A proposed property development on the slopes of Table Mountain above the historic Bo-Kaap, where house prices are sky-rocketing, has elicited a fatwa (an Islamic decree issued by a recognised authority) from the Muslim Judicial Council (MJC) banning any construction at the Tana Baru Muslim burial site and shrine.
At the heart of the controversy is the significance of the area’s heritage. Muslims, slaves, Khoi, San and Chinese indentured labourers were buried at Tana Baru as far back as 1772. The site also contains the grave of Tuan Guru, who established South Africa’s first mosque.
The MJC fatwa against land sales and housing construction has been countered with three pro- development Islamic rulings, one from Cairo’s Azahr University, a leading Islamic authority.
The Bo-Kaap families spearheading the development say their title deeds fall outside the actual kramat (burial site) and thus entitle them to build. ”The question is not how much money we can make out of it, but how best do we realise the equity which is in the ground,” said Mohamed Khan. ”We are not insensitive to the preservation of Tana Baru.”
Those opposed to the development say the whole stretch of land along the slopes must be regarded as sacred.
”Construction by unscrupulous developers will be fought tooth and nail,” said the Tana Baru Trust attorney, Igshaan Higgins.
And the Bo-Kaap Civic Association chairperson, Osman Shabodien, agrees. ”We will definitely not be party to building on the Tana Baru … we feel strongly the grounds have been declared waqaaf [in communal custody].”
In June the Tana Baru — which forms part of the Green Point Burial Ground where slave remains were found during construction two years ago — was declared a provisionally protected area. No development may go ahead in the next six months without approval from the South African Heritage Resource Agency.
Agency spokesperson Solayman Ebrahim said the organisation is currently raising funds for a full investigation into the Tana Baru heritage status.
”It must be understood that even though the site is of great significant value, the private land owners have certain rights too.”
Landowner and prospective developer Reza Doutie said his great-grandfather bought the land in 1857 and the title deeds clearly state the land was for development.
This is to be presented to the MJC Fatwa Committee to persuade it to review its earlier ruling.
While the Bo-Kaap Civic Association is not opposed to ”a progressive settlement” that could include compensation, this may prove sticky in the booming Cape Town property market.
According to the Deeds Register, one plot acquired in the area in 1984 for R11 250 was sold in 2000 for R1,5-million.
The Cape Town city council, understood to have auctioned off several plots in the 1960s, could also be drawn into the dispute.
Tana Baru is one of 20 kramats — which include Signal Hill, Oudekraal, Constantia, Macassar and Robben Island — giving life to the 250-year-old prophesy of a ”circle of Islam” around Cape Town.