The Muslim Judicial Council (MJC) expects to hold a mediation between two parties involved in the land contestation over the use of the Bo-Kaap food garden – ahead of their next court appearance on 16 March.

The dispute is between the Sustainable Bo-Kaap Association (Suboka) and trustees — the Darul Falaah Study Group* (DFSG). 

Suboka took the trustees and some neighbouring residents to court on 22 January, after the gates to their garden were locked last year.

The garden with sweet intentions – meant to provide produce for the community during the lockdown – has since turned sour. Suboka founder Soraya Booley’s claims to have received permission to occupy the Islamic endowment land known as “waqf” land, have been largely disputed by the trustees and developers of the land, the Universal Islamic and Cultural Trust (UICT).

The bitter row in the community has also led the Bo-Kaap Civic and Ratepayers’ Association to withdraw an August 2020 letter of support for the garden on 23 January, just after the first court proceedings took place.

Its decision to withdraw the letter of support came “as it came to light that [the use of the land] became a controversial issue, with the Shariah involved and religious things involved”, said Osman Shaboodien, chairperson of the Bo-Kaap Civic and Ratepayers Association.

“We withdrew it for the sake of unity,” he said.

 The MJC stepping in

Neighbouring residents and the Bo-Kaap Civic and Ratepayers Association approached the MJC South Africa to intervene on 1 February, according to spokesperson Mujaahid White.

According to White, the council holds no legal power over the outcome of the court matter; theirs is only to settle the feud between the two parties.

White said about the dispute, “At the moment, what we are having is a lot of volatility… a lot of things are being said about the other. How much of it is true, how much of it is a lie, we don’t know. What we know is that this thing needs to be resolved.”

Ideally, mediation would happen between the parties before the next court appearance, White said.

The DFSG trustees were not present on legal advisory at the 1 February meeting, according to White. Suboka was also not present.

According to a 29 January DFSG email seen by Daily Maverick, the group would only attend the MJC 1 February meeting on condition that Suboka withdrew their application to court. The email also stated that  Suboka would need to pay their legal costs.

“Suboka can unfortunately not withdraw our matter, under the circumstances. We are a non-profit organisation, made up mainly of elderly women in Bo-Kaap and cannot attend mediation under those circumstances,” said Booley. 

The MJC is still awaiting responses from the parties.

The MJC’s stance on the use of waqf land — one central part of the dispute — is that the land is to be used for a “specific”, prescribed charitable cause laid out by the endower of the land. In this case, an Islamic educational institution is to be built.

But whether the land can be used in the interim as a garden, is still unclear.

According to Shaboodien, the civic hopes that the MJC mediation could also bring clarity on whether the land can be used in the interim as a food garden.

A civic task team had previously filed a report on the land contestation in December, with the conclusion that the conflict be urgently resolved within the community and that the gates be opened to avoid legal action.

‘It didn’t need to go to court’

According to the trustees in a January media statement, they were not responsible for locking the pedestrian gate to the garden in December, last year.

It was unclear, in the statement, who might have been responsible for locking the second gate, which prohibited the NPO members from accessing and watering their food garden.

“It’s a nonsense argument that they don’t know who locked the smaller pedestrian gate,” Booley contested, claiming that she recently saw the pedestrian gate being reopened on 8 February, only to be locked again on the same day.

In the trustees’ 24 January statement, they said that they had communicated suggestions to Suboka’s attorney that would allow the organisation to access their garden after being made aware of the unauthorised lock on the pedestrian gate.

“Suboka instead chose to let the garden suffer, at the risk of dying, while their attorneys instituted action in the high court against the DFSG and others for a laundry list of demands,” said the trustees in the statement.

“We do not know the motivation behind this court action, given the fact that they do not need a court order to open the gate, as has been exhaustively communicated to them.”

Booley did not comment on Suboka’s decision to decline these attempts made on the part of the trustees to open the pedestrian gate.

But seemingly, Suboka members are desperate to try to gain access to their garden to at least water their crops.

Booley said that members recently tried to gain access to the garden through the back doors of some neighbouring residents to water the garden.

These attempts failed, Booley said, as neighbours were afraid they would be regarded as accomplices to trespassing. The neighbours had suggested that they ask one of the other neighbours living opposite the garden to open the gate, she said.

The offer to open the gate

The trustees’ offer to open the pedestrian gate was also made during the 22 and 25 January court proceedings, according to a statement that Booley sent to Daily Maverick on 1 February.

According to Booley, the gate would only be opened if all legal costs were paid.

Suboka’s proposal was that they would not ask for costs from the parties on condition that both gates were opened and that parties accepted the interdict to not lock Suboka out of their food garden again.

Suboka also said they would move their mobile garden when the building of the educational institution begins.

None of the parties came to an agreement.

“Suboka is still hoping that the matter can be settled before it goes to court,” Booley said in the statement.  

The Darul Falaah Study Group has declined to speak to the media whilst the matter is being held between the attorneys and in court. DM

This article was updated on Sunday 14 February, with additional information about the pedestrian gate.