The Mowbray MuslIm Cemetery.
Image: Ian Landsberg/Independent Media
The Western Cape High Court has ruled to stop the construction of a mortuary at Mowbray Cemetery, siding with Dr Tolgah Bassier against the Muslim Cemetery Board's plans.
Judge Gayaat Da Silva Salie ruled in favour of Bassier, who challenged the Muslim Cemetery Board’s plan, arguing that the site's title deed strictly stipulated the land be used solely as a burial place.
The ruling restrains the board from constructing, operating, or maintaining any mortuary infrastructure on the property.
Established in 1886, the Mowbray Cemetery is one of the oldest active Muslim burial sites in South Africa. The legal battle centres on the interpretation of waqf (endowment) and whether modern ancillary services, like a morgue, violate the original religious and legal mandate of the land.
Judge Da Silva Salie noted that this was a site of longstanding religious, historical, and communal significance. Bassier reiterated that the title deed of the cemetery stated the land was to be "solely used as a burial place" for Muslims.
“Those Muslims who drafted this clause have since passed on and cannot speak for themselves, but this was their simple stipulation. A mortuary on this property would clearly violate that stipulation,” Bassier said.
He added that the Mowbray Maqbara was a landmark site, and allowing a morgue could signal a "false narrative" regarding the Islamic tradition of swift burial.
Undertakers serving the Muslim community of Cape Town have expressed their displeasure at the ruling. In a letter, the group described the order as a significant loss of infrastructure, arguing that mortuary storage was an essential part of the burial chain and was intended for storage only, not post-mortems.
However, Bassier questioned the necessity: “The basis of my application was that this mortuary had no demonstrable Islamic need. If the undertakers truly believed these reasons, they could have presented them, but they did not."
He further alleged the Cemetery Board was "unlawfully constituted" and raised concerns regarding maintenance costs, security, and the violation of the wishes of those who originally dedicated the land.
On Tuesday evening, the chairman of the Moslem Cemetery Board, Faizal Sayed, and advocate Shameemah Dollie Salie held a live briefing.
Sayed confirmed they accept the ruling regarding the technical restriction in the title deed but maintained they had interpreted "burial ground" to include necessary services.
Sayed emphasised that the project was intended to serve the community and stated they intended to find a way to make the facility work, whether at that location or another.
Bassier has since pledged to financially assist with a morgue on a different site - provided it does not contravene contractual obligations - and called for a special general meeting between all parties.
Judge Da Silva Salie noted that the property beared the characteristics of an endowment (waqf).
“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,” she said, adding that any deviation was inconsistent with that custodial role.