The planned storage facility at the Mowbray Cemetery has been halted by a high court order.
Image: Independent Newspapers Archive
Undertakers in Cape Town's Muslim community express their frustration following a High Court ruling that prevents the construction of a much-needed mortuary facility at Mowbray Cemetery.
The order, which was issued by Judge Gayaat Da Silva Salie, sitting at the Western Cape High Court, followed an application from Dr Tolgah Bassier, who challenged the conduct of the Muslim Cemetery Board that administered the cemetery.
In her judgment, Judge Da Silva Salie issued an order restraining the board from constructing, completing, operating, or maintaining any mortuary facility on the cemetery property.
In a letter by the undertakers, the group said this order was disappointing and concerning, as this development was a significant loss of service infrastructure for the Muslim community and the burial sector.
The group consists of: Haroon Peters, Ameen Schroeder, Ebrahim Solomon, Yagyah Canfield, Faried Khan, Moulana Ebrahim Lee, Naeem Dadabhay, Redewaan Abrahams, Abdullah Salie, Yaseen George, Shamiel Herman, Mogamat Yusuf Evans, Imam Tasleem Abrahams, Igsaan Isaacs, and Muawiya Sofejan.
“As undertakers who work within the burial space on a daily basis, we find it deeply troubling that persons who are not involved in burial work, who are not undertakers, and who are not involved in the operational realities of death administration and burial logistics, have involved themselves in a matter of this nature to the extent that a facility intended to serve the community has been stopped.
“Burial work is practical, time-sensitive, administrative, and religiously regulated work, and decisions relating to burial infrastructure should be informed by those who are actively involved in burial services and who understand the realities faced on the ground,” the group said.
The group wanted to make the Muslim community aware that the mortuary storage was not a luxury but an essential part of the burial chain and was only meant to store the bodies of the deceased and not do post-mortems. It said this was a much-needed facility.
At present, the group said the community was heavily dependent on mortuaries that are not owned by the Muslim community. Daily, undertakers are compelled to make use of private mortuaries, many of which are owned by non-Muslims, and storage is paid for daily. This places continuous financial strain on burial services and ultimately on the community.
“The inability of the Muslim community to develop and own its own mortuary refrigeration storage facility is a serious setback and raises a very important question. Are we, as a Muslim community, always to remain dependent on others for critical burial infrastructure, or will we be allowed to develop our own facilities that serve our religious and community needs?”
The undertakers further wanted to dispel the widespread misconception that the facility would be used for ordinary janazah processes.
“In most cases, burials take place without the need for storage. However, undertakers are frequently faced with circumstances where storage becomes absolutely critical. These include cases where the deceased must be transported to other cities, cases where the deceased are received from other cities or from overseas, cases where documentation from Home Affairs is delayed and bodies cannot be released immediately for burial, cases where post-mortems are conducted and there are administrative delays, and cases where hospitals release human remains or limbs which must be respectfully buried after the necessary arrangements are made,” the group said.
It further stated that in all of these cases, storage becomes a critical part of the preparation chain leading to burial. Without storage facilities, they said, undertakers faced severe logistical and administrative challenges that ultimately affected the dignity, cost, and efficiency of burial services.
The undertakers said the halting of this facility had set burial services back in terms of infrastructure development and long-term planning.
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,” Judge Da Silva Salie noted.
She further added that any deviation from, or expansion beyond, the defined purpose of burial is inconsistent with that custodial role.