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1. Summary of the appeal judgment and background

The Appellate Division of the Supreme Court of South Africa gave its judgment, on September 26, 1995, upholding the ruling of the lower Trial Court against Sheikh Nazim Mohamed, President of the Muslim Judicial Council of Cape Town (MJC), that he had defamed one Sheikh Jassiem by calling him an “Ahmadi sympathiser” in front of a Muslim gathering in a mosque. The Appeal Court was giving its judgment on the appeal by Sheikh Nazim and the MJC against the finding of the Trial Court, of February 1990, that both Nazim and the MJC had committed defamation. While rejecting Nazim’s appeal, the Court granted the MJC’s appeal, ruling that it had not been proved that in uttering the defamatory words Nazim had acted with the authority and approval of the MJC.

Background

This Appeal Judgment brings to an end litigation which began ten years before. Sheikh Jassiem was the Sunni imam of a mosque who regarded Ahmadis as Muslims, and refused to denounce them as kafir (unbelievers) and murtadd (apostates), and debar them from his mosque, despite intense pressure being put upon him by the MJC. Sheikh Nazim publicly called Jassiem an “Ahmadi sympathiser” at a wedding congregation in a mosque in December 1985, as a result of which Jassiem filed a defamation suit against both Nazim and the MJC.

The words “Ahmadi sympathiser” were not in themselves defamatory, but being uttered before the Muslim congregation they meant, to those present, that Jassiem himself was a disbeliever and apostate “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” (p. 115 of Appeal Court Judgment). Jassiem claimed that according to Islam he was perfectly right in considering Ahmadis to be Muslims, and therefore it was defamatory to brand him as unbeliever and apostate.

This led to a lengthy trial during 1987, finishing in February 1988. As noted above, the judgment of the Trial Court, delivered in February 1990, found that both defendants had committed defamation.

MJC’s attitude to “sympathisers” of Ahmadis

The Appeal Judgment notes that being declared an “Ahmadi sympathiser” has “dire civil and social consequences” for that person (p. 11). As to what is an “Ahmadi sympathiser”, the Judgment states:

“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 Lahoris 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.” (p. 16)

Due to the MJC’s stand, such a declaration against someone has “traumatic consequences”. The Judgment notes some examples:

“If an orthodox Muslim had been in the habit of employing the services of a Lahore [Ahmadi] tailor he would have to stop doing so and even refrain from meeting him on a social level.”

Thus the intolerance of the MJC is clear from the Appeal Judgment. The MJC condemns as “Ahmadi sympathiser” and as apostate any Muslim whose only fault is that he does not make a statement denouncing Ahmadis as kafir. It then orders the complete ostracism of that Muslim by the whole Muslim community. Regarding the behaviour of the MJC, the Judgment also records the following:

“Several times during his evidence Jassiem claimed that he had not produced further witnesses because people were afraid to speak on his behalf. Having regard to the MJC’s boasted insistence on guilt by association, . . . the MJC’s insistence on obedience, and many other points in the record, this claim seems to be well-founded. And it seems to be confirmed, not rebutted, by the two witnesses that Nazim did succeed in calling.” (pages 112–113)

Issue of ‘Who is a Muslim’

In the original Trial Court the question had been extensively discussed as to whether Jassiem was a Muslim or had become an apostate by refusing to denounce Ahmadis as kafir, and the related questions as to whether Hazrat Mirza Ghulam Ahmad and the Lahore Ahmadis were Muslims or not. Maulana Hafiz Sher Muhammad (may Allah have mercy on him) had testified on behalf of Jassiem, while a Professor Ghazi from Islamabad, Pakistan, had testified on behalf of the opposite side. The Appeal Judgment notes:

“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 he was a true Muslim, whilst Ghazi was adamant that Mirza was indeed an apostate. . . . 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.” (pages 49–50)

The original Trial Court, and the Appeal Court, did not consider it necessary to Jassiem’s case to decide whether Hazrat Mirza or Lahore Ahmadis are or are not Muslims, or whether Jassiem became an apostate by his believing that Ahmadis are Muslims. The Trial Court reduced this to determining the question: Was Jassiem’s position among Muslims such that the esteem in which they held him would be diminished by his being called an “Ahmadi sympathiser”? The Trial Court determined the answer as “yes”, and the Appeal Court upheld this ruling (pages 62–63).

Questions considered on appeal

The Appeal Judgment considers five questions all of which the Trial Court had answered in the affirmative in its earlier judgment:

1. What was entailed in proof by Jassiem that he was a Muslim, and did he prove that which had to be proved? If so –
2. Did Jassiem prove that the words complained of were uttered? If so –
3. Were the words defamatory of Jassiem despite the fact that they lowered his esteem in the eyes only of a particular community (i.e. Muslims), and not in the eyes of the general public? If so –
4. Did Nazim and the MJC establish their defence of qualified privilege? (This arose because they claimed that their offensive words against Jassiem were uttered “in the discharge of a moral or social duty and/or the furtherance of a legitimate interest”, and hence were not defamatory.) If not –
5. Did Jassiem discharge the onus of proving that the MJC was also liable for the defamation?

(See pages 53–54)

On the first four questions, the Appeal Judgment upholds the ruling of the Trial Court.

It is only on the fifth question that the Appeal Court has overturned the ruling of the Trial Court. Jassiem had claimed against the MJC that Nazim, in uttering the defamatory words, was acting on behalf of, and with the authority of, the MJC. The Judgment argues that the MJC had decided in November 1985 to conduct an investigation into Jassiem’s attitude in relation to Ahmadis, and by the date of the wedding in December that investigation was still pending. Therefore at the time when Nazim uttered the defamatory words, the MJC had not authorised him to do so. Moreover, Nazim did not attend the wedding in his capacity as president of the MJC, but in his capacity as the Imam who was to officiate there at the invitation of the bride’s father. Therefore the Appeal Court approved the MJC’s appeal against the Trial Court’s judgment and ruled 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” (p. 167).

Conclusion

To conclude, the Judgment on Appeal has, therefore, upheld the Trial Court’s verdict that to call Sheikh Jassiem an “Ahmadi sympathiser” in the presence of a Muslim gathering, which means branding him in their eyes as an apostate who must be ostracised, is defamatory because it diminishes the esteem in which he is held by them. All those decent and respectable Muslims everywhere who, like Sheikh Jassiem, refuse to denounce Ahmadis as kafir, should be heartened by this judgment from South Africa because the attempts by anti-Ahmadiyya ulama to condemn such Muslims as themselves kafir and apostate have been ruled as defamatory.