A dispute over the sale of land that forms part of the Tana Baru Cemetery in the Bo-Kaap has led the Claremart auction group to cancel the R20-million sale.
The Tana Baru burial site is the first Muslim cemetery in South Africa and is home to the remains of some of the Cape Town’s most prominent early Muslim leaders, including Tuan Nuruman, Tuan Sayeed Alawse and Tuan Guru.
But last week, Claremart put out a newspaper advert announcing that two plots in the cemetery were up for auction. The plots amount to 20% of the cemetery land. The advert clearly marked that the plots were zoned for single residential use, which means that one house can be built.
“Primely located in this trendy and welcoming neighbourhood, the property offers massive upside potential,” the advert reads.
But residents in Bo-Kaap and some in the wider Cape Muslim communities have been outraged by the attempt to auction the land. Igsaan Higgins, a lawyer who has helped to protect the cemetery for the past 21 years, spoke with Claremart to relay the significance of the grounds. Higgins was acting on behalf of the Bo-Kaap Youth Movement, which has led protests and organised mass meetings of various communities to break the religious fast during Islamic month of Ramadan.
“That land is actually a burial ground. It wasn’t for development … If those developers start digging, they going to find the remains our ancestors,” Higgins said.
The ownership of the cemetery is complex. Historically, the land had been owned by the community, but when new land ownership laws were introduced in 1857, it was divided into plots and the leaders of each of the mosques in Bo-Kaap held it in their names for the community and for their congregants to be buried there.
Now, some of the heirs of those leaders are claiming individual ownership, rather than following the style of ownership that saw the land being held as a trust. Abdullah Dotuie, one of the heirs who is challenging the sale, has spoken out against his family members for trying to auction the site.
“My father didn’t want to sell. He had principles. He knew the history of the Tana Baru. But he had family members who just wanted to sell,” Doutie told theCape Argus.
“My family has pestered me for the last 40 years to agree to sell. Now the majority have agreed to sell but I want nothing to do with it.”
The Tana Baru Trust was registered in 1998 with the aim of protecting the cemetery. Higgins represented the Trust when it first encountered challenges from developers and others who wanted to buy the property. The Trust has been outspoken about the sale, which led Claremart to eventually withdraw.
Higgins says that, morally, the cemetery should be considered as owned by the Bo-Kaap community.
“Those lands belong to the community originally because the city council gave it to the community,” Higgins says.
“There was certain people who put it in their names with the permission of the community at the time. They were holding it in a trust for the community. Many generations later, the property is still in their names, and of course their heirs now believe it belongs to their great-great grandfathers. But the argument is it was actually held in a trust for the community,” Higgins says.
With the consent of some of the heirs, Claremart put two plots up for auction. Its director, Andrew Koch said that the auction house was unaware of the ownership, spiritual and historical significance at the time.
“When we found about it, of course we took a decision to cancel the auction,” Koch said.
“We were instructed by legal owners of a property to go to an auction. We can’t just say, well, we don’t feel like it. We are registered estate agents, and if they are the registered owners we have no right in law to say we can’t put your property on auction,” he said.
“As a result of the community action and as a result of us becoming aware that the dispute in ownership is in place, we have taken a decision to say we can’t proceed,” he said.
Higgins described Claremart of “acting on their conscience” to stop the sale and applauded the company.
But there are still calls from the Bo-Kaap community for the cemetery to be zoned under national heritage protection so that it remains safe from desecration.