The Amicus Curiae (Friend Of The Court)

Written by Mufti Advocate Emraan Vawda

In response to the application by UUCSA to the court

The First and Second Applicants are two Maulanas, and the Third Applicant is a Musjid organisation. The Majlis does not feature as a party. However, since the Applicants rely on the views of the Majlis, they are being made to carry the burden for whatever the Majlis says or does. This is a repeat of the same ‘Guilty by Association’ phenomenon I had previously referred to.

The Applicants clearly state in their papers that they do not represent all South African Muslims. The relief sought does not impose anything on other persons. Those who elect to have their Musjids closed will still be able to do so. At best, if the relief is granted, it will allow those places of worship who want to congregate to approach a Magistrate, and apply for permission, with necessary conditions, to be allowed to have congregations.

The Applicants accept that they follow a particular interpretation. They are not imposing that interpretation on anyone. However, based on their understanding they feel that they have a right to have their Musjids open.

This argument that the applicants are creating an impression that they speak on behalf of all Muslim is a deliberate misrepresentation resorted to as a face saving exercise.

UUCSA should not pretend to be simply observers. They are actively undermining the Applicants’ case under the name of being ‘a friend of the court’. Any seasoned lawyer will tell you, no Amicus is a neutral observer. Ultimately, an Amicus supports one side or the other. In this case UUCSA has its guns out to discredit the Applicants’ case.

The article says that the outcome could potentially affect all South Africans. Firstly, there are hundreds of cases every year in our courts which potentially affect the whole country, but UUCSA does not join in as an Amicus. Secondly, the relief if granted will not be binding on anyone. In other words, the day after the order is granted they will be in the same legal position they were on the day before the order was granted. At best, it creates an option. If people chose to ignore that option, nothing has changed.

UUCSA advances arguments that Salaah with Jamaat is not as important as the Applicants contend it is. Why can UUCSA not respect the Applicants’ view which they wish to hold?

In a condescending manner, UUCSA is claiming to be the only correct voice as far as understanding the Shariah is concerned. They are in effect shouting out: You are too stupid, so we have to intervene to save you from your own stupidity.

At best, UUCSA should have kept silent. Why interfere and be an obstacle in another Muslim’s attempt to advance what he feels is his Islamic right? If you do not want to go to the Musjid, or feel it is not the correct thing to do, then why be an impediment to another Muslim’s attempt to do so? You will not be responsible for his actions, nor is he asking your opinion.