WAQF by Rashid Patel on 26 February-2014- Rashid Patel Company Rashid Amod Sadeck Patel-b-proc

Attorneys – Administrator of Estates – Commissioner of Oaths -Constitutional Litigation Certificate (Unisa ) Local and Provincial Government Certificate (Unisa ) – Immigration Agent – Land Claims and   Environmental Law – Trade Marks and Competition Law – Insolvency and Labour Law  Practitioner,  Mediation/Arbitration (Accredited)

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P.O. Box 849                                   Tel:27+036+ 3523827  Cel:0827483434

19 Drummond Road                        A/H 036-3523802

ESTCOURT ,3310                             Fax:27+036+ 3523830 (Answering Machine)

(Admitted as an Attorney in Lesotho)

Our Ref: Mr Patel    Your Ref:             Date : 12/9/2009

To: Municipal Manager

Municipality

To: Valuer

To:  Minister Cooperative Governance and Traditionbal Affairs Ministry of Cooperative Gvernance and

Traditional Affairs

Dear Sir

re: Property Rates Act: Estcourt Mosque and Madressa Trust :Siraatul Haq

Trust

We refer to the above matter and confirm that we lodge an appeal against the valuation of the properties owned by the Mosque /Masjid (place of worship) itself in essence, the further submissions made in this letter, should also apply to all Mosques, places of worship and Islamic institutions, owning properties. In particular, it is our request that these institutions be exempt from :-

1. Payment of Rates
2. Valuations of the property , especially in regard to properties owned by an Islamic Institution and the Mosques in the Country
3. We also request that no economic valuations be allocated to Muslim owned Islamic Institutions and in particular the Mosques. For the reasons explained, you will understand that, places of worship or Islamic institutions, are not predominantly reward or profit orientated. Therefore, any economic activity aligned to these properties is linked solely to sustainability of the Mosques or the institution itself.

We shall digress for a moment to deal with an explanation as to why and how property is acquired by Mosques and Islamic institutions and in essence, what their functions are, so that you will understand the reasoning for our suggestions. If necessary, we would require the Honourable Minister to investigate the amendment of the MPRA to the extent that our suggestions are given effect to. As the new Act has dawned upon us now, it would be appreciated if there is an urgent investigation of this aspect.

The MPRA has as its principle objects :-

1. To implement a fair system of exemptions and rebates through the rating policies of the municipalities;
2. To exclude certain properties from being rated.

In line with these principles, the Honourable Premier Dr Zweli Mkhize has expressed a noble opinion by supporting the view that places of worship ought to be exempt from payment of rates. Our point of departure, whilst we align ourselves to this proposition, is that of the breadth of such concession should also extend to properties owned by places of worship and in particular, the Islamic institutions which promote education , training and religious instructions.

Please consider the following , from the perspective of Islam:-

1. Almost all property given to a Mosque or Islamic institution, is given as  a gift or a form of charity for the specific purpose of same being used ;

2. The purpose stipulated is for a religious or noble purpose, sanctioned by the Shariah (tenets of Islamic Law);

3. The method of disposal of the property is defined as Waqf which means “tying up of the property in perpetuity” [i] It also means and involves the dedication of a property or giving it away in charity for the benefit of a good purpose or other religious or charitable motive.[ii]

4. The effect of this disposition is that, the property is prevented from becoming the property of any third person. The waqf property therefore, belongs to Allah (God) and no human being can alienate it for his own purpose. The first mosque so established was the mosque of the Prophet namely, Masjid al Nabawi. This principle of acquisition continued (referred to the establishment of Awqaf)  where for instance, the Caliph had bought a well and made it a trust property for the charitable use of all , to relieve them of the difficulties, for instance, imposed by the Jews who restricted access to water. This then becomes accessible for communal use. The mosque mentioned, is still in existence for the benefit of the public since 1400 A.H.

5. It has been mentioned by the Prophet Muhammed (PBUH) that there are 3 things that a person can leave behind which will benefit that person after death. Amongst those are: the establishment of welfare institutions for example a well, canal or building of a hospital, educational institution, old age home, etc. It is imperative that Municipalities and Government realize the importance and the Fundamental reasons for properties for instance, being established by Muslims so that you would perhaps understand our reasoning as to why we suggest a total exemption from payment of rates of the properties in issue.

6. Some examples from the traditions of the Prophet Muhammed (PBUH) that support these principles are as follows:-

6.1    Once the Caliph Umr bin Khattab (RA) bought a land in Khyber and went to the Prophet (PBUH) and sought guidance as to make the most pious use of it. The Prophet (PBUH) replied:-

“ Tie up the original property and devote the usufruct to human beings which

  is not to be sold or made the subject of gift or an inheritance. Bring the

  produce to your children, or relatives and the needy in the path of Allah.”[iii]

6.2    Once a person intends and transfers ownership of a property, that signifies an extinction of the appropriator’s ownership in the thing dedicated.[iv] Although in the literal sense Allah (God Almighty) does not own or possess the property so disposed , for the purpose of simply understanding this complex issue which involves intricate explanation which a non Muslim reader of this letter may not fully understand, we simplify this explanation so that you may understand the purport of the acquisition in the context of this letter.

The detention of the thing or property in the ownership of Allah is so that, its profit should be made use of for the good of mankind from beginning to the end.[v]

6.3    In effect then, where property still remains in the name of a particular person, who may have been the original acquirer of that property, once the intention has been made to relinquish ownership as a Waqf property, the owner loses control, possession and ownership of the property, although he/she may still be a registered owner thereof. That person cannot bond, sell, lease or benefit from the fruits off that property-it has no worldly economic value thereto. His rights thereto has been extinguished .

6.4    The ‘bequest’ of any property for waqf is generally, irrevocable. This supports the submission that Muslim could not disguise an acquisition to escape paying rates, as this constitutes a grave transgression.

6.5    The property is constituted by long use or immemorial use. Very often, the dominant use of a property owned by the Muslim community, establishes the function of that property and is one of the features of a property which in all probability, has been given on this basis.

6.6    The Quran disallows waqf property from being used for illicit means or those which are in conflict with the Shariah. Whilst the Shariah allows for private and public waqf, that is not relevant for this discussion.

6.7    No part of a mosque or waqf property can change its object and if the primary or intermediary object of a waqf fails or is changed, then it will constitute a grave offence .

7. In regard to the mosque, clearly there is no problem, being a place of worship, it is exempt from rates. In regard to the properties owned by the mosque or an Islamic Institution, note needs to be taken of the following factors:-

7.1    It is extremely difficult to pay the expenditure of a mosque which run into

thousands of rands per month. Due to the economic downturn, the limitation in charitable contributions by community, trustees and management of the mosques and institutions need to create some form of funding.

7.2    Some expenses are: water and lights, maintenance, salaries for Imaams,

teachers, caretakers, security, monies for the poor, infirm, those with

disabilities, students and scholars bursaries, creating institutions of learning

and also creating employment for the community. [vi]

7.3    To ensure a constant source of revenue, mosques and institutions , as in the present case, would have a few buildings which are let rent free to the Imaams, the Muezzin (one who calls to prayer, teachers) , the shops are leased on a minimum rental which is not market related rentals. The rentals are determined to allow the survival of the businessmen and also to create some form of revenue.

7.4    Mosques and Islamic institutions need to be self sustaining as there is no Governmental support and none is sought from Government, to alleviate unnecessary burdens on the Treasury. The Muslim community prefers to

maintain its own institutions from Halaal income.

7.5    The buildings in issue have not been developed with aesthetic appeal in

mind, they are very old and are in a reasonable state of repair. The income generated, is not market related and to increase rentals to accommodate for payment of rates, will result in the tenants leaving the building, because all are cash strapped. Because the principle aim of letting is to acquire some income and to generate business amongst the community, rentals are not commensurate with the size and location of the buildings. There is little or no significant trade at this end of Albert Street in any event.

All the flats are exclusively for use of staff and generates no income

whatsoever. The water and electricity usage is also paid by the trustees

from donations and the insignificant income that is received from the shops

at the bottom of the building.

7.6    The buildings are occupied generally by foreigners, whose security of tenure

is dismal and the arte of vacant shops, arrear rentals and non payment is common practice and a regular occurrence.

7.7    If rental capitalization method is used, then the return is insignificant.

Properties across these shops have been divided to increase the incidence

of letting to smaller informal types of business-dressmakers, hairdressers .

there are no anchor tenants and the size of the shops in any event, will not

attract branded stores from leasing these properties. In fact, the location,

general appearance and the restricted types of trade permitted in terms of

the Shariah, has the effect of decreasing the full potential of the buildings, if

compared to any other property in town. This is an ‘aggravating’ factor that

must be taken into    account (restricted utility) when assessing valuations of

mosque and Islamic institution properties. For instance, these properties

cannot be let to interest bearing businesses and financial institutions that

deal in interest (riba), alcohol outlets, gambling places, tattersalls ,

prostitution and escort agencies, dealing in butchery which retails prohibited

meats (for example pork and non Halaal meats and products), retail of

musical instruments and records, cassettes CD/s etc, certain film and dvd

rental outlets, etc.

We need to reinforce the submission that , lack of utility of properties on the

basis of religious rights must be recognized as a limiting factor to valuations

of property, especially in the  light of  the provisions of Section 15 of the

Constitution (Freedom of religion, belief and opinion clause). Please

understand that the right to religious freedom should  be extended also to

the mechanisms, institutions and assets of a religious body. Our submission

specifically relate to Islam and we believe that other religions may have their

own views on this aspect and it remains their prerogative to advise you

accordingly, of the nature and extent of the rights and privileges they seek.

There seems to be an acknowledgement on the part of Government to

recognize religious freedom and a lack of unnecessary interference with

these rights, which the Muslim community appreciates.

We omitted to point out that, very often Mosque trustees are required to attend accident scenes where foreigners are killed and to make arrangements for the burial of these people. These costs are also borne by the Mosques and therefore, this is an additional source of expenditure which is recovered from the rentals.

Please revert to us as a matter of urgency as to the steps to be taken in addressing this issue. If Government is unable to accede to the request to exempt the whole of the rates in regard to properties owned by a mosque, for instance the shops and buildings, then, as they are making a relevant contribution to the religious and social needs of the community they serve, a substantial  portion can be exempt on a sliding scale that ought to be negotiated and implemented to the Municipalities.

Yours faithfully

_____________________

RASHID PATEL

Attorneys – Administrator of Estates – Commissioner of Oaths -Constitutional Litigation Certificate (Unisa ) Local and Provincial Government Certificate (Unisa ) – Immigration Agent – Land Claims and   Environmental Law – Trade Marks and Competition Law – Insolvency and Labour Law  Practitioner,  Mediation/Arbitration (Accredited)

 —————————————————————————————————————————————

———————

P.O. Box 849                                   Tel:27+036+ 3523827  Cel:0827483434

19 Drummond Road                        A/H 036-3523802

ESTCOURT ,3310                             Fax:27+036+ 3523830 (Answering Machine)

(Admitted as an Attorney in Lesotho)

Our Ref: Mr Patel    Your Ref:             Date : 12/9/2009

To: Municipal Manager

Municipality

To: Valuer

To:  Minister Cooperative Governance and Traditionbal Affairs Ministry of Cooperative Gvernance and

Traditional Affairs

Dear Sir

re: Property Rates Act: Estcourt Mosque and Madressa Trust :Siraatul Haq

Trust

We refer to the above matter and confirm that we lodge an appeal against the valuation of the properties owned by the Mosque /Masjid (place of worship) itself in essence, the further submissions made in this letter, should also apply to all Mosques, places of worship and Islamic institutions, owning properties. In particular, it is our request that these institutions be exempt from :-

1. Payment of Rates
2. Valuations of the property , especially in regard to properties owned by an Islamic Institution and the Mosques in the Country
3. We also request that no economic valuations be allocated to Muslim owned Islamic Institutions and in particular the Mosques. For the reasons explained, you will understand that, places of worship or Islamic institutions, are not predominantly reward or profit orientated. Therefore, any economic activity aligned to these properties is linked solely to sustainability of the Mosques or the institution itself.

We shall digress for a moment to deal with an explanation as to why and how property is acquired by Mosques and Islamic institutions and in essence, what their functions are, so that you will understand the reasoning for our suggestions. If necessary, we would require the Honourable Minister to investigate the amendment of the MPRA to the extent that our suggestions are given effect to. As the new Act has dawned upon us now, it would be appreciated if there is an urgent investigation of this aspect.

The MPRA has as its principle objects :-

1. To implement a fair system of exemptions and rebates through the rating policies of the municipalities;
2. To exclude certain properties from being rated.

In line with these principles, the Honourable Premier Dr Zweli Mkhize has expressed a noble opinion by supporting the view that places of worship ought to be exempt from payment of rates. Our point of departure, whilst we align ourselves to this proposition, is that of the breadth of such concession should also extend to properties owned by places of worship and in particular, the Islamic institutions which promote education , training and religious instructions.

Please consider the following , from the perspective of Islam:-

1. Almost all property given to a Mosque or Islamic institution, is given as  a gift or a form of charity for the specific purpose of same being used ;

2. The purpose stipulated is for a religious or noble purpose, sanctioned by the Shariah (tenets of Islamic Law);

3. The method of disposal of the property is defined as Waqf which means “tying up of the property in perpetuity” [i] It also means and involves the dedication of a property or giving it away in charity for the benefit of a good purpose or other religious or charitable motive.[ii]

4. The effect of this disposition is that, the property is prevented from becoming the property of any third person. The waqf property therefore, belongs to Allah (God) and no human being can alienate it for his own purpose. The first mosque so established was the mosque of the Prophet namely, Masjid al Nabawi. This principle of acquisition continued (referred to the establishment of Awqaf)  where for instance, the Caliph had bought a well and made it a trust property for the charitable use of all , to relieve them of the difficulties, for instance, imposed by the Jews who restricted access to water. This then becomes accessible for communal use. The mosque mentioned, is still in existence for the benefit of the public since 1400 A.H.

5. It has been mentioned by the Prophet Muhammed (PBUH) that there are 3 things that a person can leave behind which will benefit that person after death. Amongst those are: the establishment of welfare institutions for example a well, canal or building of a hospital, educational institution, old age home, etc. It is imperative that Municipalities and Government realize the importance and the Fundamental reasons for properties for instance, being established by Muslims so that you would perhaps understand our reasoning as to why we suggest a total exemption from payment of rates of the properties in issue.

6. Some examples from the traditions of the Prophet Muhammed (PBUH) that support these principles are as follows:-

6.1    Once the Caliph Umr bin Khattab (RA) bought a land in Khyber and went to the Prophet (PBUH) and sought guidance as to make the most pious use of it. The Prophet (PBUH) replied:-

“ Tie up the original property and devote the usufruct to human beings which

  is not to be sold or made the subject of gift or an inheritance. Bring the

  produce to your children, or relatives and the needy in the path of Allah.”[iii]

6.2    Once a person intends and transfers ownership of a property, that signifies an extinction of the appropriator’s ownership in the thing dedicated.[iv] Although in the literal sense Allah (God Almighty) does not own or possess the property so disposed , for the purpose of simply understanding this complex issue which involves intricate explanation which a non Muslim reader of this letter may not fully understand, we simplify this explanation so that you may understand the purport of the acquisition in the context of this letter.

The detention of the thing or property in the ownership of Allah is so that, its profit should be made use of for the good of mankind from beginning to the end.[v]

6.3    In effect then, where property still remains in the name of a particular person, who may have been the original acquirer of that property, once the intention has been made to relinquish ownership as a Waqf property, the owner loses control, possession and ownership of the property, although he/she may still be a registered owner thereof. That person cannot bond, sell, lease or benefit from the fruits off that property-it has no worldly economic value thereto. His rights thereto has been extinguished .

6.4    The ‘bequest’ of any property for waqf is generally, irrevocable. This supports the submission that Muslim could not disguise an acquisition to escape paying rates, as this constitutes a grave transgression.

6.5    The property is constituted by long use or immemorial use. Very often, the dominant use of a property owned by the Muslim community, establishes the function of that property and is one of the features of a property which in all probability, has been given on this basis.

6.6    The Quran disallows waqf property from being used for illicit means or those which are in conflict with the Shariah. Whilst the Shariah allows for private and public waqf, that is not relevant for this discussion.

6.7    No part of a mosque or waqf property can change its object and if the primary or intermediary object of a waqf fails or is changed, then it will constitute a grave offence .

7. In regard to the mosque, clearly there is no problem, being a place of worship, it is exempt from rates. In regard to the properties owned by the mosque or an Islamic Institution, note needs to be taken of the following factors:-

7.1    It is extremely difficult to pay the expenditure of a mosque which run into

thousands of rands per month. Due to the economic downturn, the limitation in charitable contributions by community, trustees and management of the mosques and institutions need to create some form of funding.

7.2    Some expenses are: water and lights, maintenance, salaries for Imaams,

teachers, caretakers, security, monies for the poor, infirm, those with

disabilities, students and scholars bursaries, creating institutions of learning

and also creating employment for the community. [vi]

7.3    To ensure a constant source of revenue, mosques and institutions , as in the present case, would have a few buildings which are let rent free to the Imaams, the Muezzin (one who calls to prayer, teachers) , the shops are leased on a minimum rental which is not market related rentals. The rentals are determined to allow the survival of the businessmen and also to create some form of revenue.

7.4    Mosques and Islamic institutions need to be self sustaining as there is no Governmental support and none is sought from Government, to alleviate unnecessary burdens on the Treasury. The Muslim community prefers to

maintain its own institutions from Halaal income.

7.5    The buildings in issue have not been developed with aesthetic appeal in

mind, they are very old and are in a reasonable state of repair. The income generated, is not market related and to increase rentals to accommodate for payment of rates, will result in the tenants leaving the building, because all are cash strapped. Because the principle aim of letting is to acquire some income and to generate business amongst the community, rentals are not commensurate with the size and location of the buildings. There is little or no significant trade at this end of Albert Street in any event.

All the flats are exclusively for use of staff and generates no income

whatsoever. The water and electricity usage is also paid by the trustees

from donations and the insignificant income that is received from the shops

at the bottom of the building.

7.6    The buildings are occupied generally by foreigners, whose security of tenure

is dismal and the arte of vacant shops, arrear rentals and non payment is common practice and a regular occurrence.

7.7    If rental capitalization method is used, then the return is insignificant.

Properties across these shops have been divided to increase the incidence

of letting to smaller informal types of business-dressmakers, hairdressers .

there are no anchor tenants and the size of the shops in any event, will not

attract branded stores from leasing these properties. In fact, the location,

general appearance and the restricted types of trade permitted in terms of

the Shariah, has the effect of decreasing the full potential of the buildings, if

compared to any other property in town. This is an ‘aggravating’ factor that

must be taken into    account (restricted utility) when assessing valuations of

mosque and Islamic institution properties. For instance, these properties

cannot be let to interest bearing businesses and financial institutions that

deal in interest (riba), alcohol outlets, gambling places, tattersalls ,

prostitution and escort agencies, dealing in butchery which retails prohibited

meats (for example pork and non Halaal meats and products), retail of

musical instruments and records, cassettes CD/s etc, certain film and dvd

rental outlets, etc.

We need to reinforce the submission that , lack of utility of properties on the

basis of religious rights must be recognized as a limiting factor to valuations

of property, especially in the  light of  the provisions of Section 15 of the

Constitution (Freedom of religion, belief and opinion clause). Please

understand that the right to religious freedom should  be extended also to

the mechanisms, institutions and assets of a religious body. Our submission

specifically relate to Islam and we believe that other religions may have their

own views on this aspect and it remains their prerogative to advise you

accordingly, of the nature and extent of the rights and privileges they seek.

There seems to be an acknowledgement on the part of Government to

recognize religious freedom and a lack of unnecessary interference with

these rights, which the Muslim community appreciates.

We omitted to point out that, very often Mosque trustees are required to attend accident scenes where foreigners are killed and to make arrangements for the burial of these people. These costs are also borne by the Mosques and therefore, this is an additional source of expenditure which is recovered from the rentals.

Please revert to us as a matter of urgency as to the steps to be taken in addressing this issue. If Government is unable to accede to the request to exempt the whole of the rates in regard to properties owned by a mosque, for instance the shops and buildings, then, as they are making a relevant contribution to the religious and social needs of the community they serve, a substantial  portion can be exempt on a sliding scale that ought to be negotiated and implemented to the Municipalities.

Yours faithfully

_____________________

RASHID PATEL