Ashrafiah Trust v Rylands (C184/2023) [2023] ZALCCT 50 (25 August 2023)

THE LABOUR COURT OF SOUTH AFRICA

HELD AT CAPE TOWN

case no: C184/2023

Not Reportable

In the matter between:

ASHRAFIAH TRUST (Registration number it 6711/98 t) Applicant And MOULANA MOGAMAT FAROUK RYLANDS Respondent

Heard: 10 August 2023

Delivered: Date of Judgment: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 25 August 2023.

JUDGMENT

CONRADIE AJ

[1] This matter came before me as the return day of a contempt of court application.

[2] This followed an ex parte application by the Ashrafiah Trust (the Trust) for Moulana Mogamat Farouk Rylands (Moulana Rylands) to appear in court on 21 July 2023, to show cause why he should not be found guilty of contempt of court for refusing to abide by a court order granted by Mahosi J.

Background

[3] Moulana Rylands is an Islamic scholar who graduated as an Aalim from the Islamic University, Darul Uloom, Newcastle after six years of studying. He has been the Imam of the Waterloo Road Mosque in Kenwyn for approximately twenty years. He is also a teacher at the Islamia College in Lansdowne, Cape Town.

[4] Moulana Rylands was dismissed on 20 February 2023. However, despite his dismissal, he has refused to vacate his position as the officiating Imam at the Waterloo Road Mosque.

[5] Having secured his dismissal, the Trust was unhappy that Moulana Rylands continued to act as the officiating Imam at the mosque. It was also unhappy that he was speaking out against the Trust and its trustees. The latter formed part of the original complaints against Moulana Rylands which led to his dismissal.

[6] The Trust decided to address the matter through an urgent application to this court, which it launched on 21 April 2023. In summary, the relief sought by the Trust was that Moulana Rylands be:

6.1 Directed to vacate his post as Imam of the Waterloo Mosque and that he be interdicted from holding himself out to be the officiating Imam of the mosque and leading prayers, including Jumuah Prayers.

6.2 Interdicted from obstructing and preventing the Trust from appointing a new Imam at the mosque.

6.3 Interdicted from obstructing, assaulting, intimidating, threatening or impeding access to any Imam appointed by the Trust.

6.4 Interdicted from obstructing, assaulting, intimidating, threatening or impeding access to the trustees and other related persons.

6.5 Interdicted from causing damage to any equipment, furniture, appliances or other contents at the mosque, or from removing these items from the mosque.

[7] The Trust also sought an order authorising and directing the Sheriff and the South African Police Services to remove and eject Moulana Rylands from the mosque if he failed to comply with the interdict.

[8] The matter was set down to be heard on 25 April 2023, but did not proceed on that day. Instead, Lagrange J issued an order postponing the matter until 26 May 2023 and directed the parties to file answering and replying affidavits as well as heads of argument by specified dates.

[9] Moulana Rylands had to file his answering affidavit by 9 May 2023, but failed to do so. He also did not attend the hearing on 26 May 2023. As a result, Mahosi J granted the Trust the interdictory relief which it sought in its notice of motion.

[10] According to the Trust, despite the interdict, Moulana Rylands still continued to lead prayers at the mosque and asked the congregation to stand firm against the trustees, resulting in further division and hatred towards the trustees.

[11] The Trust therefore launched the contempt of court application, in terms of which Moulana Rylands was called upon to appear in court on 21 July 2023 to show cause why he should not be found guilty of contempt of court for refusing to abide by the order granted by Mahosi J. In the event that he was unable to provide a satisfactory explanation to the court, the Trust requested that he be found guilty of contempt and that he be imprisoned or fined.

Legal submissions and evaluation

[12] By the time that the matter came before me on 10 August 2023, Moulana Rylands managed to secure legal representation, resulting in him filing his answering affidavit in the contempt application on 19 July 2023. At the same time, he filed an application to rescind the judgment of Mahosi J. He also sought condonation for the late filing of both the answering affidavit and the rescission application.

[13] I will first deal with the condonation application and then with the rescission application.

[14] Given the view that I take in the matter it is not necessary to deal with the contempt application. However, as the answering affidavit in the contempt application and the founding affidavit in the rescission application are intertwined and reference each other, it is still necessary to have regard to the answering affidavit.

Condonation

[15] According to Moulana Rylands, the answering affidavit is 9 days late and the rescission application is 22 days late.

[16] The main reason advanced by Moulana Rylands for the lateness is that he was unable to afford legal representation.

[17] It was only on 3 July 2023, through the assistance of his local mosque community, that he secured the assistance of his current legal team who are based in Johannesburg.

[18] On 4 July 2023 Moulana Rylands consulted with his legal team who then advised him that there were sufficient grounds to rescind the court order of 26 May 2023.

[19] On 6 July 2023 his attorneys wrote to the Trust requesting an extension of time within which to file his answering affidavit in the contempt application. The Trust’s attorneys indicated that they were unable to agree to the extension due to the fact that the timeline for filing papers was determined by this court.

[20] Moulana Rylands has repeatedly tendered his apologies for not complying with the court orders, insofar as the filing of affidavits are concerned, and for his non-appearance in court on 26 May 2023. He says that he meant no disrespect to the court.

[21] Moulana Rylands submits that the delay in filing his answering affidavit and the rescission application is not significant having regard to the exigencies of the matter and the difficulties he faced in securing legal representation.

[22] He also submits that the Trust will suffer little, if any, prejudice and has been able to file a replying affidavit in the contempt application and an answering affidavit in the rescission application. On the other hand, he will be severely prejudiced should condonation be refused. He submits that he is considered the religious leader of the Kenwyn community and that the request to incarcerate him would not only affect him, but the broader Muslim community of Kenwyn. It is therefore not in the public interest to incarcerate him and he should be given an opportunity to state his case.

[23] I have decided to exercise my discretion and to grant condonation. In my view the delay is not excessive, whether in respect of the answering affidavit or the rescission application and a proper and sincere explanation has been provided by Moulana Rylands. It is also not disputed that nearly five hundred people from Kenwyn and surrounding areas signed a petition in support of Moulana Rylands. The petition rejected his dismissal and called on the Trust to immediately reinstate him and to address the community to explain their actions. In addition to this, there are testimonials from community members and congregants who speak about his deep commitment to his religion and his religious duties. It is therefore in the public interest that condonation be granted.

The rescission application

[24] Moulana Rylands has raised several points in limine. These relate to the failure by the Trust to cite or join the trustees to the application; the status of the Trust’s representatives to act on its behalf in these proceedings; the court’s apparent lack of jurisdiction to grant the interdictory relief on 26 May 2023; and the existence of an alternative dispute resolution clause.

[25] Given the view which I take in this matter, it is only necessary for me to deal with the submissions relating to the existence of an alternative dispute resolution clause.

[26] The rescission of court orders is provided for under section 165 of the Labour Relations Act (LRA) and Rule 16A of the Rules of the Labour Court (Rules).

[27] Section 165 provides as follows:

‘The Labour Court, acting of its own accord or on the application of any affected party may vary or rescind a decision, judgment or order –

(a) erroneously sought or erroneously granted in the absence of any party affected by that judgment or order;

(b) in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission;

(c) granted as a result of a mistake common to the parties to the proceedings.’

[28] The wording of Rule 16A(1)(a)(i) – (iii) is identical to section 165 of the LRA.

[29] Section 165(a) of the LRA is similar to Rule 42(1)(a) of the Uniform Rules of the High Court. Commenting on the High Court rule Erasmus[1] states the following:

“An order or judgment is erroneously granted if there was an irregularity in the proceedings, or if it was not legally competent for the court to have made such an order, or if there existed at the time of its issue a fact of which the judge was unaware, which would have precluded the granting of the judgment and which would have induced the judge, if he had been aware of it, not to grant the judgment.”

[30] In Sizabantu Electrical Construction vs Guma[2], the court held that “in short, good cause is not required to be shown if a judgment or order was erroneously granted in the absence of a party”.

[31] Moulana Rylands submits that the order granted by Mahosi J was granted in circumstances where she was not aware of all the facts pertaining to the matter. In this regard, he submits that the court lacked jurisdiction to hear the matter because clause 22 of the agreement between himself and the Trust provides that:

“If any dispute between Imam and committee is unresolved, a third party (preferably an Aalim) mutually acceptable will arbitrate and rule on the matter.”

[32] In Gerber vs Stanlib Asset Management (Pty) Ltd[3] the Labour Appeal Court held that “It is trite that if parties agree in a contract of employment that if any disputes arising between them will be privately arbitrated then, absent evidence to the contrary the principles of Pacta Sunt Servanda must apply…”.

[33] It is not in dispute that the employment contract, and in particular clause 22, was not disclosed to Mahosi J.

[34] According to Herbstein and van Winsen[4] “in order to establish a bona fide defence, the Defendant must set out averments which, if established at a trial, would entitle him to the relief asked for, it is not necessary to deal with the merits of the case or produce evidence that the probabilities are actually in the Defendant’s favour.”

[35] In my view the averments in respect of clause 22 of the employment agreement are sufficient that, if established, it would be a defence to the Trust’s application for an interdict. It is not necessary to deal with the merits of the case or for Moulana Rylands to produce detailed evidence that the probabilities are actually in his favour.

[36] In the circumstances, I am satisfied that had Mahosi J been aware of the existence of clause 22, which may have had a bearing on the court’s jurisdiction to hear the matter, she would not have granted the order.

[37] My decision to rescind the judgment of Mahosi J means that Moulana Rylands will have an opportunity to put up his defence in the interdict application. Should he once again fail, for whatever reason, to file answering papers or to appear when the matter is heard, he will only have himself to blame and should then have no expectation of any further leniency from this court. My decision to rescind also means that Moulana Rylands cannot be held in contempt of court and the contempt application must be dismissed.

[38] In order to give effect to the consequences of this order, Moulana Rylands is required to file his answering affidavit within 10 court days of the date that this judgment is handed down. Thereafter the Trust will have 5 court days to file any replying affidavit.

[39] As far as costs are concerned, both parties are to blame for the matters currently before me. The Trust did not discIose the existence of clause 22 of the agreement to Mahosi J, and Moulana Rylands failed to appear in court when the matter was heard or to file papers. I therefore see no basis for ordering costs.

[40] Finally, given that this matter deals with aspects of law and religion, I urge the parties to seriously consider utilising a body such as the Muslim Judicial Council (MJC), to resolve the dispute. The outcome of such a process may be more meaningful for the local Muslim community which has shown its support for Moulana Rylands. It also appears from the court papers that the MJC has previously assisted with disputes at the mosque relating to the Trust and its management committee.

[41] In the circumstances I make the following order:

Order

1. The late filing of the Respondents answering affidavit in the contempt application and the late filing of the rescission application is condoned.

2. The order of Mahosi J dated 26 May 2023 is rescinded.

3. The Applicant’s contempt of court application is dismissed.

4. The Respondent is ordered to file his answering affidavit in the interdict application within 10 court days of the date that this judgment is handed down.

5. The Applicant is ordered to file any replying affidavit in the interdict application within 5 court days of receiving the Respondent’s answering affidavit.

6. There is no order as to costs.

BN Conradie

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant:

Mr N Kellerman of South African United Commercial and Allied Employers’ Organisation

For the Respondent:

Mr AB Omar instructed by Yousha Tayob Attorneys

[1] Superior Court Practice (Juta original service 1994) at B1-308.

[2] (1999) 4 BLLR 387 (LC) at para 6.

[3] (2022) 43 ILJ 1080 (LAC) at para 41.

[4] Herbstein and Van Winsen Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th Edition) Jutastat e-publications (2009) at 716.