The Western Cape High Court issued a ruling that protects the Mowbray Muslim Cemetery from a mortuary construction on the premises.
Image: File
The Western Cape High Court has recently issued a final interdict, stopping further plans to build a mortuary at the historic Mowbray Muslim Cemetery in Cape Town.
Judge Gayaat Da Silva Salie ruled that the land is strictly reserved for burial purposes. She issued an order restraining the Muslim Cemetery Board from constructing, completing, operating, or maintaining any mortuary facility on the cemetery property.
The order followed an application by Dr Tolgah Bassier, who challenged the conduct of the Board, which administers the cemetery. Judge Da Silva Salie noted that this is a site of longstanding religious, historical, and communal significance.
At its core lies the question of whether the construction of a mortuary facility on the property is permissible within the confines of its governing instruments, most notably the title deed, which restricts its use as a burial place, she said.
The founding instrument regulating the cemetery records a restriction that the cemetery “shall be used solely as a burial place for Muslims". The cemetery was acquired in 1886 specifically to provide a dedicated burial ground for members of the Muslim faith.
The cemetery has historically been administered as a communal religious institution, associated with the burial of members of the Muslim community in accordance with Islamic rites, including the ritual washing of the deceased (ghusl) and burial in a burial shroud known as “kafan”. The property bears the characteristics of an endowment (waqf) and is dedicated to a defined religious purpose.
“The characterisation of the property as a waqf carries with it important legal consequences. Those who administer the cemetery do so not as owners, but as custodians or mutawallis (trustees), entrusted with preserving the property and ensuring that it is applied strictly in accordance with the purpose for which it was dedicated,” the judge noted.
Judge Da Silva Salie added that any deviation from, or expansion beyond, the defined purpose of burial is inconsistent with that custodial role.
The Board relied on an amended Constitution adopted in 2020 and argued that the mortuary is a logistical support measure for burial and not a change of purpose. The mortuary is an infrastructure improvement for which approval is vested in the Board, it told the court. The Board further argued that the mortuary constitutes a facility ancillary or complementary to burial and that it serves the needs of the Muslim community in facilitating dignified burial practices.
Judge Da Silva Salie did not agree. “I find this contention problematic. Whilst certain preparatory acts may be closely connected to burial, the concept of what is ‘ancillary’ cannot be extended without limit.”
She said the difficulty lies in identifying a principled boundary. “On the Board’s approach, there would be little to prevent the inclusion of services such as pathology-related processes, hospital-linked functions, or the production and supply of burial-related materials, all on the basis that they are connected, in some attenuated way, to burial".
The language of the title deed reflects a conception of the cemetery as a dedicated and tranquil space in which the deceased are laid to rest with minimal disturbance, she said. “To accept the respondent’s construction would permit a gradual expansion of the defined purpose of the property under the guise of ancillary use".
Bassier, meanwhile, also challenged what he deemed prolonged governance failures on the part of the Board. This included that no annual general meetings had been held for about 15 years, excluding the broader Muslim community in a say on how the cemetery should run.
The Board has been directed by the court to reopen membership registration to the wider Muslim community, and a special general meeting must be convened within 60 days to elect a new governing body. The newly elected body shall determine the future of the existing structure, provided that any use is consistent with the purpose of the cemetery as a burial place, the judge ordered.
zelda.venter@inl.co.za