Mosque row ends up in appeal court

By Time of article published Jun 25, 2012

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ZELDA VENTER

High Court Reporter

THE PLIGHT of the Muslim community living in eMalahleni trying to erect a mosque in the middle of a residential suburb will be taken up by the Appeal Court in Bloemfontein soon.

Lawyers for Human Rights (LHR) will then ask the court to enter the fray as a friend of the court.

In December, the Pretoria High Court declared the sale of a portion of land, previously a park, by the local municipality to the Witbank Muslim Jamaat, invalid. The Muslim community bought the land in order to erect a mosque there.

But the Propark Association – a group who campaigned for the park to remain – took this decision on review to the High Court. They argued that while they were not against a mosque, they wanted the park to be preserved.

Judge Ronel Tolmay declared the sale invalid on technical grounds.

She made it clear that the issue before her was not whether the Muslim community was entitled to erect the mosque or not, but rather whether the municipality had followed the law when it sold the land.

The property was valued at R570 000 and the bid by the Witbank Muslim Jamaat was the highest, at about R1.7 million.

It was awarded to the Muslim group and the property was rezoned from “public open space” to “institutional”.

Propark at the time told the court that the municipality had to follow certain steps before it could sell council land, which it did not do.

The judge agreed and declared the sale null and void.

But the municipality and the Muslim community are now set on appealing this ruling in the highest court of appeal.

Lawyers for Human Rights national director Jacob van Garderen applied to the appeal court for permission to enter this battle as it had an interest in the right to religious freedom and the right of communities to practise their religion.

In a statement to the appeal court which was filed on Friday, Van Garderen made it clear that LHR did not want to enter into the debate as to whether the sale was lawful or not.

However, the court should have taken the right of religious groups to practise their religion, as enshrined in the Bill of Rights, into consideration when it heard the matter, he said.

Given that what was at issue was the sale of the land to build a mosque, rather than for commercial purposes, these rights ought to have been taken into consideration by the court, he said.

It appeared that there was a serious need for a mosque in this area and the court had never considered this, he argued.

LHR did not endorse a particular religion, he said, but supported the view that all religions need to be given protection.

Van Garderen will also ask the court permission to place further evidence before it as to how big the Muslim community in eMalahleni is and the lack of facilities for this community.

He also intended to place before court evidence regarding the many other places of worship in this town, particularly churches.

Van Garderen said there were about 1 900 Muslim worshippers in eMalahleni, but only two formal mosques. The one was in the former Indian group area known as Pine Ridge, and could accommodate only 450 people.

The second was a small house which had been converted into a prayer facility in the old Asiatic Bazaar area, which can accommodate only 100 people.

Each of these is some distance away from the proposed mosque.

But there are about 30 Christian churches in the eMalahleni area.

No date has yet been set for the appeal court hearing.

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