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The recent Mowbray Muslim Cemetery High Court ruling indirectly brought to the fore issues of heritage law, governance, and the sacred nature of burial spaces in Islam.
By ANWAR OMAR
The recent Western Cape High Court judgement (Bassier v The Moslem Cemetery Board, 2026) regarding the administration of the Mowbray Muslim Cemetery has indirectly highlighted heritage dimensions of burial site governance under South Africa’s heritage regulatory framework. The ruling addressed three key issues:
· the legitimacy of the current board,
· entrenched lineage-based membership; and
· a proposed development of a mortuary (cold room) on the site.
As a result of ongoing governance lapses, including 15 years without Annual General Meetings, the court instructed the reopening of membership registration to the broader Muslim community, at a Special General Meeting (SGM), to be convened within 60 days to appoint a new governing body (Bassier v The Moslem Cemetery Board, 2026).
The court declared the 2020 constitution unlawful and endorsed the 1948 constitution to be a valid governance framework. Furthermore, the court declared ‘any interpretation or practice that treats membership as confined exclusively to lineal descendants, to the exclusion of other persons invalid and of no force and effect’ (Bassier v The Moslem Cemetery Board, 2026). This effectively removed the lineage-based provision, which established a structure that would have effectively excluded large segments of the Muslim community. This reinforced the principle that access to governance of burial spaces cannot be limited to hereditary privilege.
The court also issued a restraining order to prohibit the construction of a mortuary (cold room) on the cemetery property, declaring it inconsistent with its purpose as a burial space (Bassier v The Moslem Cemetery Board, 2026).
However, the court did not engage with the heritage dimensions of the case, focusing largely on the legality and constitutional validity of the founding clauses. Nevertheless, within this limited legal scope, the ruling carries significant and unavoidable consequences for heritage governance as outlined in the National Heritage Resources Act of 1999 (NHRA).
An Islamic ontology of burial
Fataar (2024, p. 8) notes that across cultures, visiting and mourning at gravesites is a deeply ingrained ritual that provides structure and meaning to the grieving process. It offers the bereaved a space to seek comfort and solace through remembrance. He further explains that these practices play an important role in mourning and healing and is often understood to provide a tangible place where the bereaved can honour their loved ones, express their emotions, and sustain a sense of connection to the deceased and their shared history.
It is therefore important that any meaningful discussion on cemeteries, particularly within Muslim communities, must begin with an appreciation of an Islamic perspective that governs death, burial, and the treatment of the deceased. In Islam, burial spaces are not merely functional sites of interment; they are sacred extensions of life, dignity, and accountability before Allah (Halevi, 2007).
In Islam, it is a collective obligation (farḍ kifāyah) to ensure that deceased are buried with dignity and in accordance with prescribed rites, which forms part of the ethical and legal fabric of Islamic life (Sabiq, 1991, p. 61). Islamic teachings further establish the inviolability of burial sites, affording the deceased sanctity that mirrors that of the living. The Prophetic teaching that ‘breaking the bone of the deceased is like breaking it while alive’ (reported in Abū Dāwūd, Hadith 3207) establishes a foundational principle that human dignity endures beyond death. Any form of disrespect, desecration, or disturbance, including unnecessary exhumation, encroachment, or development undermines the dignity of the deceased and is therefore strictly prohibited (Davids, 1980, 1985; Halevi, 2007).
While Muslim jurists have recognised limited exceptions under conditions of necessity (darūrah) or compelling public interest (maslahah), most jurists affirm a strong presumption against the disturbance or repurposing of burial spaces, which remain constrained, exceptional, and tightly regulated within the Islamic tradition (Kamali, 2008). Cemeteries are not merely considered functional sites, but enduring repositories of human dignity, memory, and moral responsibility (Halevi, 2007, pp. 3–5). At the same time, cemeteries remain active spiritual landscapes.
The visitation of graves is an established Prophetic practice, serving as a means of moral reflection and remembrance. This practice is further reinforced by the prevailing custom (‘urf) within the Cape Muslim community of regular grave visitations, especially on special occasions like Eid and annual commemorations of deaths (Davids, 1980; Morton, 2025). Within the Cape Muslim community, cemeteries have historically been treated as enduring sacred trusts, resistant to commodification or redevelopment and, as such, burial spaces in the Cape Muslim tradition are not dormant relics of the past but living sites of memory and devotion (Davids, 1980, 1985; Morton, 2025).
These principles articulate an ontology of burial spaces that differs fundamentally with secular heritage frameworks that treat cemeteries as sites that are to be managed and which could be transformed. The Islamic perspective insists on their sacredness, inviolability, continuity, and permanence. This divergence lies at the heart of many contemporary tensions between secular heritage regulation and Islamic religious practice.
The NHRA and sacred burial landscapes
Cemeteries occupy a distinctive and sensitive place in society, particularly within the Cape Muslim community, serving simultaneously as sites of memory, identity, spirituality, and continuity. However, under the NHRA, they are regulated in ways that expose a fundamental tension between legal-administrative processes and lived sacred meaning. The NHRA appears to provide robust protection for burial sites under Section 36 and historical sites older than 60 years under Section 38, requiring permits from South African Heritage Resources Agency (SAHRA) and Heritage Western Cape (HWC) for any disturbances. Despite this, cemeteries are primarily treated as part of archaeological and tangible heritage, often classified alongside artefacts and tangible historical remains. This suggests a system committed to the preservation of burial spaces as part of the national estate; however, on closer inspection, a more complex story is revealed.
This framing shapes intervention approaches, recasting cemeteries as historical sites and graves as objects of investigation, rather than recognising them as living spiritual landscapes. Even where social, cultural and religious values are acknowledged, they are mediated through procedural mechanisms, permits, impact assessments, and mitigation strategies. It is within this regulatory logic that deeper tensions emerge between heritage governance and the principle of sacred continuity.
When development meets sacred ground
The implications of the Mowbray Muslim Cemetery court ruling become more pronounced when proposals for development within and in close proximity of burial spaces are considered, including the construction of a mortuary or any other ancillary structures. In terms of Section 36 of the NHRA, the intent of this provision is precisely to safeguard graves and burial spaces that lie both visibly and invisibly beneath the surface, particularly within formally designated burial spaces such as the Mowbray Muslim Cemetery. Over time, human remains extend beyond marked graves, forming what Schrire (2017, p. iii) describes as a diffused subterranean layer beneath the landscape, as grave markers disappear and the material traces of burial become less visible. These human remains are typically left undisturbed until surface-level interventions such as redevelopment for a mortuary, prayer facility, or other structures trigger excavation and expose them in the course of development.
Furthermore, as the Mowbray Muslim Cemetery is older than 60 years, having been established in 1886 and exceeds 5 000 square metres in extent, any proposed development within or adjacent to the site activates the requirements of Section 38 of the NHRA, necessitating a formal Heritage Impact Assessment (HIA). Such an assessment must evaluate the site’s cultural, historical, and social significance, determine the presence and extent of graves, and assess the potential impacts of the proposed development. This, in turn, raises a critical question as to whether these statutory requirements were complied with, and if not, on what basis approvals for the construction of a mortuary, a prayer room, or other structures were granted.
The missing dimension: Intangible heritage
South Africa has recently ratified UNESCO’s Convention for the Safeguarding of the Intangible Cultural Heritage (2003), which emphasises the importance of living traditions, practices, and belief systems. Yet the NHRA remains structurally anchored in tangible heritage: the physical, the visible, and the measurable (Omar, 2024).
Muslim cemeteries, however, cannot be reduced to their physical form. They are:
· sites of ritual and remembrance
· anchors of community identity
· expressions of theological belief
When legislation prioritises the material over the intangible, it risks missing the very essence of what it aims to protect.
Public participation and descendant consultation
A central requirement of the NHRA is meaningful consultation with affected communities and descendants (Section 25). As a Muslim institution, the Mowbray cemetery is an endowed religious property (waqf), which introduces additional layers of governance including the original purpose of the land, the fiduciary responsibilities of cemetery boards or trustees, and the need to ensure compliance with Islamic legal and ethical principles. The recent court ruling indirectly foregrounds this requirement by dismantling lineage-based authority, raising critical questions about who legitimately represents the community and how consent is obtained in a post-lineage governance framework.
Governance in transition: The problem of process and legitimacy
A further complexity arising from the court’s decision lies in what it left unresolved. While the judgment correctly questions the legitimacy of the current board and ordered a SGM to reconstitute governance structures, it did not provide sufficient clarity on how such a process should be conducted (Bassier v The Muslim Cemetery Board, 2026). This omission drives at the heart of legitimacy. In practical terms, having been deemed unlawful, the current board cannot reasonably be expected to oversee the process that is meant to replace it. To allow such a structure to convene an SGM, determine membership eligibility, and administer elections would effectively position it as both referee and player.
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This raises serious concerns about procedural fairness, transparency, and the integrity of the process and its outcome. The situation presents a paradox in that a governance structure that has been declared invalid is being allowed to manage the transition. Without clear judicial or regulatory guidance, this creates a vacuum that risks further contestation and undermines confidence in any newly constituted body. The legitimacy of those who govern the cemetery is not merely a legal matter, but a religious, moral and communal one that has profound implications for the Muslim community.
In this context, the transition process cannot be treated as a routine organisational reset. It requires:
· independent oversight or facilitation, to ensure neutrality;
· clearly defined rules of participation and representation; and
· a process that commands broad community trust, rather than reproducing past exclusions in a new form.
Without these safeguards, it risks that the governance crisis will persist, simply shifting from one contested structure to another, while the underlying ethical questions remain unresolved.
Conclusion
The recent court ruling (Bassier v The Muslim Cemetery Board) affirms the principle of equality and dismantles exclusionary forms of governance, yet it leaves some fundamental questions of governance and heritage unresolved. When an unlawful board structure is allowed to convene a SGM, determine membership eligibility, and administer elections, it would effectively shift the governance crisis from one contested structure to another, raising serious concerns about procedural fairness, transparency, and the integrity of the outcome, leaving the underlying ethical questions unresolved.
Where heritage is framed purely in material terms, cemeteries risk being reduced to sites that are managed, catalogued, and evaluated as tangible objects. By contrast, recognising these spaces as sacred heritage landscapes, imbued with an ongoing continuum of meaning, memory, and belief, opens the possibility for a fundamentally different approach, one that is not only viable but necessary.
If cemeteries are to be meaningfully protected, a shift in perspective is required by reframing them to recognise them as living sacred landscapes, not just as historical sites. It needs to integrate intangible heritage into decision-making processes by moving beyond mitigation toward preservation as a default principle, and by engaging communities not merely as stakeholders, but as custodians of meaning. From this perspective, cemeteries invite a reimagining of the intangible dimensions of heritage itself: not as something fixed in the past, but as a living domain that continues to shape ethical, legal, and spiritual life in the present and into the future.
ANWAR OMAR is a South African Heritage Resources Agency (SAHRA) councillor. A founding member of the Salt River Heritage Society, Omar holds a master’s degree in Conservation and the Built Environment from the University of Cape Town (UCT).
References
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