CAN a mosque be waqf and at the same time be owned by a private trust? This issue has been interrogated over the past three years by some stakeholders of Al Jaamia Masjid, in Stegman Road, Claremont, Cape Town.
In March 2014, the imam of Al Jaamia, Shaikh Riyaad Walls, was dismissed by the mosque exco, allegedly for not fulfilling his appointed role. After a joint meeting with both parties, the trustee of the Shahmahomed Trust, Professor Faadiel Essop, then reinstated Shaikh Walls and soon thereafter dismissed the exco.
The chairperson of the dismissed exco, Mugamad Esau, says the Shahmahomed Trust ‘acted in an arbitrary and high handed manner’ by dissolving a democratically elected body that served the Al Jaamia congregation for decades. He says he does not recognise the new exco as legitimate.
According to Esau, the trust asserted its powers of legal ownership of the mosque to dissolve the previous exco and to call for the election of the present exco. He insists that this is in breach of the conditions of waqf and therefore the new exco cannot be legitimate.
He adds that this also means that the new exco is not entitled to collect public funds for the mosque because privately owned institutions do not qualify for public funding. (The new exco is currently making an appeal to the public to raise R9,1 million for major renovations to the mosque.)
Essop declared his support for the new exco and its fundraising campaign. He indicated that it was as custodian that he took the unprecedented decision to reinstate Shaikh Walls and dissolve the previous exco.
He believes ‘serious issues’ needed his intervention and that this was in the interests of Al Jaamia. He added that the new exco was elected by the congregation after a process of public participation that was open even to members of the dissolved exco.
Essop told Muslim Views that the trust normally does not intervene in the management of the mosques under its control and has always respected decisions made by the elected excos, unless called upon to do so (on rare occasions) by the parties involved in order to resolve serious conflict.
In addition to Al Jaamia Masjid, the trust also owns the Darul Karar Masjid in Park Road, Wynberg. The policy of the trust is to allow the respective mosque excos the autonomy to manage the affairs of the mosques independently of the trust.
Essop says Al Jaamia Masjid has been operating ‘in line with the trust deed’ for over a century. It is in this ‘enabling environment’, he says, that great leaders and ulama like Imam Haron served and inspired Muslims beyond the precincts of Al Jaamia.
However, Essop says that if the objections to the legitimacy of the new exco negatively impact on the funding campaign of the mosque then it may pose some risks for the institution’s financial sustainability.
The Shahmahomed Trust, says Essop, has never been the sole source of funding for the mosque, let alone the planned renovations. The objections from the congregation, he says, have the potential to deprive the community of benefit from a historically significant institution.
In Islam, waqf is an endowment made by a Muslim to a religious, educational or charitable cause. A mosque is generally considered waqf so no person can claim ownership of a mosque. It is this status of the mosque as waqf that enables those who manage its affairs to solicit public funds for its maintenance and upkeep.
However, it is the legal ownership rights of the trust that enable the trustees to exercise powers to act in the interests of the stated beneficiaries of the trust deed, namely the congregation. Ideally, this happens if there are good relations between the key stakeholders associated with the mosque, namely the exco, the trustees and the imam.
Essop consulted Moulana Taha Karaan, the mufti on the Muslim Judicial Council (MJC) Fatwa Committee.
With reference to Al Jaamia, Moulana Karaan is of the view that it is possible for a waqf property to co-exist as privately owned property in South African common law.
However, the moulana argues that in Islamic law it is ‘fundamentally incorrect’ to describe it as ‘privately owned’ by one of the Shahmahomed trustees. The trustee (or any other authority) automatically assumes the powers and role of only a custodian.
Dr Abdul Kariem Toffar, former Deputy Principal (Academic) of International Peace College South Africa (Ipsa), concurs with Moulana Karaan and adds that waqf ‘cedes to the property of Allah immediately it is enacted by word or deed whether direct or indirect or implied’.
‘Thus, if someone who owns a building, allows people to offer salaah in it, it cedes as public waqf even without speech or document,’ says Shaikh Toffar.