mosque. There was a conflict at the
trial as
to what was discussed on that occasion. Nazim testified that the
purpose of the meeting was to inform Jassiem of the true facts concerning
Mirza
and his followers. To this end the Cairo fatwa was shown to Jassiem and he was
requested to join the MJC in its stand against
Qadianis and Lahores. Jassiem,
however, refused to commit himself.
Jassiem's evidence about the meeting raises certain difficulties to be
discussed later. He denied that there was any discussion about
Mirza and his
followers or that the Cairo fatwa was shown to him. Yet
14
he fully expected that the subject would be broached by the deputation
and was indeed surprised when it was not. He also said that only a
fatwa
dealing with the death of Jesus (Isa) was shown to him. Apparently
this
fatwa was not at all concerned with Mirza and the two branches of
his
followers.
Shortly after this occasion Jassiem forwarded a letter dated 28
March 1965
to the MJC. With reference to the visit of the deputation he
wrote:
"The spokesman [of the deputation] stated that they had come with the
unanimous approval of the Council and that I was one of them
and they being
likewise equal to me, mentioning that the doors of the Council were open for me
and that I would be welcomed with
open arms.
I take it that I am now accepted as a Muslim.
I will however be pleased if your Council will make it public in the press,
because I have been branded and named in the 'Muslim News'
and also from the
pulpits
15
by Sheikhs Sharkie and Najaar [presumably as an apostate].
It would also be appreciated if I can have confirmation that the opinions
expressed by your deputation are equally held by the last
mentioned Sheikhs.
It was requested that I reply as soon as possible, but
I regret that I cannot make a final decision until such time when the said
Sheikhs Sharkie and Najaar has made a public statement,
both in their respective
mosques and in the press, withdrawing all the malicious and defamatory
accusations made against me."
According to Nazim the MJC did not consider this letter a
proper reply to
the Council's invitation that Jassiem should join them in
their stand against
the Ahmadis. The MJC indeed construed the letter as
a refusal by Jassiem to
withdraw his support of "the Ahmedi creed", in
particular, so it would
appear, because he had allowed and continued to
allow Lahores into his
mosque. The upshot was that the MJC declared
Jassiem to be murtad on the
Islamic principle that he who approves of
16
Kufr is also Kufr (roughly, he who approves of apostasy is himself
guilty
of apostasy). It should be explained that in the vocabulary of the
MJC
the expressions "approve" and "sympathise with" are applied also to
a
person who does neither but simply fails to denounce Lahores because
he
does not know enough about them to form a judgment as to their
true
faith, and is content to accept their profession of the Muslim faith at
face
value. An announcement that Jassiem had been declared murtad was
made
early in May 1965 at a meeting held at a Cape Town mosque.
Immediately after this the MJC sent out their fatwa to Sheikhs,
Imams and
mosque committees. It is dated 8 May 1965 and reads:
"Dear Brother in Islam,
I am instructed by the Muslim Judicial Council to report to you the findings
and decision of the Council with reference to the Ahmedis,
Kadayanis, Bahais and
those persons who are sympathetic towards the beliefs of the above-named sects.
The decisions of the Council
are based entirely on the Quran and Sunnah, and all
members and committees of Majieds
17
[mosques] are earnestly requested to carry out these instructions to the
letter. These instructions and decisions should at all times
be made known to
the congregations especially to those persons who were not fortunate to have
heard the lecture which was given on
Sunday, 2nd May, 1965, in the Masjied of
Sheik Achmat Behardien.
APPENDED ARE THE DECISIONS OF THE COUNCIL
:
1.
All Ahmedis, Kadayanis,
Bahais and sympathisers,are Murtad.
2.
They
should not be allowed to enter the Masjids of the
Muslims.
3.
Their marriage ceremonies should
not be allowed to take place in the Muslim Masjids.
4.
No Sheik, Imam or Muslim should officiate at any of their marriage
ceremonies.
5.
Intermarriage between them and
a Muslim should never be allowed.
6.
They are
not allowed to serve as wakiels or witnesses in any religious
matters.
7.
They will not be allowed any
burials nor can any of them be allowed to perform burial services at any of the
Muslim
18
cemeteries.
8.
A Muslim should not pray for
or on their dead.
9.
Anything slaughtered by
them can not be eaten nor can you eat from them.
10.
There should be no association between a Muslim and any of the above
sects...."
One of the many traumatic consequences of
this declaration was
vividly illustrated in evidence given at the trial If an
orthodox Muslim
had been in the habit of employing the services of a Lahore
tailor he
would have to stop doing so and even refrain from meeting him on
a
social level. On appeal it was contended that among the clear signs
that
Jassiem was a lost soul are the facts that he employed an Ahmadi
attorney (no Muslim attorney might act for him), that in raising funds
for
the litigation he sold his house to an Ahmadi (no Muslim might buy it),
that he called an Ahmadi (Peck) as a witness, and that having been
elected to the management committee of a local authority he took his seat
19
on it despite the fact that one of the other members was an Ahmadi. These are
further instances of the rigour of the proscription
enjoined by the MJC.
However, we were told that banishment is the lot only of an Ahmadi who professes
to be a Muslim. Should he,
however, profess Ahmadism as a separate religion, he
would be shown the same tolerance as would be shown to a Jew or a Christian.
Jassiem spent the next five years in somewhat of a religious and social
wilderness. Many members of his former congregation no longer
said prayers or
attended services in his mosque, whilst generally he was shunned by orthodox
Muslims. Even his own sisters refused
to visit him. Then, in 1970, he received a
letter from the MJC. It contained an invitation to him to attend a meeting at
the Azaria
mosque with a view to his rejoining the MJC. At this meeting there
was considerable discussion about the Lahores and Jassiem's refusal
to brand
them murtad.
20
His initial reaction was that he was not there to "make" other people
apostates ("ek is nie daar om ander mense kafir ... en murtad
te maak nie").
Eventually he accompanied Nazim and Sheikh Mahdi to a separate room where a
further discussion took place. The result
was that he affirmed the contents of a
document drafted by Nazim. The gist of it was that Jassiem announced his return
to Allah and
his repentance for encouraging the Ahmadis in their beliefs, and
that he testified to their heresy. There was a dispute as to whether
on their
return to the room where the original discussions had taken place Jassiem read
out the document to the full meeting, or
whether somebody else merely announced
Jassiem's acceptance of its contents. However, nothing turns on this.
Jassiem testified that he was pressed into signifying his approval of the
document and that in his heart of hearts he still did not
believe that
21
Lahores were apostates. (This may have been the reason why he did not rejoin
the MJC.) But his endorsement of the document was received
with acclamation by
the meeting and orthodox Muslims generally. Needless to say, the Lahores
received the news with dismay and their
reaction was to stay away from Jassiem's
mosque.
We shall return later to these two encounters in 1965 and 1970.
During the
next 12 years or so the Ahmadi issue rather subsided. In 1971 Jassiem was
appointed as Imam of the Coovatool (Loop Street)
mosque by the board of
trustees, also known as the committee, of that mosque, and he continued to serve
as such until the end of
1985. Some three years earlier, however, there had
again been an anti-Ahmadi outcry. This was sparked off by an advertisement
placed
by the Lahore movement in the Cape Argus in August 1982. This
advertisement intimated that the Lahores had applied for a welfare
organisation
number
22
to enable them to collect money for the erection of an Islamic centre
and
the distribution of Islamic literature. The MJC, of which Nazim was
then
the president, went onto the attack and announced that it would
oppose
the application. In a circular issued by it the MJC reiterated its
1965
declaration "that the Ahmediah Movement (no matter what branch of
it)
are non-Muslims and Kafir", and went on to say:
"The Muslim Judicial Council hereby state categorically that whatever centre
the Ahmediahs are going to establish can never be an
Islamic centre, neither any
type of Islamic institution or Mosque because these establishments or Mosques
cannot be established by
Kafirs."
The MJC's stand led to litigation between the Lahore
congregation and one of its members, Ismail Peck, on the one hand, and
the MJC and two other defendants on the other. (For reasons not material
to this appeal Peck later became the only plaintiff.) We shall revert to
that litigation.
23
Round about 1973 Jassiem married the sister of Erefaan Rakied ("Erefaan"). In
Cape Muslim circles the latter was widely regarded as
a Lahore Ahmadi or at
least an Ahmadi sympathiser. He did not testify at the trial and one therefore
does not have first hand knowledge
of his beliefs. His son, Nurredwhan Rakied,
("Nurredwhan"), and Jassiem both testified that when they questioned Erefaan on
separate
occasions he denied that he was an Ahmadi. On the other hand, Nazim
claimed that Erefaan had admitted to him that he was indeed an
Ahmadi. Be all
that as it may, there appears to have been a reasonably close relationship
between Jassiem and Erefaan and this gave
rise to suspicion about Jassiem's
stance in regard to the Lahore sect.
In 1982 and 1983 Jassiem acted on a
part-time basis as Imam of the Parkwood mosque in Grassy Park, Cape Town. He was
still the Imam
of the Coovatool mosque, but for some undisclosed reason the
24
regular Imam of the Parkwood mosque could only lead his congregation
on
Fridays. Jassiem lived in Grassy Park. Towards the end of 1983 he
went to
Mecca. Before his departure Erefaan and his wife visited Jassiem
at his home
to bid him farewell. This visit was observed by a member
of the Parkwood
mosque committee who evidently reported it to the other
members of the
committee. The consequence was that on Jassiem's return
to Cape Town he was
asked by the Parkwood mosque committee to
attend a meeting. At that meeting
his relationship with Erefaan was
discussed. Although he assured the
committee members that Erefaan was
not an Ahmadi they refused to believe him.
In the result the secretary of
the committee wrote a letter to Jassiem. It is
dated 16 March 1984 and
the material parts thereof read as follows:
"Further to our meeting of 17/2/84 where you claimed that Erafaan Rakiep is
not an Ahmedi and that until proven otherwise, you cannot
reject him or debar
him from your home.
25
A letter was forwarded to the MJC and we were requested to attend a meeting
to discuss this matter, which we did on Friday 9 March
1984.
As you are aware Erafaan Rakiep (your brother-in-law) has been declared an
Ahmedi by the MJC and we, until proved otherwise, accept
their decision. Your
association with Erafaan (as confirmed by yourself) is placing us as custodians
of the Mosque in a very dubious
position. This in turn has caused friction and
bitterness not only among the Committee members but also amongst the Community.
In
this regard to resolve this matter in a most amicable manner, we sincerely
appeal to you for your fullest regard with the aforesaid.
...
Until this matter is cleared, we regret to notify you that your services are
suspended and that you will not be in the Movement's
employ as already stated by
our delegation on Monday 5 March. However, this does not debar you from the
Mosque but we request you
not to hold any lectures after Salaah or at any other
time. We sincerely hope that you will adhere to the above request."
After a further discussion, also attended by members of the
MJC, Jassiem arranged a visit to Erefaan. On being questioned by
26
members of the mosque committee on that occasion Erefaan denied that he was
an Ahmadi. Nevertheless the committee did not lift Jassiem's
suspension.
In February 1984 a Muslim religious dispute was referred to arbitration.
Nazim presided over the tribunal and Jassiem was to be called
as an expert
witness on behalf of one of the parties. The other side then objected that since
Jassiem was an Ahmadi sympathiser he
was not a Muslim and therefore incompetent
to testify before an Islamic tribunal. Nazim overruled the objection, holding
that Jassiem
was not such a sympathiser and that he was a Muslim.
In May 1985 Jassiem's daughter died. He conducted the burial service and
because she had lived in Lentegeur, Cape Town, he afterwards
donated the sum of
R100 to the Lentegeur mosque. Some months later he made another donation by way
of a cheque for a further
27
R100. There followed a meeting between him and a delegation of the
committee of the Lentegeur mosque at which his cheque was handed back
to
him. Then, on 29 October 1985, the secretary of the committee wrote
to
Jassiem as follows:
"On recommendation from two noted Ulama of the M.J.C. we learned the
following:
(1)
You allow noted ahmediehs
and their sympathisers in attend your congregation in Loop Str. Mosque; a fact
that cannot be disputed.
(2)
Because you are
serving on the Grassy Park management commity of which the chairman is a
ahmedieh.
(3)
that you are still intimate with
your brother-in-law Irefaan Rakiep which is without a shadow of doubt a
ahmediey.
(4)
when it was stated in court that
these people only recognise two Alims, namely Shiek. M.S. Gamieldien and your
selves, Shiek. Gamieldien
made an
affidavit
28
declaring them apostates, you on the other hand refused to draw up a similar
document.
We view with concerne the contents of this letter and will only accept your
donation if you
publicly denounce the ahmedieya for what they are
MURTAD."
(The relevance of para (4) of this letter will appear shortly.)
Either shortly before or after the date of this letter Jassiem
attended
the funeral service of a certain Mrs Albertyn. This was to be
conducted by
Sheikh Salie at the St Athens Road mosque. When Salie
saw Jassiem in the
mosque he said that the service could not continue
because of the presence of
Ahmadis and Ahmadi sympathisers. Jassiem
did not react because he considered
that that appellation did not apply to
him. Salie then mentioned Jassiem and
his brother, Abdullah (who was
also present) by name. Jassiem's reaction was
to refuse to leave the
mosque because, so he said, a mosque belongs to Allah
and not to man,
29
hence nobody had the right to expel him from a mosque. After
the
supervisor ("oorsiener") of the funeral had also vainly requested
Jassiem
to leave the mosque, the former asked Salie to proceed with the
service.
This Salie refused to do before "these" murtads had left the
mosque.
Somewhat of a physical altercation ensued after which Salie left
the
mosque. Another Imam, who was also a member of the MJC,
apparently
then took over. He was Sheikh Soeker. At some stage members of
the
congregation exhorted Soeker to throw Jassiem out of the mosque.
Soeker's reaction was:
"Breeders, stil. Daar is nog nie 'n bestelling nie teenaan die Shaik nie van
die Muslim Judicial Council nie."
It is tolerably clear that Soeker intended to convey that the MJC
had not yet branded Jassiem as an apostate.
We now revert to the litigation initiated in 1982. There is no
30
need to set out the issues in that matter in any detail. It suffices to
say
that one of the orders sought by Peck was a declaration that Lahores
were
Muslims and as such entitled to all the rights and privileges pertaining
to
Muslims. There were some initial forensic skirmishes and when
the
matter was first heard the Court (Berman J) had to consider certain
legal
issues raised in limine by the defendants. One was thus formulated.
"... whether or not the Court should decline to entertain on its merits the
dispute as to whether Ahmadis are Muslims or not."
The argument on behalf of the defendants was that it would
be
inappropriate for a secular court to attempt to resolve questions
which
were purely of a doctrinal and ecclesiastical nature. The finding
of
Berman J thereanent was:
"... it appears to me that the resolution of the question whether Ahmadis are
Muslims or not may well be more fairly and dispassionately
decided by a secular
Court such as this than by some other tribunal
31
composed of theologians. Certainly when regard is had to the considerable
number of experts to be called and the considerable volume
of testimony to be
given by them, this Court may well be the most suitable forum to deal with them
and with their evidence."
As will become apparent later in this judgment it is not necessary for the
purposes of this appeal for this Court to pronounce upon
the acceptability or
practicability of the above point of view.
Some time before the issue was
raised Jassiem was approached by the defendants' attorney and also by a
deputation of orthodox Muslims.
Jassiem was asked about these occasions during
cross-examination and his evidence in this regard is not entirely clear. It
would
appear, however, that the deputation asked him to sign some form of
document to the effect that no secular court could give judgment
on a matter
pertaining to Islamic belief. This Jassiem refused to do. During the
conversation he was also asked whether he considered
the Ahmadis to be Muslims
or
32
apostates. His reply was that in his belief they were indeed Muslims. On
another occasion he was telephonically requested by the defendants'
attorney,
Chohan, to sign an affidavit stating that he (Jassiem) considered Ahmadis as
murtad apostates and as such outside the fold
of Islam. This, too, Jassiem
refused to do. It seems clear that Jassiem was fully aware that both documents
were intended to be used
at some stage of the litigation in furtherance of the
defendants' case.
The hearing of the action commenced before Williamson J on 5 November 1985.
On the first day counsel for the defendants announced
that they were withdrawing
from the proceedings, not because they were conceding the merits of the claims
against them, but because
as Muslims they felt "that they could not in
conscience submit to the jurisdiction of this court, which is an ordinary
secular court
..., to decide who is a Muslim".
33
Evidence was then led for some days. Hafiz Sher Muhammad ("Sher Muhammad"),
who testified also in the present matter, gave evidence
to the effect that on a
proper interpretation of the writings of Mirza he was not an apostate, and that
therefore the Lahores are
not murtad. (An hafiz is one who knows the whole of
the Quran by heart.)
On 20 November 1985 Williamson J gave judgment. He held
that Peck, the acknowledged Lahore Ahmadi, had discharged the onus of proving
that he was a Muslim (and hence not an apostate) and inter alia
declared him
to be such. Accordingly he accepted Berman J's view and, rightly or wrongly,
proceeded to decide a question of religious
doctrine or dogma.
The outcome
was received with dismay, indeed consternation, by the MJC and orthodox Muslims
generally. Nazim, on behalf of the MJC,
publicly declared that Muslims had no
option but to ignore the
34
rulings of Williamson J on the basis that no kafir could make another kafir a
Muslim, or, put differently, that a Muslim was precluded
by virtue of his
religious beliefs from accepting a determination by a non-Muslim court as to who
is a Muslim. He also said that
every member of the MJC was prepared to go to
jail for the Islamic cause by not giving heed to the judgment. Furthermore,
mosque
committees were instructed not to allow Ahmadis into mosques.
A few days earlier the MJC's administrator, Sheikh Gabier, had reported to a
meeting of the MJC that he had received numerous complaints
about Ahmadis and
their sympathisers attending the Coovatool mosque. According to the minutes:
"The meeting also discussed the fact that no notices of
the masjid's decisions are ever read at the Juna-ah of this masjid. The
Council was completely in the dark with regard to the stand
and attitude of the
Iman viz. Sheikh M.A. Jassiem.
35
The Administrator was thereupon instructed to write a letter to the Mosque
Board of the Masjid to set up a meeting so that this issue
could be
discussed."
Pursuant to what was decided at this meeting Sheikh Gabier
wrote a letter
to the Coovatool mosque committee. It is dated 26
November 1985 and
reads:
"We wish to draw your attention to the fact that the Council have received
numerous complaints regarding:
(a)
the attendance of known
Ahmadis and known Ahmadi sympathisers at your Mosque;
(b)
the attitude of the Imam of the Mosque, Sheikh Abbas Jassiem towards
the Ahmadis, Qadianis and Bahai movement and its leaders, its
followers as well
as their sympathisers. This must be clarified in order to create an atmosphere
of trust and harmony between Imam
and Mureeds of the Loop Street
Mosque.
I wish to draw your attention that we had
many problems with the said Sheikh. Our Main desire is that this matter must be
resolved
positively in no uncertain terms.
36
In view of the urgency of this very serious matter we hereby cordially invite
your board to a special meeting with the Fatwa Board
of the Muslim Judicial
Council on Thursday the 28 November 1985 at 8.30 pm at the chambers of the
Muslim Judicial Council."
The reply is dated 5 December 1985 and states inter alia:
"Your letter and allegations made in it was discussed at the Trust Meeting of
the abovementioned Mosque. The Trust feels that your
letter states that you have
received complaints. It should, however be noted that you did not attach any
Affidavits or any letters
of complaints.
The said Sheik M. Abbas Jassiem has served the Mosque and the community for
the last 13 years with dignity and sincerity. As far as
we can ascertain, the
greatest of trust and harmony prevails between the Imam and his Mureeds.
The said Sheik, being a learned man should be approached by the Muslim
Judical Council directly and the Council should not ask us
as layman to
intervene with the learned Sheik on a religious issue.
37
As layman we are in a dilemma, since the M.J.C withdrew from the Supreme
Court case against the Ahmadis in such a shocking and appalling
manner and
allowed the Ahmadis to win the case by default which means that anybody
interfering now with the Ahmadis may be committing
contempt of court.
This truly was the blackest day in the history of the
Cape Muslims and has
left many a serious question
unanswered as to the ability of the M.J.C to
intervene,
defend or propogate Islam in a responsible and
sincere
manner "
This was how matters stood some 14 days before the wedding
ceremony of Ramzie was to take place in the Wynberg mosque. That
ceremony was to be led by Nazim who was a co-Imam of the mosque.
Six
witnesses testified at the trial of the present matter as to what
occurred at
the mosque (and some of them also in regard to certain events
leading up to
that occasion). They were Jassiem, Rashied Abrahams
(Ramzie's father), and
Jassiem's brother, Imam Abdullah, on the one side,
and Nazim, Ramzie, and his
father-in-law, Ahmad Gydien on the other.
38
As adumbrated above, the kernel of Jassiem's version was that on the occasion
in question Nazim said that he (Jassiem) was an Ahmadi
sympathiser. His version
of the events in the mosque was in the main corroborated by Abdullah and
Abrahams, but denied by Nazim.
According to the latter his only reference to the
Ahmadi issue occurred when he asked Jassiem: "Jy moet vir ons sê wat is
jou
staan met die Ahmadi movement" (You must tell us where you stand with regard
to the Ahmadi movement). We shall refer later to the
limited corroboration of
Nazim's version to be found in the evidence of Ramzie and Gydien.
At this
stage it is convenient to say something about the six witnesses and the trial
Court's assessment of them and their evidence.
Abrahams was not a learned man
and in the view of the Court a quo his vocabulary in Afrikaans - the language in
which he testified
-was neither large nor sophisticated. He was a Sunni
(orthodox) Muslim.
39
The trial Court (VAN DEN HEEVER J) thought that his evidence was not
satisfactory in all respects, that he was somewhat confused as
to the precise
sequence of events inside the Wynberg mosque, but did not consider him a
dishonest witness.
Abdullah, who was some ten years younger than Jassiem, had
passed standard 6 in this country. He was, however, somewhat lacking in
religious education. He had been taught the Muslim religion by his father and
brother, Jassiem, and never attended a religious institution.
By December 1985
he had been assistant Imam at the Coovatool mosque for approximately 14 years.
He had little, if any, knowledge
of the Ahmadi movement. The trial Court doubted
whether he had the intelligence to concoct and abide by an untrue version of
events
merely to support his brother's version. Although his account of the
events inside the Wynberg mosque did not match that of his brother
in every
respect, the impression
40
gained by the trial Court was that it gave different facets of the same story
and that under cross-examination his version remained
unshaken. Jassiem attended
school in South Africa only up to standard 2. He stemmed from a family of Sunni
Muslim religious leaders;
his father, grandfather and great-grandfather, as well
as his maternal grandfather, all having been Imams. When he was nine years
old,
in 1924, he was taken on a pilgrimage to Mecca and thereafter attended the Al
Azhar institute in Cairo for the purpose of studying
the Islamic religion.
However, he failed to "graduate" and returned to Cape Town in 1938, having been
away from home for some 14
years. During his academically undistinguished career
at Al Azhar he gained distinction in another field, being selected to box for
Egypt at the Berlin Olympics of 1936. But when it was discovered that he was not
an Egyptian his selection was cancelled. During
his long subsequent career as an
Imam at Cape Town
41
he was the religious teacher of many later imams, including Nazim, who was
some 17 years his junior. In the assessment of the trial
Court the paucity of
his secular education was reflected in his language of choice: colloquial
Afrikaans with a sprinkling of - not
always grammatically correct - English
words. He had the habit, so the Court also found, of going off on his own tack
without listening
to the questions put to him. The impression gained by the
Court, however, was that this was not due to evasiveness but rather to
"the
egotism of age and accustomed authority, allied to the fact that he is neither
quickwitted" nor linguistically well equipped.
Despite "his habit of running
about at a tangent, not listening to questions and often rambling without
completing sentences", the
trial Court did not regard him as a dishonest
witness. He was 72 years of age at the time of the trial.
Little need be said of Ramzie at this stage. He was a very poor
42
witness. He had practically nothing to contribute on the vital occurrences in
the Wynberg mosque on 20 December 1985. Concerning preceding
events, to which we
shall revert, the trial Court found him to be a dishonest witness.
Gydien was the father of Fatima who married Ramzie on 20 December 1985. He
passed standard 7 at school in this country and at the
time of the trial held a
responsible position in a firm of clothing manufacturers. He described himself
as "just an ordinary Muslim"
and knew very little of the merits or demerits of
the Ahmadi movement. As the bride's father he appointed Nazim to perform the
wedding
ceremony. He corroborated Nazim in a number of respects as to what
happened at the Wynberg mosque. He said that he did not hear Nazim
referring to
Jassiem as an Ahmadi sympathiser, but did not unequivocally deny that Nazim
might have done so.
43
The trial Court found that Gydien's version of what sparked off trouble at
the Wynberg mosque on the occasion in question was so improbable
that it had to
be rejected.
Nazim was 55 years of age at the time of the trial. He went to
school in South Africa until he was in standard 7. He was then, at
the age of
17, sent to Mecca for religious studies and returned to Cape Town towards the
end of 1955. He was appointed Imam at the
Park Road mosque in 1957 and later, in
1972, became Imam at the Yusufiya mosque, and still later, for reasons not
material, co-Imam
at that mosque. As stated, between 1966 and 1982 he was from
time to time the chairman of the MIC, and was elected president of that
body in
1982.
In the assessment of the trial Court Nazim was clearly accustomed to
authority in his community and to speaking, in rather grandiose
terms, weightily
and smoothly, though his language was neither
44
precise nor that of a truly educated person. He was evasive, so it was found,
about many matters and in some respects his version
about what occurred at the
wedding ceremony was incoherent and inconsequential. We shall, at a later stage,
deal more fully with
all the relevant events in the Wynberg mosque, and with
certain incidents leading up to the wedding ceremony. At this stage no more
need
be said than that the Court a quo had no doubt that Nazim and Gydien lied about
those events, and that the version of Jassiem
and his witnesses was to be
preferred. The flaws in the apposite evidence presented on behalf of Jassiem
were, so it was found, mainly
due to age, quality of intellect and memory, and
differences of observation of confused events, whilst those in the defendants'
evidence
were mainly due to deliberate deviation from the truth. Hence it was
found that Jassiem discharged the onus of establishing that
the alleged
defamatory words were indeed published in
45
the Wynberg mosque on 20 December 1985.
By way of epilogue to the Ahmadi saga, prior to its culmination
in this
country in the present proceedings, reference should be made to
Jassiem's
dismissal as Imam of the Coovatool mosque. Presumably at
least partially due
to what had occurred at the Wynberg mosque, the
secretary of the board of
trustees of the Coovatool mosque eight days
later wrote a letter to Jassiem. It was dated 28 December 1985 and
contained the following:
"As you are aware by now that a lot of controversy is prevailing in the
Ahmadia's issue and more specifically the unnecessary rumours
and claims that
you are a sympathiser of that sect. As this is creating tremendous anamosity
between the Trustees of the above mosque
whereby several other organisations and
Muslim institutions are applying pressure on clearing the issue, we hereby have
to bring
this serious matter to your urgent attention.
In order to clear the matter and allow the mosque to function and you to
continue with the tremendous
46
amount of good spiritual and religious work you have been doing for the past
fourteen years it is necessary for you to submit in writing
your denounciation
of the Ahmadias.
Upon receipt of such a letter we hereby give you our solemn undertaking that
the matter as far as the Board of Trustees of the above
mosque is concerned will
be closed permanently and you will enjoy the full support of the Board in the
future."
Attached to this letter was a draft reply to be signed by Jassiem.
The material part read:
"As Imaam of the above mosque, a duty which I have capably accomplished for
the past fourteen years Insha-Allah, it grieves me to
experience the amount of
injustice that is being leveled at me and the unfair and dishonourable conduct
of certain members of the
Muslim Judicial Council and the totally unlslamic
methods that are being used to persecute me and undermined my position as Imaam
of the above mosque.
As most of you are personally aware, I am not of the Ahmadias sect and I
denounce them as Muslims out of the folds of Islam and that
they are Murtaad
Kufir."
47
The letter and draft reply were handed to Jassiem on 31 December 1985 by the
board's secretary, Mr Vinoos. Jassiem refused to sign
the draft reply,
maintaining that it was not for him "om mense murtad te maak nie". He did,
however, on 3 January respond to the
board's ultimatum by way of a letter. He
wrote that he was not, and never had been, an Ahmadi. But he did not denounce
Ahrnadis as
murtad, and by clear implication again refused to do so. In the
result the board dismissed Jassiem from his position as Imam of the
Coovatool
mosque. His claim against the MJC for having wrongfully incited the mosque
committee to dismiss him failed at the first
hurdle, namely proof that the
committee acted as a result of MJC pressure. As previously stated there was
no-cross appeal against
this finding.
We now turn to the further issues which were raised in, or arose from, the
pleadings in the consolidated action. We shall refer to
the
48
pleadings under the appropriate headings. At this stage no more than a brief
summary of those issues is required. Apart from the question
whether Nazim did
utter the words attributed to him by Jassiem (and at the trial also by his
witnesses), to which reference has already
been made, they are as follows.
It was common cause at the trial that to say of a Muslim in the Western Cape
that he is an Ahmadi or Ahmadi sympathiser, is highly
insulting. In his
pleadings Jassiem alleged that he was a Muslim but this was denied by Nazim and
the MJC. As matters developed at
the trial, four questions arose in regard to
the issue whether Jassiem had proved that he was a Muslim. The first was whether
evidence
that he professed to be a Muslim; had for many years (save for the
period 1965 to 1970) been generally regarded as a Muslim in Cape
Islamic
circles; and had indeed over a considerable period served as Imam of various
mosques,
49
sufficed. If not, the second question was whether he had proved the
qualifications which are necessary to belong in the fold of Islam.
As a natural
corollary to the second question the third question was (or was said to be)
whether Mirza was, and his Lahore followers
were and are, apostates. The final
question arising out of Jassiem's claim to be a Muslim was this: is a professed
Muslim who refuses
to brand Lahores as apostates, himself an apostate?
Two
foreign expert witnesses on Islamic religion gave evidence on those issues.
Jassiem called Sher Muhammad (already mentioned) and
the defendants Professor
Ghazi (who is also an hafiz). Their evidence, and exhibits referred to by them,
constitute by far the bulk
of the appeal record which comprises 109 volumes and
is the upshot of a truly marathon trial. Their evidence related preponderantly
to the question whether Mirza had been an apostate. Sher Muhammad maintained
that
50
he was a true Muslim, whilst Ghazi was adamant that Mirza was indeed an
apostate. A resolution of this difference was not made easier
by the fact that
in the Muslim world there is no ecclesia, no central body which finally settles
disputes on dogma on this earth.
In respect of the first of these questions
the trial Court found that Jassiem had to do no more than to adduce prima facie
evidence
that he had been accepted as a Muslim by the Cape Islamic community
until the occasion of Ramzie's wedding ceremony, and that he
had done so. More
will be said about this finding at a later stage. As regards the other
questions, the trial Court found it unnecessary
to determine whether Mirza had
been an apostate, but seems to have preferred Sher Muhammad's evidence to that
of Ghazi, or to have
considered the former's interpretation of Mirza's writings
as being as plausible as that of Ghazi.
A further issue was whether the insulting remarks attributed to
51
Nazim were defamatory of Jassiem since they tended to lower him in the esteem
of a segment of the South African community only (viz
orthodox Muslims in the
Western Cape), as opposed to the public generally. Here the trial Court had
little difficulty in answering
this important legal question in favour of
Jassiem. On appeal Mr Albertus, for the appellants, did not challenge the
correctness
of this finding despite the fact that it involved a departure from
what many had thought to be the law.
The next two issues arose from the
defendants' reliance, in the alternative, on a plea of qualified privilege. The
kernel of this
plea was the proposition that should it be found that Nazim did
defame Jassiem, the publication was not unlawful because the words
in question
"were published and received by the congregation [attending the wedding
ceremony] in the discharge of a moral or social
duty and/or the furtherance of a
legitimate interest"; and because at the time Nazim had
52
a bona fide belief in the correctness of his utterances. (The second
allegation was of course a superfluity.) With respect to this
plea, an issue
before the trial Court, but not before us, was whether the appellants attracted
the onus of proving the facts on which
the plea was based. If yes, the other
issue was whether they had discharged that onus. The Court a quo correctly held
that a full
burden of proof rested on the appellants and that they had failed to
establish the defence of privilege.
The final issue was whether the MJC had authorised Nazim to publish the
defamatory words. On this issue too the Court held for Jassiem.
Its reasoning
falls within a relatively narrow compass and need not be summarised at this
stage.
As stated, the present appeal lies (with the leave of the Cape Provincial
Division) against the trial Court's upholding of the defamation
claims. As will
appear later in this judgment the issues were narrowed
53
very considerably during the protracted argument in this Court. We
shall
deal consecutively with the issues remaining under the
following
headings:
A. What was entailed in proof by Jassiem that he was
a
Muslim, and did he prove that which had to be
proved?
If sots. Did Jassiem prove that the words complained of were
uttered?
If so-C. Were the words defamatory of Jassiem despite the fact
that they lowered his esteem in the eyes only of a
particular community in South Africa, and not in the
eyes of the public generally?
54
If so-
D. Did the appellants discharge the onus of establishing
the defence of
qualified privilege?
If not -
E. Did Jassiem discharge the onus of proving that the
MJC was also liable
for the defamation?
A. WHAT WAS ENTAILED IN PROOF BY JASSIEM THAT HE WAS A MUSLIM,AND DID HE
PROVE THAT WHICH HAD TO BE PROVED?
It will be recalled that Jassiem pleaded that he had always been
a Muslim and that Nazim and the MJC denied that and put him to the
proof of the allegation. Two competing arguments as to what was
involved in Jassiem proving that he was a Muslim were raised in the trial
Court. Counsel for Jassiem contended that it was sufficient for Jassiem
to prove that he professed genuinely to be a Muslim, lived the life of a
55
Muslim, and was generally regarded by the Muslim community in the Western
Cape as a Muslim. Counsel for Nazim and the MJC contended
that that was not
enough and that Jassiem had to go further and prove in addition that he was a
Muslim fully entitled to be regarded
as such by the Muslim community by reason
of his faithful adherence to orthodox Islamic faith and doctrine. That would
entail, so
it was argued, his having to prove that he was not an Ahmadi or a
sympathiser, or that, if he were, that that would not disentitle
him to be
accepted as a Muslim by other Muslims. Proof of the latter would include his
having to satisfy the Court that his and his
expert witness's view of what true
adherence to the faith and doctrine of Islam entailed was right, and that
Nazim's and the MJC's
view thereof was wrong. It would also include Jassiem
having to satisfy the Court that Mirza and his Lahore followers were not
apostates,
or, if they were, that a professing Muslim who refuses to
56
denounce them is not thereby rendered apostate himself. That would also
necessitate the Court having to opine on matters of Islamic
faith and doctrine:
this despite its secular status and the fact that its conclusions would cause
neither Jassiem nor Nazim nor the
MJC to cease to believe in the correctness of
their respective religious beliefs.
The trial judge appears to have rejected
the approach urged by counsel for Nazim and the MJC and to have accepted the
approach propounded
by counsel for Jassiem. However, she balked at the latter's
acceptance of the onus of proving on a balance of probability that Jassiem
was
accepted as a Muslim. She held that Jassiem had only to establish Prima facie
that he was accepted as a member of the Muslim
community until he was branded as
a sympathiser with the Ahmadis, and that he had done so. She held further that
if Nazim and the
MJC were to succeed in "the plea of justification" they would
have to discharge the fully fledged
57
onus of proving "that Jassiem was no longer entitled to be accepted as a
member of the Muslim community". Proof that Jassiem was no
longer entitled to be
accepted as a member of the Muslim community would no doubt have been relevant
to a consideration of a plea
of truth and public benefit had such a plea been
advanced. In fact, however, the appellants raised no "plea of justification".
The
sole alternative defence pleaded was that of qualified privilege. To that
defence proof that Jassiem was no longer entitled to be
accepted as a member of
the Muslim community was unnecessary. The nature of the last-mentioned defence
is considered fully later
in this judgment. The first enquiry was what Jassiem
as plaintiff had to show, and by what standard of proof, in order to establish
the allegation in his particulars of claim that he was a Muslim. That was in
essence an enquiry going solely to the question of whether
he was entitled to
sue for defamation of himself in the eyes, not of the public at large,
58
but of only a particular segment of society. The second enquiry arose only
after the first enquiry had been answered and if Jassiem
had succeeded in
establishing whatever it was he had to establish on that score. The second
enquiry was what Nazim and the MJC had
to show, and by what standard of proof,
if their plea of qualified privilege was to be upheld.
Counsel for Jassiem
was plainly correct in submitting to the trial Court that Jassiem had to
establish upon a balance of probability
that he was accepted as a Muslim. It was
an integral element of his cause of action. It would not have sufficed (the
trial Court
appears to have thought it would suffice) for Jassiem to adduce only
prima facie proof thereof and then require Nazim and the MJC
to positively prove
the contrary on a balance of probability. So much is trite.
As we see the position, nothing turns upon the trial Court's
59
misconception in this limited respect. As counsel on both sides ultimately
conceded, there was never any real issue between the parties
on this aspect of
the case despite the state of the pleadings. In a defamation action in which the
statement complained of is one
which would damage the plaintiff's reputation in
the eyes of society at large, there is no need for a plaintiff to allege
anything
more than his own existence in that society. It is his mere existence
in society at large which gives him a sufficient interest in
the protection of
his reputation in the eyes of that society to entitle him to come to court for
relief if his reputation is unlawfully
assailed. Postulating for the moment that
an action is maintainable in South African law where a statement is defamatory
only in
the eyes of a particular segment of society, and not in the eyes of
society generally (a question to be considered presently), it
is equally obvious
that a plaintiff will have to show that he is so placed vis-à-vis
60
that segment of society, or, in other words, that his relationship with it is
such, that the statement is calculated to harm his reputation
in the eyes of
that particular segment of society. But that is all he will have to show in that
particular respect. Here there was
no real issue between the parties on that
score. It became common cause that Jassiem was so placed. Whether or not he was
rightly
or wrongly regarded, immediately before the words were uttered, as being
outside the fold of Islam and no longer a Muslim, is quite
beside the point. It
is neither Nazim's nor the MJC's case that Jassiem was not and never had been a
Muslim, and that his religious
beliefs and associated behaviour were no concern
of theirs, and their beliefs and behaviour no concern of his. On the contrary,
it
was the passionate conviction of Nazim and the MJC that Jassiem's beliefs and
behaviour were of critical concern to them and Muslims
generally, precisely
because he was a Muslim professing adherence to the Islamic
61
faith and indeed, an Imam. It is inherent in the stance which Nazim and the
MJC admittedly adopted towards Jassiem that but for his
attitude and behaviour
towards Ahmadis, his status as a Muslim could not and would not have been
questioned. The words uttered by
Nazim amounted to an allegation that Jassiem
had forfeited his right to remain in the fold of Islam, and with it his status
as a
Muslim. To require Jassiem to prove, in order to establish merely that he
is entitled to sue for defamation of himself in the eyes,
not of the public at
large, but of only a particular segment of society, that the very statement and
innuendo complained of was not
true, would be to impose upon him the entirely
inappropriate burden of proving facts which have no logical relevance to that
particular
aspect of his cause of action. One would then be requiring him to
prove wife omnia that the very statement and innuendo of which
he complains,
namely, that he was an Ahmadi sympathiser and had forfeited any claim
62
to be regarded as a Muslim and was an apostate, was not true. In the South
African law of defamation a plaintiff is not required to
prove the untruth of
the defamatory allegation. Its truth may of course be a constituent element of a
defence which may be open to
a defendant but then the onus of proving its truth
will burden the defendant. Proof of the untruth of the statements of which
Jassiem
complains was not germane to the question which arose logically at the
threshold of the case, namely, whether he was entitled to
sue for defamation of
himself in the eyes of only a particular segment of society. The answer to that
question has nothing to do
with whether or not he had in fact forfeited any
claim to be regarded as a Muslim. The answer has to be found by asking the
relatively
simple question: was his relationship with the particular segment of
society which would regard the words uttered as defamatory such
that the esteem
in which that segment of society held him would be
63
diminished? In the present case the answer must obviously be in the
affirmative.
WERE UTTERED?
There are two wholly opposed versions of what Nazim, and also various other
persons, including Jassiem, said during the altercation
at the Yusufiya mosque
prior to the wedding on 20 December 1985. According to Jassiem's particulars of
claim in both cases Nazim
said that Jassiem was an Ahmadi or a sympathiser with
the Ahmadis. In response to a request for further particulars (again in both
cases) as to the precise words used, Jassiem replied "Hy is 'n sympathiser met
die Ahmadis. Hy staan saam met hulle." As Nazim and
the MJC denied the use of
these words the onus of proving that they were spoken rested on Jassiem. But as
the defendants were not
content with denial, but in the alternative raised an
elaborate plea of qualified privilege, the potential for testimonial
64
embarrassment was created. The potential became real when at the trial the
defendants persisted in attempting to maintain both defences
simultaneously when
adducing evidence.
Before setting out the conflicting versions of what
happened at the mosque, something more should be said about the six witnesses
(three on each side), their relationships, and how and at which moment they came
on the scene.
Jassiem's witness Abrahams was his second cousin, who has known
him since his return to Cape Town shortly before the Second World
War. Abrahams'
father had died and in his place Jassiem "staan amper soos 'n vader". The
evidence speaks of a strong family bond.
To add Abrahams' own words, "Sheikh
Jassiem (is) alles by my." In weighing the credibility and weight of the
testimony of Abrahams
and Jassiem's other witness, his younger brother Abdullah,
the trial court was
65
fully alive to the strong family bonds in both cases.
Ramzie, the
bridegroom, sided with Gydien, his father-in-law as he had become, in giving
fumbling support to Nazim, and so took the
side opposite to his own father,
Abrahams. One of the consequences of the wedding has been the cleaving asunder
of the Abrahams family
("my hele familie is ge'split'", as Abrahams put it).
Of the six witnesses Jassiem was the first to enter the mosque accompanied by
his nephew Mogadien Price. After he had prayed, he took
his seat on the right
hand side, where he remained quietly seated. In the meantime Nazim, who was to
officiate, was waiting in his
office next to the mosque. According to him and
Gydien, who represented and appeared for his daughter Fatima, Gydien and
Fredericks
came in to pay their respects. After a brief conversation, also
involving Fredericks, Gydien stalked into the mosque in quest of
Jassiem. The
discussion in
66
the office will be revisited. Some time later Nazim entered the mosque. There
then commenced the events which are so much in dispute.
There were some 200 to
300 persons present, all of whom, it was common cause, were Muslims.
The
bridegroom's party consisting of Ramzie, his father Abrahams, Abdullah, and two
groomsmen, arrived some 15 minutes late. Accordingly
none of them witnessed the
start of the altercation. What awaited them was described by Abrahams, "Wat ons
uit die kar klim, toe
hoor ons 'n lawaai."
Jassiem's version may now be set out in greater detail. No hostility was
evinced by guests when he arrived at and entered the mosque.
Indeed the
atmosphere was a wedding atmosphere and friendly greetings were exchanged. After
praying he sat down and nothing unusual
happened before Nazim entered. In
particular Jassiem denied
67
that Gydien, with whom he was not well acquainted, or anyone else came up to
him where he was seated to speak to him about his presence
or the need for his
departure.
After Nazim's entry there was trouble for about half an hour, with
many persons participating and some things re-iterated or taken
up by others, so
that an accurate minute by minute account by any witness cannot be
expected.
In sum Jassiem's version is this. Speaking fiercely in a loud
voice, so that the whole congregation could hear, and addressing him,
Nazim
proclaimed that he was to leave the mosque and that the wedding would not
proceed for so long as he remained. The reason for
his having to go was that he
was an Ahmadi sympathiser. This last was said at least three times at various
stages. Jassiem declined
to leave saying that he was an invited guest. During
the course of his tirade Nazim said, "Ons
68
wil hê hy moet saam met ons staan, maar hy wil nie saam met ons staan
nie. Hy staan saam met die Ahmadis. Hy is 'n Ahmadi sympathiser."
He then
invited the congregation to show their "solidarity" with the "council" (this can
only be the MJC) by rising. Some rose, others
sat, and yet others walked out
visibly upset by what was happening. Some members of the congregation took up
the call for Jassiem
to leave. At this stage Ramzie and his party had not yet
entered.
When Abdullah and his companions did enter Nazim rounded on him and
said, "Jy moet ook uit, jy 'encourage' dit." A struggle ensued.
There was an
attempt to eject Abdullah. At this point another of Jassiem's nephews, one Adiel
Waggie, spoke up, expostulating to
Nazim, "Watter reg het jy om my 'uncle' te
wil uitgooi uit die Moskee uit?" To which Nazim responded aggressively, "Ek gooi
vir jou
ook uit." Attempts were made to seize Adiel, but he escaped from the
mosque. In
69
the meantime, whilst the altercation between Nazim and Abdullah proceeded,
Nazim's supporters wrestled with Abdullah and knocked him
down. One was heard to
say "Jou 'bastard'" - language that clearly shocked Jassiem.
A group then
appealed to Abrahams to ask Jassiem to leave. Fatima Gydien's brother came up to
Jassiem and asked him to leave, so that
the wedding could proceed. Jassiem
declined saying that he had been invited to attend. Abrahams then addressed him
in similar terms,
at which Nazim interjected, "Nie dat die troue kan aangaan
nie: vir die 'sake' van die Deen (meaning for the sake of the faith or
religion)". Jassiem remained seated and did not answer Abrahams.
This was all proving too much for the bridegroom Ramzie, who went outside and
burst into tears. Jassiem followed him to calm him down,
and found him with his
tie off expressing doubt about going on
70
with the wedding. Jassiem re-entered the mosque. Ramzie's companions
succeeded in calming him, and after a time he followed, approached
Jassiem, and
asked him please to leave. Jassiem did not answer him either. He was angry and
deeply insulted by the acts of Nazim,
but he walked forward and offered two
prayers in order to compose his troubled spirit.
That done, he concluded that
for the sake of Ramzie's wedding he should leave, and he told him that he would.
He and Abdullah then
walked out, slowly. They were not present for the
wedding.
Jassiem explained that if he had been quietly and decently requested by a
member of one of the families or even Nazim not to remain
in order to forestall
trouble, his reaction would have been different. What got his back up was
Nazim's unprovoked and insulting
attack. That is Jassiem's account.
71
Abdullah had been invited to the wedding by Ramzie. Nothing was sought to be
made of his saying this when he was later cross-examined.
The significance of
this will appear when the attack on Jassiem relating to Air invitation is
considered. Abdullah did not dispute
Ramzie's version that it was to him rather
than Jassiem that Ramzie had come to learn the Arabic formulae to be spoken by
him at
the wedding. He could not remember which of them had performed this
service.
When he entered the mosque with the bridegroom's party there was
commotion, and Nazim was pointing at Jassiem and saying in a loud
voice that the
wedding would not proceed until he left, that he should leave because he would
not take a stand "met ons", and because
he was an Ahmadi sympathiser. During the
course of his outburst he said that if he had been of Jassiem's age he would
have taken
him by the scruff of his neck and thrown him out. But Jassiem's age
was against him
72
(Nazim). Abdullah could not remember if Jassiem had first challenged Nazim to
throw him out. Ramzie walked forward to take his seat.
Abdullah prayed and then
followed him. On seeing him Nazim pointed his finger and said to him in a loud
voice, "En jy moet ook uit,
want jy 'encourage' dit." Abdullah responded to
Nazim that he should get on with the wedding and forget about them. There is a
conflict
in Abdullah's evidence as to whether this statement provoked Nazim's
attack on him, or followed it. Abdullah then proclaimed "Allah-Hu-Akbar."
("Oh
Allah the Almighty") to which some retorted, forget it, they did not wish to
hear this from him, he should get out. Someone
shouted, "Ons wil die 'front
page' van die Sunday Times he." Jassiem came up to him to persuade him not to
respond, and then went
forward, knelt down and prayed. Some shouted at him, "Wat
gaan hy bid voor? Hy gaan niks kry vir daardie nie. Dit is sommer nonsens."
He
saw Ramzie go out. Three
73
persons then took hold of him, Abdullah, as if to throw him out. One shouted,
"Jon 'bastard' (Abdullah also apologised for having
to repeat this word) jy maak
moeilikheid hier. Jy moet uit." During the scuffle his chest was hurt and his
turban fell off. His assailants
having failed to eject him, he walked out after
Jassiem, who had asked him to follow. As he was leaving he called out to Nazim
in
Arabic, "Ek dank vir Allah op al hier te doen staan en ek vra bewaring deur
Allah van die te doen staan van die vier se mense." Nazim
responded, "Na die wat
jy nou gesê het kan ek beter sê as jy en harder." Three times
Abdullah challenged him to do so,
saying "Sê!", without result. On the
fourth occasion he added, "Jy kan nie. Jy lieg. Jou hart is vuil."
Abdullah confirmed that at a stage after he had prayed Adiel Waggie had cried
out, "Wat maak julle met my 'uncle.' Julie kan hom nie
uitgooi nie. Dit is 'n
moskee." That is Abdullah's account.
74
Abrahams, the groom's father, described a state of commotion in the mosque,
with people screaming and shouting. When he entered Nazim
was pointing at
Jassiem and saying in a loud voice that he must get out, that the wedding could
not proceed with him present, and
that the reason why he had to go was that he
was an Ahmadi sympathiser and would not stand "with us". Further, that when
Nazim saw
Abdullah he ordered him out too, saying that he encouraged Jassiem,
that when he, Abrahams, was persuaded to ask Jassiem to leave
for the sake of
the wedding, Nazim shouted, not for the sake of the wedding but of the faith,
that Adiel protested at the treatment
being meted out to his uncle in a mosque,
that Abdullah was insulted and assaulted and his turban knocked off, that Ramzie
went out,
and in a state of tears said that he did not wish to marry, and that
he after a time succeeded in his entreaties to Jassiem to leave,
taking Abdullah
with him, the latter enkindling the final
75
exchange with Nazim, already described, as he left.
We come to Nazim's
version. The fundamental differences between his and Jassiem's version are that
he denies any initiative in having
Jassiem expelled, attributing that to Gydien,
and also denies having uttered any of the allegedly defamatory words, or indeed
any
of the other verbal aggressions directed at Jassiem or members of his
family, such as are described by Jassiem or his witnesses.
He was sitting
waiting in his office when someone came in to tell him that Jassiem was in the
mosque. He had not been expecting him.
Shortly afterwards Gydien and Fredericks
came in to greet him. He told Fredericks, who was a member of the mosque
committee, that
Jassiem was inside. At this Gydien, looking very annoyed, and
without a word, strode through the door leading from the office to
the mosque
and, together with Fredericks, disappeared from view. A few minutes later he
76
followed (presumably to officiate at the wedding ceremony, although he
did
not say as much) and went towards the front. There Gydien came up
to him
saying that the wedding was not to proceed until Jassiem left.
From this he
inferred that Gydien had spoken to Jassiem without result.
He saw Jassiem
sitting down and then addressed the congregation, saying
that he could not
proceed with the ceremony as the father of the bride had
told him not to
proceed until Jassiem should leave. The latter at once
responded, "Gooi jy
vir my uit?" To this he answered, "Jy wil hê ek
moet vir jou uitgooi dat jy my kan 'court' toe vat," adding, "Jy moet vir
ons sê wat is jou staan met die Ahmadi 'movement'" He was then
asked
by his counsel, "Yes, why did you say that?' and he answered:
"Because a letter was sent to the Court of Islam and it was reported by our
administrator in our meeting." (This is a reference to
Sheikh Gabier's report
concerning the Loop Street mosque contained in the MJC minutes of 13 November
1985).
77
The record proceeds
"Yes ... And eventually the Council decided that a letter be sent to Court of
Islam Mosques." (This is a reference to the MJC letter
of 26 November 1985 to
the Loop Street committee.)
"Yes ... Because of him allowing Ahmadis and sympathizers in his Mosque. And
then there was rumour outside also."
Nazim himself considered Jassiem to be an Ahmadi sympathiser who allowed
Ahmadis and their sympathisers into his mosque. That was
why he had asked
Jassiem to clarify his position. Jassiem's answer was, "Ek kan nie mense Kafirs
maak nie." This had been a theme
of Jassiem's for many years, and as such has a
certain plausibility, but a suspicion that it was falsely obtruded into the
exchange
by Nazim is created by the fact that this critical response was not put
to Jassiem or any of his witnesses.
By now some of those sitting down were
shouting at Jassiem to get out. "As an Imam of the Mosque," said Nazim, "we
really cannot
78
allow things to go completely out of hand." So, turning to the people, he
indicated that those who wished Jassiem to leave because
of what he had just
said should stand up. Upon this, as he had expected, "everybody stood up." But
his plan did not work. Jassiem
did not go. His reason for not approaching
Jassiem quietly with a request to leave, he gave as being that where Gydien had
failed
(as he inferred he had) he had no real chance of persuading Jassiem.
Jassiem's attitude towards him was one of restraint, he would
not allow Nazim
"really to communicate with him." Nor did he try. Things continued to be
disorderly and he tried to calm the people
down. Jassiem then went to pray. At a
later stage he noticed Abdullah, but he did not speak to him at all. Jassiem
then left.
The likelihood that he would have ignored Jassiem's co-Imam at the offending
Coovatool mosque will be addressed later. Asked in cross-examination
why, if he
had not ordered Abdullah out, people had
79
grabbed hold of him, he answered: "... Grab who?" The record proceeds:
"Abdullah - Abdullah?
Yes - I saw only a shuffle, but I was not very near to
that, I was not near to that area.
You do not know why it happened? — No. The
mosque was full, there was quite a number of people.
I was not there."
He denied having called Jassiem an Ahmadi symphathiser or
having said
anything about standing in solidarity with the Council, indeed
having
mentioned the Council at all. (However, in cross-examination he
agreed that
he had asked the people so to show their solidarity.)
Concerning Adiel
Waggie's alleged protest at his uncle's treatment he
said, when asked about
it in cross-examination:
"A lot of people were then speaking. I do not know, some people came to tell
us things, some people shouted at us.
Court
: Did somebody ever suggest that it would be improper to throw a
man out of the house of God, the house of Allah? No, not to me, Your
Ladyship."
80
Gydien substantially confirmed Nazim's version of what had
happened in the
office. Inside the mosque he approached Jassiem who
was sitting alone. He sat
down next to him and said:
"Sheikh, ek is die wakiel van my dogter. En Sheikh maak nie reg nie, want
Sheikh het belowe vir my dat daar gaan nie moeilikheid wees
nie. Ek het die
landers belowe dat daar gaan nie moeilikheid wees in die mosque nie en nou sit
Sheikh hier in die mosque en ek wil
hê Sheikh moet die mosque verlaat
asseblief."
Jassiem replied. "Vir wat? Ek was genooi."
It should be noticed that there is no hint in Gydien's prior
evidence in chief that anyone in the mosque was reacting to the
presence
of Jassiem, although a good number of people were already
present.
Indeed in cross-examination he agreed that everything in the mosque
was
quiet. Jassiem was just sitting there, and nobody was interfering with
him.
He went up to Nazim, who was by now in the mosque, and told him he
81
was not prepared to proceed with Jassiem present. Nazim went to the front,
repeated this message to the congregation and asked those
in favour of Jassiem's
leaving to stand up. Almost all did.
It will be seen that Gydien does not confirm the critical part of Nazim's
version, because according to Gydien, Nazim's announcement
that the wedding was
not to proceed was immediately followed by Nazim's call upon those present to
indicate their wish by standing
up. But according to Nazim these two events were
separated by Jassiem's "gooi jy vir my uit?", Nazim's "Jy wil hê ek vir
jou
uitgooi dat jy vir my 'court' toe vat", then the essence of Nazim's version
"Jy moet vir ons sê wat is jou staan met die Ahmadi
'movement'", followed
by Jassiem's failure to denounce by saying "Ek kan nie mense kafirs maak nie".
This then, according to Nazim,
led him to ask the people "that they must stand
to show if they want him in the mosque, because they have heard what
82
he said now". Thus the essence of Nazim's version, that he challenged Jassiem
to say where he stood on the Ahmadi issue, is lacking
in that of Gydien, despite
the expectation that he would have listened to these exchanges with close
attention. Nor is the matter
made easier for Nazim by the failure of counsel for
the appellants to put in cross-examination what Jassiem had allegedly said about
not making people kafirs (as already stated), or that Nazim had called on the
people to show their reaction to this statement. Further,
the important phrase
"because they have heard what he said now" was mentioned by him for the first
time during his cross-examination.
To continue with Gydien's version, Nazim said nothing about the Council or
solidarity with the Council. Then to quote Gydien, "Well
actually chaos broke
out." People were milling around and talking loudly. He was upset and did not
wish to see his daughter's wedding
83
spoiled. At his instance his uncle Salie spoke to Jassiem, without result. He
then approached Abrahams, suggesting a joint approach
to Jassiem. Failing
results he would rather go home. The two of them went to Jassiem. Abrahams asked
him please to leave the mosque,
"vir die 'sake' van die kinders. Moenie hulle
dag 'spoil' nie." Jassiem's response was, "Gooi jy ook dan nou vir my uit, ons
is dan
ramilie." Abrahams denied that he was throwing him out, and again
entreated him on behalf of the children. Gydien then said to him,
"Sheikh, jy
hoor mos nou wat die man vir jou sê, staan op kanala (please) en gaan
uit." Upon that Jassiem left. Gydien claimed
that he had not heard Nazim say
that Jassiem was an Ahmadi sympathiser, or that he stood with the Ahmadis and
not with the Council,
or that Jassiem should leave not for the sake of the
wedding but for the sake of the faith. When asked in cross-examination why he
had not heard what Jassiem and his witnesses had said they had
84
heard, particularly when he agreed that Nazim had spoken loudly, he said "It
is a big mosque." Nor did he hear anything to the effect
that but for the
difference in their ages Nazim would have thrown out Jassiem with his own hands.
His answers as to whether Nazim
ordered Jassiem out went like this:
"'Hy moet uit'. Did you ever hear that? I can't recall that one, Sir.
You can't recall that? No, Sir.
Now are you telling the court you cannot recall it or don't you want to say
it? Say what, Sir?
That he did say to him in a loud voice, in almost shouting voice, 'You must
out, you must go out'? - A lot of people was talking in
a loud voice at that
time, Sir. I do know for a fact Sheikh Nazim did speak but what he said I was
very upset at that time, I didn't
know what to do and I didn't hear.
Didn't you see him pointing with his finger? -No, Sir"
Being very upset was also the reason he gave for not seeing and
hearing a young man (Adiel) saying you cannot put out my uncle because
85
this is a mosque. But he did see a scuffle. The record proceeds:
"Did you see Sheikh Nazim taking, moving towards him and saying, 'Ek smyt jou
nou self uit'? —
Who Sir?
Sheikh Nazim? -- Said to who? To this young boy? — No, Sir You never
saw that? — No."
Abdullah he did see involved in a scuffle with "somebody", but he did not see
Nazim address him or shake his finger at him nor threaten
him.
These passages strongly suggest that Gydien is selective about what he is
prepared to admit to having heard and seen. His brand of
truthfulness seems to
avoid expressio falsi whilst allowing suppressio veri.
The last of the six witnesses, Gydien's son-in-law Ramzie Abrahams, took
suppressio veri to its outer limits. One is almost led to
doubt whether even the
bridegroom attended the wedding. According to
86
him, after he entered with his father and Abdullah he saw people
standing
around in the middle of the mosque, talking loudly. Jassiem was
sitting
down. A couple of minutes after going to the front, Ramzie walked
out
of the mosque, because he became very emotional. Outside he cried.
He
was there for some 15 minutes whilst his friends consoled him. He
then
went in again. That practically sums up his evidence in chief. When
the
defendants' counsel brought him to the point, the following occurred:
"Did you in the mosque hear Shaikh Nazim, did you hear him say anything to
Sheikh Jassiem? ... (After a long pause) ... That would
be difficult to say
because everybody was talking.
So you say that you did not hear him say anything specifically to anything
specific to Sheikh (Jassiem)? ... Not specifically, no"
Attempts to get him to expand in cross-examination fared no
better, "All I can remember was just people standing around talking
87
loudly." He could not describe anything that anybody had said to anybody
else. This from a man who said he actually wanted to testify,
had volunteered to
do so, and who holds a BA degree. But he did agree that Jassiem was quietly
seated and that he saw no fighting
or quarrelling involving him.
An outline
of the Court a quo's impressions of the six witnesses and its finding on
credibility has been given earlier in this judgment.
In summary that Court
believed the plaintiff's three witnesses (whatever their shortcomings) and
rejected the evidence of those called
by the defendants as untruthful. We have
to consider whether any misdirection on the part of the Court below has been
demonstrated.
If there be none the appellants will have to satisfy us that the
Court a quo was wrong notwithstanding. If there be, then we are
entitled to
disregard the findings below, in whole or in part, depending upon the
circumstances. We are to be alive to the
88
advantages presented to the trial judge which we do not enjoy. See R v
Dhlumayo and Another 1948(2) SA 677(A) at 705-6: S v Kelly
1980(3) SA 301(A) at
307-8.
We shall commence our review of the witnesses with Nazim. The finding of the
Court a quo was unequivocal. "I have no doubt that Nazim
lied about the events
at the wedding and his part in those." In the forefront of the reasons for
disbelieving him was the total change
in character which his version entailed,
from the leader valiant in the faith, bellicose in enjoinder, to the passive,
the meek,
not even suggesting a course of action, which according to his lights
it was his clear duty to demand, the president of the MJC who
at the critical
moment was content to leave matters to the uncertain handling of a layman. In
order to understand this point fully
it is necessary to recall the historical
background.
89
Nazim had been a party to the MJC fatwa of 8 May 1965.
Thereafter he
embraced it wholeheartedly. Because of the political situation in South Africa
its terms could not be enforced by punishment
of decapitation as might happen in
an Islamic state. However, subject to local restraints, the fatwa is implacable.
It envisages,
inter alia, civil death as a Muslim. One of the first of its
explicit commandments is that Ahmadi sympathisers are not to be allowed
to enter
a mosque. That was what, according to Nazim's acknowledged belief, had happened
at the Yusifiya mosque, his mosque, on 20
December 1985 before he entered it.
But the imposition of the MJC's will upon the Western Cape Muslims had not been
without a hitch.
This must have been galling to its president. After the Lahores
had applied for a welfare organisation number, Nazim delivered an
address at the
Masjied-us-Salaam mosque on 11 June 1982 during the course of which he
reaffirmed:
90
"In a non-Islamic country it is encumbrant upon every Muslim to disassociate
himself in all respects from a murtad (which included
a follower of Mirza) and
to have nothing whatsoever to do with him. It follows that such a person cannot
be admitted to any Islamic
holy place or even to the home of a Muslim and that
no contact whatsoever between Muslims and murtads is permitted."
On 20 November 1985 Williamson J gave judgment against the
MJC declaring
Peck (an admitted Lahore) to be a Muslim, with all the
rights and privileges
attendant thereon, including entry into mosques and
posthumous entry upon
burial grounds. After this Nazim, speaking for
the MJC, publicly stated that
a court ruling by a non-Muslim could not
be binding on a Muslim community:
that notwithstanding the Court's
order Ahmadis would not be allowed into
mosques, and would continue
to be branded non-Muslim: that the MJC would not back-pedal on
these
matters even if members made themselves guilty of contempt of
court,
and that they would go to jail if necessary.
91
On 26 November 1985 the MJC had written to the Loop Street committee
concerning Jassiem's attitude to Ahmadis. The terms of the letter
have been set
out above. The response was dated 5 December 1985 and has also been quoted. It
included the stinging accusations that
the MJC, "withdrew from the Supreme Court
case in such a shocking and appalling manner and allowed the Ahmadis to win the
case by
default...": further, "This truly was the blackest day in the history of
the Cape Muslims and has left many a serious question unanswered
as to the
ability of the MJC to intervene, defend or propogate Islam in a responsible and
sincere manner." Nazim sought to dispute
that he had become aware of the
contents of this letter before the wedding but his attempts to do so were most
unimpressive.
On two recent occasions mentioned in the record the MJC had succeeded in
furthering its campaign against Jassiem's brother-in-law
92
Erefaan Rakied by exerting pressure on mosque committees: on that of Grassy
Park in the incident already described, and on that of
Lonedown Street in
connection with the employment of Erefaan's son Nurredwhan as a teacher. Now the
MJC was confronted by a mosque
committee, that of Coovatool, which answered
back. Apart from berating the MJC it handed the issue of Jassiem's theological
standing
straight back, saying that they as laymen found no fault with
him.
By the time of the wedding Nazim must have been smarting. Jassiem, who
had been an irritant for many years, was an obvious target,
not only for
retorsion. Even more important, Jassiem's presence provided an opportunity to
re-assert the MJC's authority. Indeed
to fail to do so would have been quite
inconsistent with the defiance expressed by the MJC through the mouth of Nazim
less than a
month before. Given the history it would have been an extraordinary
thing if Nazim had not taken
93
a decisive stand on this occasion. Nor did time mellow his stand. In chairing
a meeting more than seven months after the wedding,
on 3 August 1986, he adopted
or expressed statements such as,"... fight these alien forces to the bitter
end," "... they must immediately
deal with these people immediately ('these
people' being Ahmadis who entered a mosque)" and "Ons moet almal in die 'front
line' wees
of in die "firing line'." This is the talk of the battlefield not of
the appeaser nor of the mild catechizer.
Nazim would have the trial Court believe that against this background he did
nothing other than report Jassiem's presence. Whilst
in the office he did not
state what must be done, he did not ask Fredericks, who was an office-bearer, to
do anything, (although
when pressed he "thought" Fredericks would ask Jassiem to
leave); he did not ask Gydien what he was off to do; he entered the mosque
without finding
94
out what, if anything, Gydien had done; he did not claim in evidence that his
intention was to eject Jassiem if Gydien had not succeeded
in doing so (this
would have been too near the bone); and he did not obey the MJC's binding
injunction that Ahmadi sympathisers were
not to be tolerated in a mosque.
Instead he called for a vote as to what was to happen. We agree with the trial
judge's comment that
the suggestion that Gydien and not Nazim took the lead in
trying to eject Jassiem "is so improbable that one may describe it as
romancing."
The trial judge relied on another improbability also, the reverse of Nazim's
inaction, that Gydien would have taken the initiative,
without any direction
from Nazim, to create a scene at his own daughter's wedding at a stage when all
was peaceful. He happened to
be in the presence of the president of the MJC, the
man above all in the Western Cape to say what to do and who was to do it. All
the evidence is to the
95
effect that there were no outward signs of hostility to Jassiem before Nazim
spoke (whichever version he uttered). Gydien conceded
that if Jassiem had simply
been left alone it was quite possible that there would have been no trouble, but
then "I would not have
felt good about it afterwards". He acted because of
concern for his own feelings and those of the community. He was not concerned
at
all with what Nazim might think. It had not occurred to him that Nazim might
consider it his duty himself to take action. All
of this is surpassing strange,
especially as up to that moment Gydien had simply assumed that Jassiem would not
be present, assumed
after what had at best been an ambiguous exchange, to which
reference will be made later. The trial judge was right in our view to
regard as
highly unlikely Gydien's "theological fervour", he being "just an ordinary
Muslim", who on the defendants' version was
supposed to have started the
disruption of his daughter's wedding.
96
There is a further jarring note in the evidence of Nazim, Gydien and Ramzie.
It relates to their attitude to Abdullah. Over many years
he had been Jassiem's
assistant Imam at Coovatool, where so many iniquities were supposed to have been
perpetrated, and he was his
younger brother. Given the weight attached by the
MJC and its adherents to guilt by association, it is difficult to see why
Abdullah
should not have been regarded as seriously suspect, and at least worthy
of interrogation. Yet Ramzie went to him for ceremonial instruction
prior to the
wedding. He knew that he had been invited to the wedding by his father,
Abrahams, and the three of them went to the
wedding as a family group. Gydien
had raised no question about his attendance. The vague foreboding of impending
trouble to which
he deposed did not extend to Abdullah's presence, as he had no
knowledge of any trouble between him and the community. Gydien's view
was
otherwise. He would have objected to
97
Abdullah's coming, but he took no special steps to warn him off, as he took
it for granted that because of the message that he was
supposed to have sent
Jassiem, "I presumed his brother would also take that as he himself as well." He
was unaware that his future
son-in-law had gone to Abdullah for instruction, or
that he would or did arrive at the mosque in the same car. But when he saw
Abdullah
in the mosque he did not ask him to leave, because, "... at that moment
like I said, there was chaos in the mosque, Sir." As far
as Nazim is concerned,
he did see Abdullah in the mosque but, as already stated, denied having
addressed him. Questions were put
to him as to why Abdullah also was not put to
the test and the vote:
"How did you view his position on the Ahmadi issue? ... We have not gone into
his position as such yet.
You had not gone into his position? ... We only dealt with the plaintiff.
But surely you knew that he was the plaintiffs
98
assistant ...
His brother, yes.
Beg your pardon? ... His brother.
Ja, but you. know that in the Koovatool Mosque as well as in the Imam
Jassiem, he was assistant to the Shaikh. He performed Imam services
at both of
those mosques. Correct? ... Correct.
Correct. And that if Ahmadis and Ahmadi sympathisers had been allowed into
the mosque he must have been well aware of it? ... The
brother?
The brother, yes? ... Yes."
This passage together with that following,
already quoted in connection with why persons should have grabbed Abdullah if
Nazim had
not addressed him as claimed, is a vintage piece of Nazim evasion. If
the MJC had not earlier adopted an attitude towards Abdullah
(and Nazim said it
had not), and if Nazim had said nothing to or about him in the mosque, it is
difficult to understand why Abdullah
should have been so vigorously set upon,
without Nazim being able to make out why it was happening. It should also be
remarked that
Nazim's conduct at the
99
Abrahams/Gydien wedding is in sharp contrast with Sheikh Salie's conduct at
the Albertyn funeral a few weeks before. There Sake, also
a member of the MJC
had singled out both Jassiem and Abdullah. He seemed to have no difficulty with
the fact that the MJC had not
"gone into the position" of Abdullah.
Nazim is
also very unconvincing about another event that occurred five days after the
wedding. On 25 December 1985 a meeting attended
by no less than 50 mosque
committees was held at the offices of the MJC, which led to a letter dated 30
December 1985 recording an
unanimous resolution to send a delegation to
ascertain the "Islamic stand" of the Loop Street mosque committee on the subject
of
Jassiem's "links" to the Ahmadis, and his failure to denounce them. This was
the very subject that the MJC was trying to pursue with
the same committee. Yet,
although he was president, Nazim claimed to know nothing of this
100
meeting. His professed ignorance carries no persuasion, and is no doubt to be
accounted for by the fact that at the time Jassiem's
other claim, based on the
MJC's having incited the committee to dismiss him, was still alive.
The Court a quo recorded that Nazim had been evasive about many matters. The
transcript of his evidence is indeed replete with evasion.
With regard to Gydien the trial Court's views were expressed thus, "... his
version of what sparked trouble at the mosque ... is so
improbable that it must
have been largely concocted. ..."
Concerning Ramzie, the trial judge said, "He not only cries easily, he lies
easily. I have no doubt that he too was not honest with
the Court. There are
contradictions and improbabilities inherent in his evidence."
101
These findings were fully and convincingly motivated by the Court a
quo.
Turning to the evidence given on Jassiem's side, the trial judge's
general comment was that such flaws as marred it were mainly due
to age, quality
of intellect and memory, and differences of observation of confused events.
Concerning Abrahams, she held that his evidence was not satisfactory in all
respects. One respect in particular was that he was aware,
contrary to what he
tried to suggest, that Jassiem's presence at the wedding might cause
friction.
There was much evidence concerning the invitation given to Jassiem, and it
has to be explored in order to understand this point. According
to Ramzie, at
his father's insistence he took a wedding invitation to Jassiem. Later his
father asked him to approach Gydien
102
enquiring whether Jassiem could attend. Although reluctant to bear this
message Ramzie did so, delivering it in Gydien's kitchen in
the presence of
Fatima. Gydien's response was that if there was going to be trouble Jassiem
should rather stay away. Upon being told
this Abrahams' reaction was that if
that was so he would himself not attend at the mosque. Ramzie went to his mother
and requested
her to cancel the arrangements for the reception. When his father
heard of this he took to his bed. Ramzie then went to Jassiem's
home. When he
entered he began to cry. He told Jassiem of the trouble with his father and
requested him to confine his attendance
to the reception. After some remarks
about mixing with Christians and Jews not altering one's allegiance, Jassiem
said that Ramzie
was not to worry, everything would be alright. Ramzie
understood from his words that Jassiem would not come to the mosque. He left
it
to Fatima to convey the answer to her father. Later, when he
103
was receiving instruction from Abdullah the latter said that his father
should not have asked permission for Jassiem to attend at
the mosque, and asked
Ramzie if he did not have some young friends who could prevent the two brothers
being forcibly removed from
the mosque. (Abdullah denied this conversation).
Further, according to Ramzie, he feared that there might be trouble at his
wedding
because of the rumours about Jassiem's Ahmadi convictions, the attitude
of the MJC and the close-knit nature of the local Muslim
community.
Gydien largely confirmed this evidence. He said that his reason for
requesting that Jassiem not attend was that he did not want trouble
at his
daughter's wedding. When the message came back that Jassiem had said that he was
not to worry, everything would be alright,
he assumed that this meant that he
would not attend. He did not seek any confirmation that this was in fact what
Jassiem intended.
Asked why he
104
did not, he gave the answer, "I can't stop him from coming to the mosque,
Sir." This is to be contrasted with what he claimed he did
when he did come to
the mosque.
Abrahams said that he had personally invited Jassiem to the
wedding about a month before the time. Thereafter Ramzie had taken the
written
invitation. He also asked him to enquire of Gydien whether Jassiem might attend.
There was no immediate reaction, but Fatima
then came to him saying that Gydien
had nothing against Jassiem. She herself had no objection either. There was no
suggestion that
Jassiem should stay away. In cross-examination he agreed that,
starting about a year before, Jassiem's position had become difficult
again as
many people said that he was an Ahmadi sympathiser. "Die hele Kaap het gepraat
daarvan." That was why he had sent Ramzie
to Gydien, but his concern was set at
rest when Fatima had come to him. Ramzie himself had
105
brought no answer. In the upshot he did not expect trouble. He denied that
the invitation to Jassiem was intended as a challenge to
Nazim. But he also
said, when asked whether he did not think that Jassiem's presence might create a
problem, that he had not thought
about it. At this stage it appeared for the
first time that after Fatima had brought the message from her father and as she
was leaving
she was in tears. Why that was he could not say. According to him he
was concerned with the message she had brought. Her crying was
not his concern
and he did not ask her about it. Initially he denied that there was trouble
between him and Ramzie about the impending
wedding. The explanation for Ramzie's
moving out of his house was that he was busy setting up his new home. He was
alarmed when he
found that Ramzie had left without telling him, but attributed
this to Ramzie's talking to his mother rather than himself. This explanation
reflects tension between father and son. Abrahams
106
conceded that he had said to Ramzie that if his family was not to be at the
wedding Ramzie was not to count him a father. After some
hedging he conceded
that "family" meant, or included Jassiem. Unconvincingly he tried to play down
the extent of the friction. He
denied that it was a communication of Gydien's
desire that Jassiem should not attend that had led to his saying that Ramzie was
not
to count him a father. In our opinion the trial court was correct to comment
adversely on this part of Abrahams' evidence. What it
all amounts to is that
Abrahams placed his loyalty to his surrogate father above any possible
embarrassment to his son (as Ramzie
complained in his evidence), and was not
prepared to be frank about it. That does not entail, necessarily, that the rest
of his evidence
has to be rejected without more.
The trial court's favourable assessment of Abdullah's truthfulness,
notwithstanding his shortcomings as a witness, have been set
107
out earlier in this judgment and there does not seem to us to be any basis
for not accepting that assessment.
On appeal the attack on Jassiem's
credibility largely revolved around the incidents in 1965 and 1970, when he was
entreated to "return
to the fold." It was contended that his dealings with the
MJC were characterised by a singular lack of honesty and candour. The counter
view is that the MJC, for all its professions of desire for reconciliation and
unity among Cape Muslims, was really more concerned
with maintaining its sway
over them, and that Jassiem, a man who detested witch-hunts, was treading that
difficult path between his
conscience and his yearning to be accepted by the
only community which he regarded as his own. An approach to this subject cannot
but be affected by Nazim's utter falsity as a witness, be it, from time to time,
the result of mendacity, or religious fervour so
intense as to blind him to all
opinions but his own, as it is his
108
account which is to be compared with that of Jassiem where there is a
conflict in the oral evidence.
The 1965 episode has been summarized earlier
in this judgment. For the defendants it was contended that Jassiem treated the
delegation
from the MJC deceitfully. The thrust of Jassiem's version was that
the delegation had come to make peace, that he should accept them
as brothers
and return to the Council. That stands in the forefront of his letter of 28
March 1965, which was never expressly answered.
Further, he saw this as an
opportunity to extract a public retraction of statements by Sheikhs Sharkie and
Najaar presumably to the
effect that he was not a Muslim. His letter proceeds to
record that he assumes that the MJC has accepted him as a Muslim and to state
that he awaits a similar acceptance by the two Sheikhs. Nazim claimed in
evidence that their names were not even mentioned at the
meeting. It would seem
pointless and therefore
109
unlikely for Jassiem to have introduced their names if this were so. On the
other hand it also seems unlikely that the delegation
would not have raised the
subject of the Ahmadis with Jassiem, something that clearly occupied their minds
at the time. But he was
giving evidence 22 years after the event, and it is of
the nature of human memory to retain what one thought was important on a distant
occasion and to discard or submerge what one thought was not, and also to build
recollection around such written record as remains.
However, the main charge
against Jassiem is that in his letter he gave the impression that he might
denounce the Ahmadis after reflection,
when in fact he had no such intention. In
cross-examination he conceded that there was substance in this charge. Also, it
is contended
that his belated concession that Ahmadis might have been mentioned
shows that he was being untruthful It is not easy after all this
time to
reconstruct quite what went on in Jassiem's mind, but in
110
so far as he did dissemble, then the justification for it, as he viewed
matters, may be found in these clumsy words:
"Dink u dit is eerlik wat u gedoen het? ... Wel, as hulle eerlik is met my
dan ek is dit hulle plig om eers vir die Ahmadis te gaan
vra en dit is ook hoe
hulle glo. Het hulle ooit vir die Ahmadis gevra hoekom hulle vir my vra. Dit is
hulle plig om na die Ahmedis
te gaan, nie na my toe nie. Ek is nie 'n Ahmadi
nie."
In other words it is the old refrain: please stop troubling me to denounce
persons about whom I do not know enough to form a view,
and in the meantime
please stop calling me a non-Muslim. Overall, by no means a model of
truthfulness, nonetheless to be understood
if not excused as the behaviour of a
man subjected, as he saw it, to unfair and oppressive pressure.
The incident
in 1970 has also been summarized earlier in this judgment. The particular thrust
of the criticism relates to his failure
to
111
repudiate his publicly reported denunciation of the Ahmadis, and his
acceptance of the Imamship at Coovatool, which was then offered
to him. Jassiem
attempted to explain his attitude in cross-examination thus, "En hulle het
geeët en gedrink (a reference to
the convivialities at the Azaria Mosque
after the announcement of his changed attitude had been made), maar ek het maar
gevoel dat
ek maar net kan huis toe gaan." In reexamination he further explained
his failure to repeat his true belief by saying that if he
had, his congregation
would have been scattered again, that the MJC frightened people so much that he
would never again be able to
bury the departed decently, or perform marriages
for those who remained, and he would have lost the esteem which he had earned
among
his congregation over so many years.
All this is supposed to demonstrate Jassiem's self-interest and lack of
principle. Rather it reminds us of the words which posterity
112
attributed to Galileo, after his famous recantation, seventy and afraid,
before another earthly tribunal, "Eppur is muove." We do
not consider that these
events demonstrate Jassiem to be an untruthful witness either.
That said, it
must be added that he displayed distinct weaknesses as a witness. Even the
passing of the years has not wholly effaced
the pugnacity and quick reaction of
the one-time pugilist, leading him into unconsidered and possibly inaccurate
answers which he
was sometimes slow to retract. The other critical observations
of the trial Court already mentioned are borne out by the record.
Various
further criticisms of Jassiem were raised in argument but, making allowance for
his personality and age, we do not consider
that any of them have a weight
deserving of further discussion. Overall we do not find fault with the trial
Court's finding that
Jassiem was not dishonest.
Several times during his evidence Jassiem claimed that he had
115 it was
also common cause that the congregation present in the Wynberg
mosque when
Nazim used the words complained of were members of the
Western Cape Muslim
community, and that they viewed matters
differently. By way of an innuendo
Jassiem alleged in his particulars of
claim that Nazim's statement was intended to mean, and was understood
by the congregation to mean that Jassiem:
"is an Ahmadi as well as a sympathiser with Ahmadis and as such a non-Muslim,
a disbeliever, a kafir, an apostate and murtad, who
rejects the finality of the
prophethood of Muhammed, who, as such, is to be denied admittance to mosques and
Muslim burial grounds,
to whom marriage is prohibited by Muslim law, and with
whom Muslims should not associate."
In our judgment the evidence proves the innuendo. Counsel for
the
appellants did not contend otherwise.
Mention has already been made of the fact that at the time
relevant to
Jassiem's action there were some 260 000 orthodox Muslims
in the Western Cape. Accordingly the trial Court had to consider whether
116
"The fact that something like 98% of the South African population would not
care a fig whether Jassiem is a traitor to Islam or not..."
deprived Jassiem of a cause of action based on defamation. That inquiry,
as the learned judge correctly pointed out, raised the issue -
"whether it is correct to accept literally the allegation often made that for
defamation to occur it is insufficient that the esteem
of the object of the
defamatory appellation be lowered in the eyes of a section of the community: the
imputation in question must
tend to lower him in the estimation of 'ordinary
right-thinking persons generally'. (Burchell, page 95.)"
In considering this issue VAN DEN HEEVER J pointed out in
the course of her judgment that a man's reputation is not something which
"exists in a void". She proceeded to make the following perceptive
observations -
"It consists of the esteem in which he is held by 'society' or within 'the
community'. How the
117
community, society, is to be defined must in my view depend upon the facts
and the pleadings in each particular case. Sometimes geographical
borders of a
country may define what society or community is relevant in a particular case;
for example, where a member of Parliament
of a government within those
boundaries claims to be defamed as such. If a man's reputation within the
scientific community of which
he is a member, or within the financial community
within which he operates, or within the black community within which he lives,
is tarnished by an imputation within that community of conduct disapproved on
the whole by that community, the Court will use its
muscle to recompense him for
the loss... And by his pleadings a plaintiff makes it clear whether the loss for
which he claims reparation
is of reputation countrywide, or in a more limited
particular society ... I do not understand anything in the Appellate Division
decisions as barring such an approach, which is accepted in many other countries
and urged here as a matter of common sense and fairness.
Prosser,
TORTS,
page 743, Burchell,
DEFAMATION,
page 99, Street,
TORTS.
5th
Edition, page 288, Salmon & Heuston,
TORTS.
18th Edition, 134,
Amerasinghe,
DEFAMATION,
pages 21-23, Ranchod,
DEFAMATION,
page
156, Hahlo and Kahn,
THE UNION OF SOUTH AFRICA. THE DEVELOPMENT OF ITS LAW
AND CONSTITUTION,
page 546. The only qualification,
118
it seems to me, is that the particular society should not be one whose
reasonably uniform norms are contra bonos mores or anti-social."
Turning to the pleadings in the matter before her the trial judge
remarked:
"The innuendo pleaded here of necessity affects Jassiem's reputation within
the only community of relevance to the action in which
Jassiem sued as a Muslim
claiming to have been defamed as such within the Muslim community of the Cape.
Nazim himself testified that
that community keeps to itself to keep itself pure
and for that very reason rejects anything it regards as foreign to its allegedly
well-defined norms."
Finally VAN DEN HEEVER J expressed the opinion that there was no
sound
reason for concluding that "in a non-Islamic overall South African
context" the Court should regard the relevant norms of Muslim society as
anti-social or as contra bonos mores. Accordingly she resolved the issue
now under consideration in favour of Jassiem. She ruled that, despite the
fact that the Cape Muslim community represents but a tiny fraction of our
total national population, the words uttered by Nazim were defamatory of
119
Jassiem.
It appears to us, with respect, that the general approach
reflected in the reasoning of the Court below upon this legal issue in the
case
is both logically compelling and sound in principle. Despite the fact that our
courts have frequently reiterated the test of
"ordinary right-thinking persons
generally", we consider that the precise problem crisply raised by the peculiar
facts of the instant
case has not so far claimed the attention of this Court;
and that there is no decision of this Court which represents authority directly
contrary to the view expressed by the learned trial judge. The correctness of
that view was strenuously challenged by counsel for
the appellants in the Court
below. However, during the argument on appeal Mr Albertus candidly informed us
that, without making any
explicit concessions in regard thereto, he proposed not
to argue in this Court that on the issue in question VAN DEN HEEVER J had
wrongly stated the law.
120 For the reasons hereunder we consider that the conclusion at
which the
Court a quo arrived in deciding this issue in favour of Jassiem
was correct
in law.
In pondering whether the words complained of by the plaintiff
in the
well-known case of Sim v Stretch
[1936] 2 All ER 1237
(HL) were
in their
ordinary meaning capable of being defamatory, Lord Atkin
proposed in that
case (at 1240) the test:
"would the words tend to lower the plaintiff in the estimation of
right-thinking members of society generally?"
The words quoted above were, however, immediately prefaced by the
following cautionary remarks -
"The question is complicated by having to consider the person or class of
persons whose reaction is the (test of the wrongful character
of the words
used." (Emphasis supplied.)
It need hardly be said that what does or does not represent "the
121
estimation of right-thinking members of society generally" is
something
difficult enough to gauge even in a society which is more or less
homogeneous. Such homogeneity might perhaps have existed in the
United Kingdom
for a long time before the large-scale immigration which that country began to
experience shortly after the end of
the Second World War. However, where one has
a heterogeneous society such as is to be found in South Africa, and the
statement complained
of is alleged to be defamatory only in the eyes of a
particular segment of society, Lord Atkins test cannot sensibly be applied
unless
his cautionary remarks should be construed as meaning that, when dealing
with a particular segment of society, it is the reaction
of "right-thinking"
members of that segment of society which becomes the yardstick rather than that
of "right-thinking" members of
society generally. While constitutionally the
Republic is a single sovereign State, the composition of its peoples reflects a
rich
mosaic made up of a variety of races,
122 cultures, languages and
religions. The consequences of such a diversity, in the context of the present
discussion, have been vividly
described by Didcott J in Demmmers v Wyllie and
Others
1978 (4) SA 619
(D) at 629B-D:
"No single group has a monopoly of such a society's 'right-thinking' members,
and the 'mythical consensus' [of opinion] must encompass
them all. Subjectivity
inevitably intrudes whenever this is sought. A Judge would doubtless hesitate to
see himself as the epitome
of all 'right-thinking' persons, or to say so at any
rate. He is seldom likely, on the other hand, to attribute to the
'right-thinking'
a viewpoint sharply in conflict with his own. More often he
decides what he personally thinks is right, and then imputes it to the
paragons.
To others, however, the tenets thus decreed may seem merely the innate
prejudices of the group or class from which he has
sprung. That they indeed are
is the danger against which he must guard."
It is hardly a matter for surprise that the complex population
structure of our country has been mirrored in a number of South African
defamation cases in which the court has appeared to disregard the view
123
of "society in general" in favour of a narrower provincial, ethnic
or
religious view. In Naidu v Naidu
(1915) 36 NLR 43
, the plaintiff was
an
Indian, and a member of the Naidu caste, who had arranged the
marriage
of his daughter to the son of Raja Naidu. The words used by
the
defendant were:
"After all Raja Naidu got a Woda's daughter in marriage to his son."
At the trial in the magistrate's court evidence was led that in India the
Woda caste was several degrees lower than that of a Naidu; and that an
allegation that a Naidu's son had married a Woda's daughter would
degrade the Naidu. Against the magistrate's award of nominal damages
to the plaintiff the defendant appealed. The Natal Provincial Division
(Dove-Wilson JP and Broome J) dismissed the appeal with costs. In the
course of a brief judgment Dove-Wilson JP remarked (at 44):
"There is evidence that the words were calculated to do some damage to the
plaintiff, and although it
124
suggests that the damage in Natal might not be so great as it would have been
if the parties were living in India, still any defence
on that ground is met by
the very moderate amount which has been allowed."
In Naidu's case the plaintiff and the defendant were Indian; and
publication was made to an Indian. That situation may be contrasted
with
the state of affairs which confronted the court in Pillay v Ivins
[1938] LKCA 6
;
(1919)
40
NLR 137.
The defendant, a white man, owed money to the plaintiff,
an
Indian market agent in Pietermaritzburg. In settlement of his debt
the
defendant forwarded a cheque to the plaintiffs attorney, a white
person,
under cover of a letter which read -
"I was at your office on the 31st, but found same closed, so enclose the
amount, by cheque, for full payment of that coolie claim."
In an action for damages in the magistrate's court the plaintiff alleged
that
he was a member of a caste many degrees above that of a coolie, and that
the words "coolie claim" had been used maliciously, and with intent to
125
degrade. The defendant pleaded that he had written the letter without
any
intention of injuring the plaintiff; and he testified that he was
quite
unaware of caste distinctions. The plaintiffs action failed and he
appealed. The full court of the Provincial Division (Dove-Wilson
JP,
Hathorn and Tatham JJ) dismissed the plaintiff's appeal with costs.
In
the course of his judgment Dove-Wilson JP (at 139-140) made the
following observations:
"Now in the immigration laws down to 25 of 1891 the term used by the
legislature to designate the people who came here from India
under those laws
was the word 'coolie', and that was the universal appellation throughout Natal
for Indians. It became known to the
legislature that there were certain classes
of Indians, to whom in their own country it would be inapplicable, who objected
to the
word as derogatory, and in subsequent legislation the words 'Indian
immigrants' were substituted. But it had become the habit among
Europeans, and
these habits die slowly, to designate Indians as 'coolies' without any idea or
knowledge whatever that any insult
could thereby be conveyed, and it is not
surprising that there are many who in the same way do'so still; and indeed,
there is a number
of
126
Indians in Natal to whom the term would be properly applicable in their own
country, who cannot consequently object to it here. But
there are others who,
according to Indian ideas, would naturally resent the term being applied to
them, and the case might have been
very different had the defendant been one of
themselves and conversant with their customs and ideas. I do not defend the use
of the
term. It is just as easy to say Indian as coolie, which is descriptive of
only one, and that, the lowest class of Indian, and, consequently,
as it is
offensive to the other classes, it should be avoided. But it is perfectly clear
from the evidence of the plaintiff and of
his witnesses that it may, and is,
still used by many Europeans as a general term for Indians without any idea
whatever that it may,
if addressed to an Indian to whom it is not applicable,
give offence, and indeed, without any knowledge that there are Indians to
whom
it is not applicable, and consequently with no intention to insult."
Having noticed the approach of the Natal courts in a couple of
defamation
actions involving members of that province's Indian
community, with its
adherence to or at any rate recognition of differences
within India's social
caste system, we turn to the approach adopted in a
127
defamation action in the then province of Transvaal. The case is Brill v
Madeley
1937 TPD 106.
The defendant was the Nationalist Party candidate at a
Provincial Council election where the Labour Party had also put up a candidate.
The plaintiff was a member of Parliament and the leader of the South African
Labour Party. The defendant distributed among the voters
of Fordsburg an
electioneering circular. A judge in chambers held that the critical sentence in
the circular would convey to the
ordinary reasonable reader that a speech made
in Parliament by the plaintiff justified the inference that he advocated
marriage between
white girls and coloured men; that it was actionable falsely to
say of a public man in the Transvaal that he was an avowed advocate
of
miscegenation; and that an order restraining the defendant from distributing the
circular should be granted.
In an appeal to the full court its judgment was delivered by Tindall J with
the concurrence of Solomon and De Wet JJ. In the
128
course of his judgment Tindall J (at 110) said the following:
"I am of the opinion that, having regard to the feeling which has prevailed
among the public of the Transvaal ever since it was first
occupied by whites
many years ago, a man is exposed to hatred and contempt if it is said of him
that he advocates marriage between
European women and coloured men in South
Africa... In the passage in Matthaeus, de Crim, (47.4.1.2) quoted by DE VILLIERS
A.J.A.,
in G.A. Fichardt, Ltd v. The Friend Newspapers,Ltd (1916, A.D. at p. 13)
that writer says that words are defamatory when something
is imputed which is
disgraceful according to the usages of the country, provided that in order to
ascertain whether this is so, the
opinion of the better classes and of the saner
members of the community must be taken. If this test is applied, in my judgment,
the
imputation complained of in this case is defamatory. The Court is not
concerned with the question whether the general opinion today
on such marriage
is right or wrong. We must take public opinion as it exists in the Transvaal,
according to our knowledge of it gained
after a long residence in this
Province... In my view, a European who advocated such marriages would, in the
prevailing state of
opinion, be regarded by most Europeans in the Transvaal as
trying to destroy a safeguard which a large section of the population
regards as
fundamental for the preservation of the white race in this country,
129
and he would lose caste himself and would incur the hatred and contempt of
most white citizens."
The thrust of the full court's judgment in the case of Brill v Madeley
entailed a purely regional conspectus of the facts. The emphasis
throughout, as
the above quotation amply demonstrates, was exclusively upon the state of white
public opinion (whites alone then
having the vote in the Transvaal) within the
confines of a single province. Whether the deep-seated predisposition of the
majority
of white persons in the Transvaal would have been shared by the
majority of "the better classes" and of "the saner members" of the
white
communities living elsewhere in South Africa, was an inquiry upon which the full
court found it unnecessary to embark.
Lord Atkin's test has been widely applied in South African courts - see, for
example: Smith v Elmore
1938 TPD 18
at 21; Conroy v Stewart Printing Co Ltd
1946
AD 1015
at 1018; Hassen v Post
130 Newspapers (Pty)Ltd 1965(3) SA 562 (W) at
564; Botha v Marias
1974 (1) SA 44
(A) at 49; HRH King Zwelithini of Kwa-Zulu v
Mervis and Another
1978 (2) SA 521
(W) at 529. In the context of a criterion
of
defamation our courts have tended to equate "right-thinking" with
"reasonable" or "ordinary" or "average". We would agree, with respect,
with the suggestion made by J M Burchell, "The Criteria of Defamation"
(1974) 91 SAW 178
at 180, that -
"In this sense the term 'right-thinking' does not add anything to the test of
the ordinary reader."
If the requirement of "society generally" of Lord Atkin's test
were to be applied in every conceivable case of defamation it would have
the consequence that, in the case of a plaintiff belonging to a
particular
community representing only a fraction of the entire population of the
country, the views of such community would be disregarded in
circumstances in which the views of that community were all that
131
mattered. That, so we consider, is not the position in our law
of
defamation.
Earlier in this judgment the view has been expressed that
upon the issue now under consideration the reasoning of the learned judge
in the
Court below was sound in principle. It is true that there are certain dicta in
the judgments of our courts which may seem
to suggest that what we would call
"community views" are irrelevant as a criterion of what constitutes defamation;
and, in consequence,
that our law does not recognise what may conveniently be
termed "segmental defamation". It appears to us, however, that too much
has been
read into them, and that upon careful scrutiny these dicta do not represent real
authority for such propositions.
Most frequently cited in this connection are the following remarks of Solomon
JA in G A Fichardt Ltd v The Friend Newspapers Ltd
1916 AD 1
at 9-10:
132
"The argument raises the question whether words that in themselves are
perfectly innocent can be regarded as defamatory by reason
of the special
circumstances prevailing at the time and in the locality where they were
published.... For example it may very well
be that, though in certain parts of
South Africa it would injure a man in his business to say that he was a German,
this might not
be so in other parts. Would the words then be libellous in one
district and not in another? Moreover if words innocent in themselves
can be
treated as defamatory in certain places and at certain times where is the line
to be drawn? For example it might very well
be that in one part of the country,
where political feeling is running high, it might be injurious to a man in his
business to say
that he is a Nationalist, or again in another part that he is a
Unionist. Is it to be held that in the one district it would be defamatory
to
say of a man that he is a Nationalist or a Unionist but that it would not be
defamatory to make the same statement of him in another
district?"
However, we are of the opinion that the question with which we
are
concerned neither arose nor was considered in Fichardt's case. The
issue
before this Court was a very narrow one: Could the accusation that
the
plaintiff was a German company, standing alone and without any
133
special innuendo, be defamatory. The question was answered in
the
negative. That, and nothing more, was what was decided. This Court
was
not required to consider whether words, innocent on their face,
spoken of a
plaintiff belonging to a community localised in one corner of
South Africa
might not sustain a defamatory innuendo when uttered there,
despite the fact that the same words would be quite incapable of any
such
innuendo elsewhere in South Africa.
The case of Wallachs Ltd v Marsh
1928 TPD 531
decided that
an imputation against a school-teacher that he had made a political
speech
at a political meeting was not defamatory per se. In the course of
his
judgment Krause J said (at 536):
"It is not what one particular section of the community, which might have
very narrow ideas with regard to what is proper or improper
for certain persons
in society to do; the Court has to regard the estimation in which a man is held
in society generally; and, therefore,
although we have a vast difference of
opinion as to the correct conduct of school-teachers,
134
especially whether they ought or ought not to meddle in politics, that is
merely a sectional view and not one which is generally accepted."
(Emphasis
supplied.)
What the learned judge in the above passage described as a
"sectional
view" was not the view of a defined community (such as the
Cape
Muslim community within a broader South African context), but
rather
a section of the general public whose narrow views departed from
the
norm.
A further reference to "sectional views" is to be found in this
Court's judgment in Conroy v Nicol
1951 (1) SA 653
(A). Dealing with
the effect of words alleged to be defamatory Van den Heever JA said at
660H:
"So 'n bewering kan die kabinet wel in onmin by 'n sekere seksie van die
bevolking laat geraak, maar nie die hoogagting van regdenkende
persone in die
algemeen laat verbeur nie." (Emphasis supplied.)
Here loo, so it seems to us, the learned judge had in mind simply a
135
number of individuals in the populace whose notions were
considered
unreasonable. Again the court was not required to consider the
views of a defined community in order to gauge whether its views, seen
in
isolation, might fittingly serve as a criterion for defamation.
Against the
general terms in which the above dicta (and many more like them) are couched,
there must go into the scales the rationes
of the Natal cases, already
considered, dealing with the views of the Indian community in that province; and
the approach reflected
in the criteria applied in Brill v Madeley (supra).
Writers have pointed out that a rigid application of the
"society
generally" principle is in our country an unrealistic one.
Thirty-five years
ago Hahlo and Kahn, The Union of South Africa - The Development of its
Laws and Constitution delivered the following plea (at 546) -
"The South African population is composed of comparatively large groups of
persons having widely divergent cultural, educational,
social and economic
136
backgrounds. In many cases persons belonging to different racial groups hold
different views. Under these circumstances it is submitted
that it would be
preferable to adopt the American approach, according to which it is recognised
'that the plaintiff may suffer real
damage if he is lowered in the esteem of any
substantial and respectable group, even though it be a minority one, with ideas
that
are not necessarily reasonable [provided that] ... if the group who will
think the worse of the plaintiff is so small as to be negligible,
or one whose
standards are so clearly antisocial that the court may not properly consider
them, no defamation will be found'."
Ranchod, Foundations of the South African Law of Defamation, rejects
as artificial the "right-thinking" test (at 156) and proceeds to say:
"In a country like South Africa, with its varied social and economic
structure, it would seem to be more appropriate to test the meaning
the words
are capable of bearing in a particular group or community to which the parties
belong. The reasonable hearer or reader
in the circumstances may be a better
standard than that of a reasonable, right-thinking member of society."
In his work on defamation Burchell, The Law of Defamation in South
137
Africa, remarks (at 99):
"Reputation is a 'relational interest' - it is the opinion which others hold
of a person. Even if this opinion is not diminished among
persons generally but
only among a portion of society, it seems right that the plaintiff should have
his remedy... Melius de Villiers
defines reputation as 'that character for moral
or social worth to which [a person] is entitled among his fellow men'. In South
Africa,
with its diverse population with different ideologies and cultures, in
many instances the concept of a person's fellow men inevitably
assumes a
sectional meaning and there is a distinct need for the recognition of the views
of different groups."
Whether in a given situation a distinctive community group
which forms part of the total South-African population is such that when
a plaintiff is lowered in its esteem he must be adjudged to have suffered
damage, is a question of fact to be decided on the circumstances of each
case. It goes without saying that such jurisdiction is to be exercised
cautiously, and that appropriate line-drawing may prove difficult. It may
also require the concomitant evolution of defences peculiarly appropriate
138
to it and which would not necessarily be recognised as
defences where
the words complained of are defamatory in the eyes of society at large.
In the present case, however, the claim for community
recognition is, in
our view, a strong one. In the total fabric of South
African society the
Western Cape Muslim community is a long-
established, well-defined and
closely-knit social, cultural and religious
unit. Despite the fact that its
numbers are relatively small the evidence
in this case satisfies us, inasmuch as it is a substantial and
respectable
segment of our society, that when a member of the Western Cape Muslim
community is lowered in its esteem he suffers damage; and that he is in
law entitled to seek reparation by way of an action for damages for
defamation.
D. DID THE APPELLANTS DISCHARGE THE ONUS Of ESTABLISHING THE DEFENCE OF
QUALIFIED PRIVILEGE?
139
Having established that the words imputed to Nazim were uttered by him, and
were defamatory of Jassiem, the appellants' alternative
plea of qualified
privilege falls to be considered next. As pointed out previously, this plea is
founded on the proposition that
the publication of the defamation was not
unlawful because the offending words "were published and received by the
congregation in
the discharge of a moral or social duty and/or the furtherance
of a legitimate interest". Coupled with this was an allegation that
at the time
Nazim had a bona fide belief in the correctness of his utterances.
It is
common cause that the appellants were encumbered with a full onus in regard to
their defence of qualified privilege (Neethling
v Du Preez and Others 1994(1) SA
708(A) at 770H-I).
The learned trial judge appears to have decided the issue of qualified
privilege on the basis of what was referred to in argument
as the
140
"substantive approach". This approach was predicated on the need for the
appellants to prove, on the requisite balance of probabilities,
that in terms of
applicable Islamic law an Ahmadi sympathiser (of the kind Jassiem was claimed to
be) is not a Muslim and is not
accepted in a Muslim community nor permitted in a
mosque. This, it was held, they had failed to prove. It has already been pointed
out that as an alternative to their main plea denying use of the words
complained of the appellants did not plead that the words
were true and uttered
for the public benefit. The only alternative defence relied upon was that of
qualified privilege. Truth and
public benefit on the one hand, and qualified
privilege on the other, are disparate defences. The validity or otherwise of the
defence
of qualified privilege hinged solely upon the answer to the inquiry
whether Nazim's defamatory communication to the wedding guests
in the Wynberg
mosque was made in the discharge of a moral or social duty
141
and/or in the furtherance of a legitimate interest; and whether the
congregation had a reciprocal duty or interest to receive it.
To this inquiry
the "substantive approach" was irrelevant.
Accordingly it is necessary for this Court to consider afresh, in the light
of the proven facts, whether or not the elements of the
defence of qualified
privilege were established.
The defence of qualified privilege rebuts the inference of
unlawfulness that arises from the publication of defamatory matter.
Public policy is the foundation of the defence (Borgin v De Villiers
and
Another 1980(3) SA 556(A) at 571F-G). As pointed out by Burchell:
The Law of Defamation in South Africa, at 237/8:
"It is in the public interest that the communication of certain defamatory
statements, uttered on specific occasions, should not be
prevented or inhibited
by the threat of defamation proceedings."
Privilege attaches to the occasion on which the communication
142
was made (Adams v Ward
[1917] AC 309
(HL) at 348.) The appellants
contend
that the defamatory words were uttered by Nazim in the
discharge of a duty or
the furtherance of a legitimate interest to the
members of the congregation
present at the Wynberg mosque who had a
corresponding duty or interest to
receive them; hence the occasion, and
consequently the communication, was privileged. Our law recognises that
such an occasion may enjoy qualified privilege provided certain
prerequisites are satisfied. One such requirement is that the
communication must not be lacking in relevancy. As pointed out by
Watermeyer AJA in De Waal v Ziervogel
1938 AD 112
at 122:
"[A]n occasion which is privileged for a communication upon one subject is
not privileged for a communication upon another subject
not germane to the
occasion"
Moreover, the truth or otherwise of a defamatory statement has no
bearing on whether it was germane to the occasion or not (Borgin v De
143
Villiers and Another (supra) at 579A).
Watermeyer AJA went on to hold in De Waal v Ziervogel (at
122/3):
"Whether or not the occasion is privileged must be decided from the
circumstances of the case independently of the motives which moved
the defendant
to speak. In other words the question which the Court has to decide at this
stage is not was the defendant in fact
speaking from a sense of duty but did the
circumstances in the eyes of a reasonable man create a duty or an interest which
entitles
the defendant to speak. This does not mean that the state of mind or
actuating motive of the defendant is immaterial in the ultimate
result of the
case because it becomes very relevant in the next stage of the enquiry when the
question arises whether a privileged
occasion has been abused."
On page 124 of the judgment he reiterated that a defendant's state of
mind "was irrelevant on the question whether the occasion was
privileged".
The objective test propounded in De Waal v Ziervogel has been
consistently followed in this Court - see e.g. Benson v Robinson & Co
144
(Pty) Ltd and Another 1967(1) SA 420(A) at 426 D-F and Borgin v De
Villiers and Another (supra) at 577E-G where Corbett JA stated:
"The test is an objective one. The Court must judge the situation by the
standard of the ordinary reasonable man, having regard to
the relationship of
the parties and the surrounding circumstances. The question is did the
circumstances in the eyes of a reasonable
man create a duty or interest which
entitled the party sued to speak in the way in which he did?"
The principles outlined above are those which must guide us in
arriving at
a decision. The essential enquiry is whether a reasonable man
would have
considered, ex post facto and in the light of all the relevant
circumstances,
of which he must be taken to have been aware, that there
existed a duty on
the part of Nazim which entitled him to speak as he
did. We accordingly turn to a consideration of the facts that bear on
this
enquiry. To the extent that this involves a repetition of facts already
recounted, this is necessary to facilitate a proper understanding of the
judgment.
145
In May 1965 the MJC declared Jassiem to be an apostate. This was followed
almost immediately by the 1965 fatwa in which the MJC proclaimed,
inter alia,
that all Ahmadis were murtad and that no Ahmadis or Ahmadi sympathisers should
be allowed to enter Muslim mosques. The
fatwa has been of application ever
since. It could only have been intended to apply to acknowledged Ahmadis and
their sympathisers,
or persons who had properly been identified and declared as
such. The consequences of a declaration of apostasy are so severe that
the MJC
could not have countenanced the indiscriminate labelling of persons as Ahmadis
or sympathisers. In 1970 Jassiem was absolved
of apostasy and returned to the
fold of Islam. In 1971 he became the Imam of the Coovatool mosque, an office he
continued to hold
until late December 1985. During 1982 and 1983 he acted as
part-time Imam of the Parkwood mosque. Whatever discontent or rumours
there may
have
146
been concerning Jassiem's alleged sympathetic attitude towards Ahmadis,
nothing came out into the open until the beginning of 1984.
Until then Jassiem
appears (outwardly at any rate) to have been fully integrated into, and accepted
by, the Muslim community.
On his return, in January 1984, from a visit to
Mecca Jassiem was confronted by the Parkwood mosque committee with regard to his
association
with Erefaan. This eventually led to the letter from the secretary
of the committee dated 16 March 1984, the material parts of which
have been
quoted earlier in this judgment. Of significance is the fact that while
Jassiem's services as a part-time Imam were suspended
"until this matter is
cleared", he was not debarred from attending the mosque. The letter indicates
uncertainty in regard to Jassiem's
precise stance in relation to Ahmadis, and
recognises the need for investigation of the situation. In the meantime, in
February 1984,
Nazim had
147
overruled an objection to Jassiem being called as an expert witness in a
Muslim religious dispute, declaring him to be a Muslim.
The next event of any
significance was the letter from the committee of the Lentegeur mosque in
October 1985 in which Jassiem was
accused of associating with Ahmadis and
allowing them and their sympathisers to attend his mosque. The latter, it was
claimed, was
"a fact that cannot be disputed". However, no names, dates or
specific instances were cited. At about this time Jassiem attended
the funeral
of Mrs Albertyn at the St Athens Road mosque where a concerted effort was made
by a section of those present to eject
him from the mosque. This was the
occasion on which the agitators were silenced by Sheikh Soeker with the words
"Daar is nog nie
'n bestelling nie teenoor die Sheik nie van die Muslim Judicial
Council nie". In the result Jassiem was permitted to remain in the
mosque for
the service and Soeker even asked
148
him to say a prayer, which he did. What occurred suggests that at the time
there was no general consensus amongst Muslims about Jassiem's
status, and that
the mourners at the funeral were prepared, after being admonished by Sheikh
Soeker, to adopt a wait-and-see attitude
pending an investigation by the MJC -
an attitude seemingly in keeping with both Islamic principle and practice.
Then followed the meeting of the MJC on 13 November 1985 at which Sheikh
Gabier reported that he had received complaints about Ahmadis
and their
sympathisers attending the Coovatool mosque. We have already quoted the relevant
portion of the minutes of that meeting.
What needs to be emphasized is the
recital that "The Council was completely in the dark with regard to the stand
and attitude of
the Imam viz. Sheikh M.A. Jassiem". Sheikh Gabier was instructed
to write a letter to the mosque committee "to set up a meeting so
that this
issue
149
could be discussed", presumably to obtain clarification on the matter. The
nature of the MJC's response points to the conclusion that
the MJC, despite
possible concerns it might have had, did not intend to label Jassiem an Ahmadi
sympathiser without a proper investigation.
The letter was the first step to
that end. It is worthy of note that no suggestion was made that Jassiem should
be suspended as Imam
pending an enquiry.
One would have expected the
committee members of the Coovatool mosque to have been fully aware of events
taking place at their mosque.
If there were undoubted substance in the
complaints against Jassiem, confirmation of this fact should have been readily
forthcoming.
The committee's sharply-worded response lent no support to the
complaints, this notwithstanding its attitude, reflected in the last
sentence
(not previously quoted) of its reply, that "Needless to say the Coovatool
150
Islam Mosque Trust is as concerned about the Ahmadis issue as any of
the
other Mosques and ummat". Its letter, which suggested that the MJC
should
deal with Jassiem directly in relation to what was a religious issue,
amounted to a referral of Jassiem's position to the MJC for
consideration
and decision. It is common cause that the MJC construed it in
that light.
Despite his evasive evidence in this regard, the probabilities suggest
that
Nazim was aware of the committee's response and its implications. This
then was the position that pertained on 20 December 1985 when the
events at the Wynberg mosque took place.
Clause 7(a) of the MJC's constitution provides:
"All religious matters affecting the Muslim Community shall be referred to
the Supreme Council for consideration and decision."
In terms of clause 10 of the constitution the Fatwa Committee (of which
Nazim was the chairman), and which comprised the members of the
Supreme Council, was called upon, inter alia, to handle all matters
151
relating to Ahmadis.
The uncertainty (for such it was) and concern
regarding Jassiem's alleged Ahmadi sympathies was clearly a religious matter
affecting
the Muslim Community, and as such a matter on which the Supreme
Council was called upon to adjudicate. Alternatively, it raised an
Ahmadi issue
and therefore fell within the purview of the Fatwa Committee. As at 20 December
no proper consideration had been given
by either body to Jassiem's position, and
no decision taken or finality reached in regard thereto. The matter was the
subject of
a pending enquiry. There can be little doubt that Nazim was fully
alive to the situation that existed as at that date, and that he
knew that there
was an investigation under way that would ultimately determine Jassiem's fate.
Islamic faith, according to Ghazi,
requires certain steps to be taken before a
Muslim can be declared an apostate. That this should be
152
so is hardly surprising in view of the dire consequences that flow from
such a declaration. He explained the procedure to be followed in these
words:
"In order to excommunicate a person in order to declare that such person has
ceased to be a Muslim, it is necessary that his doubts
are to be removed, his
misunderstanding is to be removed and the true position, true Islamic point of
view is to be properly explained
to him. If after receiving explanation, if
after the removal of doubts, if after listening to the arguments and authorities
he still
insists that he holds the same view, then he will be considered to be a
kafir, a non-Muslim. In spite of their being explained to
him and in spite of
his association with the Muslims, a person is living in a Muslim society, a
person is co-existing with fellow
Muslims, day and night he is with them and he
hears them, he sees them, he witnesses them but there they are performing in a
certain
manner. They are offering five time prayer. They are having such and
such beliefs and in spite of that the true position is explained
to him and even
then he says that he does not believe, then he is unanimously considered to be
kafir."
It appears from Nazim's evidence that the accepted method of
dealing with suspected Ahmadis in the Western Cape at the relevant time
153
was somewhat more forthright and robust. This appears from the
following passage in his evidence when questioned by the trial judge:
"I am putting to you a hypothetical situation that there is the rumour, the
man comes to your mosque and you confront him and you
say, 'I believe that you
are an Ahmadi, the rumours are floating around that you are an Ahmadi' and he
answers you, as I have suggested,
what would you do with him? — I will ask
him if he is an Ahmadi. If he says no, then I will tell him that denounce such a
belief
because it is not accepted in Islam, it is the belief of kafir and if he
says that he does not and he regards that belief as being
Islamic, then I
declare him as a sympathiser of the Ahamdi.
In other words you would test him by requiring him to denounce Ahmadis?
— Yes.
Saying that you would not let him pray in your mosque? — That is
correct."
Whichever procedure is followed there would appear to be two essential
preconditions before a declaration of apostasy is justified - some form
of
enquiry and ultimately (the acid test) a refusal to denounce.
If, as was contended on behalf of the appellants, these
procedures are indeed integral to Islamic faith - as to which we express
154
no opinion - it would not be for us to comment on their reasonableness
or
fairness. Significant in this connection are the following observations
of
Lord Davey in General Assembly of Free Church of Scotland and
Others v Lord
Overtoun and Others
[1904] AC 515
(HL Sc) at 644-5):
"My Lords, I disclaim altogether any right in this or any other Civil Court
of this realm to discuss the truth or reasonableness of
any of the doctrines of
this or any other religious association, or to say whether any of them are or
are not based on a just interpretation
of the language of Scripture, or whether
the contradictions or antinomies between different statements of doctrine are or
are not
real or apparent only, or whether such contradictions do or do not
proceed only from an imperfect and finite conception of a perfect
and infinite
Being, or any similar question."
See too Lord Halsbury LC at 613.
One cannot deny the right to those who
are legitimately charged with the protection of the Muslim faith to seek to
safeguard what
they consider to be the fundamental and critical tenets of their
faith, and to excommunicate someone whose convictions and beliefs
are in
opposition
155
to, or not in conformity with, those principles. It would therefore be
inappropriate for us to measure by conventional juridical standards
the fairness
or justifiability of declaring murtad a person who persists in adopting a
neutral attitude towards Ahmadis, either because
of his lack of knowledge as to
what their beliefs are, or because he believes that the Quran enjoins that a
person who is to all
outward appearances a professing Muslim may not be debarred
from attendance at a mosque, and that the sincerity of such a person's
professed
faith is a matter between him and Allah. Turning more particularly to Jassiem's
own attitude, his neutrality was partly
due to lack of knowledge but
predominantly due to his belief in the last-mentioned proposition. Whether or
not a failure or refusal
by Jassiem, for those reasons, to denounce Ahmadis
would have justified branding him a "sympathiser" is a question which we are not
called upon to decide in the light of our conclusions on other aspects of
156
the case, and in the absence of any invocation by the appellants of the
defence of truth and public benefit. However, we may say that
it is far from
clear to us that it would have justified so branding him.
Suffice it to say
that it is common cause that the procedural requirements of Islamic faith in
dealing with a person suspected of
being an Ahmadi or an Ahmadi sympathiser had
not been followed in respect of Jassiem prior to 20 December 1985. Jassiem had
not yet
been requested by either Nazim or the MJC to clarify his stand and
attitude in relation to the rumours circulating and the complaints
made against
him. Nor had he been asked to denounce Ahmadis. Nazim's false evidence was no
doubt designed to deal with this failure
- by untruthfully putting forward the
case that he had in effect "tested" Jassiem and been met by a refusal to
denounce Ahmadis.
In this respect we disregard the events that occurred before
Jassiem was declared an apostate in 1965, as they
157
were purged by Jassiem's return to Islam in 1970 and subsequent events. They
are therefore not relevant to the issue of privilege.
While rumours may have abounded that Jassiem was an Ahmadi sympathiser (as
appears, inter alia, from the evidence of Peck, Abrahams
and Abdullah), his
status as such had not been positively established at the time of the wedding.
Given Jassiem's essentially neutral
stance, the matter was one on which opinions
could conceivably have differed. There was an enquiry pending into Jassiem's
position.
The recognised procedures that needed to be followed before a Muslim
can be declared an apostate had not yet taken place. Amongst
a responsible
section of the Muslim community there seems to have been the perception that no
action could or should be taken against
Jassiem until the MJC had finally
pronounced upon the matter. Those taking up that attitude recognised Jassiem's
right to attend
a mosque until then. In this respect it is worthy
158
of note that, on the proved facts, the members of the
congregation present at the Wynberg mosque had displayed no hostility towards
Jassiem, nor raised any objection to his presence there, prior to the entrance
of Nazim and the events that followed.
All this being so, a reasonable man, properly apprised of the
antecedent
history and the relevant surrounding circumstances, in particular the fact of an
impending, unresolved enquiry and noncompliance
with the essential prerequisites
for a declaration of apostasy, would not have considered it his duty to speak as
Nazim did. The
time was wholly inappropriate for an ex parte statement of the
kind made by Nazim. His accusation was premature and improper, and
not germane
to the occasion. Speaking colloquially, Nazim jumped the gun.
In terms of the principles enunciated above it is irrelevant that Nazim bona
fide believed Jassiem to be an Ahmadi sympathiser, or
that
159
he may subjectively have considered that there was a duty upon him to speak
when he did. The communication was therefore not privileged.
Mr Albertus
conceded in argument that Nazim would not have been entitled to brand Jassiem an
apostate at a similar gathering immediately
after receipt by the MJC of the
letter from the Coovatool mosque committee. If such occasion would not have been
privileged, neither
would the later one in the Wynberg mosque have been, for
nothing of any consequence had occurred in the interim to bring about any
change
between the one situation and the other.
The position may well have been different (we express no definite view in
regard thereto) had finality been reached by the MJC on
Jassiem's position after
an enquiry and Nazim had used the occasion of the wedding to announce the result
of its findings; or if
the defamatory statement had been made by Nazim not to
the wedding guests but to the
160
Supreme Council or Fatwa Committee of the MJC in the course of investigatory
proceedings; or possibly even if Nazim had converted
the occasion at the Wynberg
mosque into an enquiry into Jassiem's convictions and beliefs concerning
Ahmadis, and given him an opportunity
to denounce them, as he falsely suggested
in evidence had been the case.
Nazim's false evidence at the trial in an
apparent attempt to bring his conduct in line with Islamic procedures strongly
suggests
that he appreciated ex post facto the wrongfulness of his behaviour,
and that he resorted to such lengths in the hope of avoiding
liability for his
actions. That he was alive to the need for a proper enquiry is evident from his
attitude towards Abdullah, against
whom he claimed he could not level an
accusation as "we have not gone into his position as such yet". The implication
that Jassiem's
position, by contrast, had already
161
been gone into, was clearly untrue. An enquiry had been embarked upon but no
decision had yet been reached. In the circumstances,
if the occasion was
inappropriate to label Abdullah a sympathiser, it was equally inappropriate to
brand Jassiem one.
Mr Albertus contended that if, objectively viewed, there was no duty upon
Nazim to speak, he had spoken pursuant to a legitimate interest.
Nazim's alleged
interest derives from precisely the same factual matrix as his professed duty.
In the present instance, if one is
excluded, so is the other.
In the result the appellants failed to discharge the onus resting on them of
proving that the defamatory words were uttered on a privileged
occasion.
THE MJC WAS ALSO LIABLE FOR THE DEFEMATON?
162
The basis of Jassiem's second claim against the MJC is his
allegation that
in uttering the aforesaid defamatory words at the wedding
on 20 December
1985, Nazim was "acting on behalf of Defendant and
with its authority and
approval". This was denied by the MJC in its plea
and the matter was not
dealt with specifically in the replication.
Particulars for purposes of trial relating to the alleged authority and
approval were requested by the MJC but were refused in these terms:
"The particulars requested are peculiarly within the knowledge of Defendant
and constitute matters for evidence and/or are not strictly
necessary for the
purposes referred to in Rule 21(4)."
The onus was on Jassiem to prove such authorisation and
approval on a balance of probabilities. In our estimation he failed to
discharge that onus for the reasons set out hereunder.
163
In his evidence in chief Nazim said:
(a)
that he did not know
beforehand that Jassiem had been invited or that he would attend the wedding
ceremony;
(b)
that the MJC was unaware of the
fact that he was going to officiate at the wedding;
(c)
that the wedding had never been discussed at any meeting of the MJC;
and
(d)
that the MJC neither authorised him to
say anything at
the wedding nor approved of anything
said by him on that occasion. His
evidence hereon was as follows:
"Did the Muslim Judicial Council authorise you to say anything at the
wedding? — No, not at all.
Did the Muslim Judicial Council approve of anything that you said at
164
that wedding? Did they ever ... did the Muslim Judicial Council ever get
together and authorise you to do something or approve of
anything that you had
done in relation [to] that wedding? ... No."
None of this was challenged or even dealt with in cross-examination and no
evidence was given by or on behalf of Jassiem that there
had ever been such
authorisation or approval by the MJC as alleged.
In finding that the MJC was liable to Jassiem for the
defamatory words uttered by Nazim at the wedding, the learned trial
judge
said the following:
"Two further factual questions have to be answered. Having found that Nazim
said the words alleged at the Gydien-Abrahams wedding,
was he doing so acting as
authorised agent for or representative of the MJC? Did the MJC incite the
trustees of the Coovatool Mosque
to dismiss
165
Jassiem?...
All the probabilities indicate that when Nazim attacked
Jassiem at the wedding he did so not only in his personal capacity, but in
pursuance of his duty as laid down in the constitution of the MJC to give
guidance. That the MJC did not dictate to him exactly what
form that guidance or
'dealing with' a person he regarded as requiring to be dealt with was to take
is, in my view, immaterial.
When challenging Jassiem as an Ahmadi sympathiser
at the wedding Nazim did so in pursuance of the policy decided upon by the MJC
as
expected of him by that body and not merely as an individual, just as he in
his capacity as a leader within the self-appointed leader
body, had acted in
other instances on its behalf without any formal authorisation being minuted as
far as we know from discovered
documents.
That Nazim testified that he was not authorised to say anything at the
wedding is probably correct. That it was not challenged in
cross-examination is
therefore in my view irrelevant in the circumstances of this case. It was as,
INTER ALIA, President of the MJC,
indeed part of his function to deal with
Ahmadis. The method of dealing was left to him because according to him (and
Advocate Albertus's
argument) a simple expedient is adopted
166
in such cases which avoids the trauma of religious trials. The MJC did not
authorise him to insult or defame Jassiem. That, too, was
unnecessary. Nazim
merely adopted the course approved by the MJC as appropriate in similar matters:
of labelling as an Ahmadi sympathiser
and ejecting from the mosque a person not
himself willing when called upon to do so, to take a similar stand against
either the Ahmadis
or anyone suspected of being one."
With respect to the learned trial judge we do not agree with her
reasoning.
Nazim could not have uttered the said words "in pursuance of his
duty as laid down in the constitution of the MJC to give guidance".
His duty
clearly was to abide by the decision of the MJC, to which he was a party,
reached at the meeting on 13 November 1985, to
conduct an investigation into
Jassiem's attitude in relation to the Ahmadis. On 20 December 1985 that
investigation was still pending.
Neither was the method of dealing with that
question left to him. The method of dealing
167
therewith by way of a formal investigation had already been determined at the
MJC's meeting aforesaid. The investigation had been
set in motion on 26 November
1985 by the writing of the letter to the Coovatool mosque committee, and was
still incomplete at the
time of the wedding. Nazim did not attend the wedding in
his capacity as president of the MJC or as an authorised representative
of that
Council, but in his capacity as the Imam who was to officiate there at the
invitation of the bride's father. It was clearly
Nazim's own decision (probably
made on the spur of the moment) to act as he did.
A careful appraisal of all
the evidence leads us to the conclusion that there was no room for a finding
that in acting as he did Nazim
had the authority or approval, express or
implied, of the MJC.
The MJC's investigation was never completed. It was
168
overtaken by events. It was only after the wedding and during the annual
recess of the MJC, that Jassiem was subjected to the "acid
test" by the
Coovatool committee. When the MJC met again after its recess the need for any
further investigation had already fallen
away.
By reason of the aforesaid
onus of proof imposed upon Jassiem by the pleadings the learned judge's correct
finding that the MJC did
not authorise Nazim to do what he did (and by clear
implication also did not approve what he had done) should have been, and in fact
is, fatal to Jassiem's second claim against the MJC. OUTCOME
For the
aforegoing reasons the appeal of Nazim fails, and the appeal of the MJC
succeeds.
169
COSTS
The parties have reached agreement on what an appropriate order as to costs
should be. The terms of such agreement are embodied in
this Court's order.
The following orders are made:
(a)
The appeal of the first
appellant (Nazim) is dismissed with costs, such costs to include the costs of
two counsel.
(b)
The appeal of the second
appellant (the Muslim Judicial Council) is upheld with costs, such costs to
include the costs of two counsel.
(c)
The
order of the Court a quo of 23 February 1990 is altered to read as
follows:
1.
Jassiem's claims against the
Muslim Judicial Council based on wrongful dismissal and defamation are
dismissed.
2.
The defamation action against
Nazim succeeds
170
and he is ordered to pay R25 000 to Jassiem as
damages.
(d) The costs order of the Court a quo of 3 June 1991 is
amended in the
following respects:
1.
Nazim will pay 85% of Jassiem's costs of which eight days shall be on
the attorney and client scale, all such costs to include the
costs of two
counsel.
2.
Jassiem will pay the Muslim
Judicial Council's costs, such costs to include the costs of two
counsel.
(e) Save as aforesaid the costs order of 3 June 1991
is
confirmed.
HOEXTER JA SMALBERGER JA
STEYN JA
171
MARAIS JA SCHUTZ JA