A media report claiming that Muslims might be prevented from gaining access to karamats on Oudekraal if an application in the Bloemfontein Court of appeals succeeds, was unlikely to materialize. According to Mahmood Limbada of the Cape Mazaar Society such a claim was more likely sensationalist reporting, since thus far Muslim sensitivities related to the graves of three saints and 53 slaves on the slopes of the Twelve Apostles had been respected.

Cape Argus reported last week that if the Supreme Court of Appeal confirms that there were no development rights at Oudekraal, one of the ironic consequences could be the blocking of access for the Muslim community to some of the most important shrines, or kramats, on the property. This was argued by lawyers representing the owner of the property, Oudekraal Estates, in the case which is being keenly watched for a decision that could make international legal history.

This is because it is being asked to overturn an earlier court ruling that a decision made as long ago as 1957 is invalid. The company - represented by director Kasper "Kassie" Wiehahn - is seeking to overturn the ruling that set aside approval for township development rights on the 44ha "Portion 7" of Oudekraal Farm, granted by the then Administrator of the Cape. The respondents are the City of Cape Town, SA Heritage Resources Agency (Sahra) and SA National Parks.

"We are all holding our breath for the outcome from the Court of Appeals," Limbada told VOC on Thursday. "Otherwise not much has changed since last week. For us the first prize would be for the court to decide that no development can take place at Oudekraal. Because of various karamats on this site, it holds great significance for Muslims. Not only is it the grave site of Sayed Jafar (RA), which is also one of the major karamats in the Cape, but there are also many slaves buried there. It is one of the places that our hujjaj visit before their departure on the pilgrimage to greet the auliya."

Access

Limbada said Muslims have been visiting these karamats fro three to four generations and no one could take away their right to continue doing so. "Once you have visited a place for over 30 years, you acquire prescriptive rights there and no one can stop you from going there. While in business it is different, when such visits have a religious aspect, they are even less likely to stop you. They must make arrangements for people to visit."

As such, he said, they remained "fairly confident" about Muslim rights. "But this is why it remains important that we talk with the developer who is presently on the site. He promised that he had already appointed archeologists and echo friendly people to inspect the site in a forensic investigation. They will mark out all the plots in conjunction with us and the MJC promised that there won't be any development on sites where there is a karamat. They will also put in a road to Sayed Jafar's karamat at their cost to provide access for Muslim visitor," he explained.

Due to a running battle with the property owner, Kasper Wiehahn, preceding 2001 when it first went to court, relations between the Muslim community and Wiehahn were less than cordial. However, the Cape Mazaar Society and the MJC indicated a willingness to co-operate with the developer who has the option to develop.

"If they are successful in their right to develop, this developer will be taking the lead, not Mr Wiehahn. But the developer has the option to give the land back to Mr Wiehahn, and that is what we don't want because we believe he will develop without consideration." When contacted by VOC on Wednesday, attorneys for Wiehahn said he declined to comment.

The matter was set down for two days in the Court of Appeals and Limbada said they would be calling a meeting with all stakeholders very soon to consider the next step. This includes looking at ways to involve the public. "In the past, the public was involved very successfully and that had a big influence on the court."

While there was a reason to mobilize now, Limbada said their bigger worry was for the future. "We are worried about many years from now when some minister high in government might just okay development rights without consideration. What we are looking for now is a win-win situation for everyone and we are now working hand in hand with the MJC on this matter."

Background

The presence of these graves and kramats has been a prominent feature of this long-running legal battle that has been in the courts since August 2001. In September 2006 there was a massive protest by thousands of Muslims, joined by environmentalists, against the proposed development of Oudekraal.

In their heads of argument for what is expected to be a two-day hearing that started yesterday, the property company's lawyers point out that the ownership of roads and other public places shown on the General Plan, supposedly approved by the Administrator, has been vested in the city since January 1962.

"If the township approval is set aside, those streets, roads and public places would revert to Oudekraal Estates. This is by no means insignificant." They say the kramat of Sayed Jaffer, the most important of the kramats on Portion 7, is on one of the "approved" erven that is the largest public place on the property. So is another kramat and the "vast majority" of the identified graves.

"Because those kramats and graves are on a public place, the ownership of which vests in the City (notwithstanding the fact that the township has not yet been developed), the Muslim community is entitled to unfettered access to them. But, if the review (of the township rights) was to be successful, and the public places and roads closed, the public place would no longer belong to the city and would instead be the private property of Oudekraal Estates... (which) would be legally entitled to fence its property and bar access to outsiders, or at least control who entered it."

In their heads of argument, lawyers for second respondent Sahra say there is "incontrovertible evidence" that the township was approved in 1957 in the "heyday of apartheid" when the Muslim community, then classified as "non-white", had been marginalised and suppressed. "The development of Portion 7 in accordance with the approved general plan will infringe or threaten the rights of the Muslim community to freedom of religion, to the enjoyment of their culture or to the practice of their religion as provided for in the constitution.

"The whole of Portion 7 forms part of the Muslim community's cultural landscape and plays an integral part in their cultural practices, and it would be a sacrilege to permit the potential desecration of unmarked graves."

The lawyers for Oudekraal Estates also state that they have been unable to find any example anywhere in the world where a judicial review application has been upheld in respect of an administrative decision made 50 years previously - "...or, indeed, any period remotely approaching that". "International legal history therefore suggests that this was a most ambitious and exceptional endeavour on the part of the respondents." VOC