Al-Qalam 
The South African Muslim Network has welcomed the Supreme Court of appeal judgment saying it isn’t just a victory for the Muslim community, but a victory for religious freedom and for tolerance, writes Nabeelah Shaikh.
The call of the azaan at the Taleemuddeen Islamic Institute in Isipingo Beach – which was silenced by a High Court order after a complaint from a neighbor – is once again sounding audibly across the neighbourhood, thanks to a ruling by the Supreme Court of Appeal.
It was a victory for the Isipingo Beach madrasah when the Supreme Court of Appeal recently overturned a ruling, muting the Azaan in the community.
On November 24, the SCA overturned a controversial Durban High Court ruling which interdicted Taleemuddeen Islamic Institute from sounding the Azaan, so that it could not be heard from a neighbour’s property.
The interdict application was brought by Isipingo Beach resident Chandra Giri Ellaurie more than two years ago.
In August 2020, the high court ordered that the sound of the call to prayer, generated from the madrasah’s immovable property should not be heard at Ellaurie’s property.
The interdict was initially granted by Durban High Court Judge, Sidwell Mngadi, who said at the time, that while he acknowledged it was an “extraordinary remedy”, Ellaurie had established a right to the use and enjoyment of his property. He then ordered that the Madrasah was to ensure its calls to prayer aren’t audible within Ellaurie’s home.
But the SCA found that Judge Mngadi was wrong in his ruling, overturning the interdict.
SCA Judge Nambitha Dambuza ruled that Ellaurie’s application for an interdict failed to meet the legal requirements for the relief he sought.
The appeal to the SCA revolved around the question of whether noise emanating from a neighbour’s immovable property is actionable in law.
In a media statement, the SCA outlined the facts of the matter stating that Ellaurie lived about 20 meters from the madrasah’s property in Isipingo Beach. It said, on its property, the madrasah conducted a school for Islamic studies.
There was a mosque located on the madrasah property.
“Every day, five daily prayers were performed in the mosque. Each prayer was preceded by the Azaan which was delivered by a Muadhin, to remind people of the Islamic faith to come to prayer. Prior to the interdict application, various forms of intervention were undertaken to attempt to resolve the dispute between Ellaurie and the madrasah. These included an unsuccessful attempt by the madrasah, the eThekwini Municipality and the city, to mediate in 2003, and another mediation attempt by the South African Human Rights Council,” the SCA’s media statement regarding the judgment read.
Application
The SCA found that contrary to the approach by the high court, it was, in fact, Ellaurie who had to satisfy the requirements for the interdict sought, and to prove to the court, in particular, that the interference with his comfort was unreasonable.
“The madrasah had no responsibility to show that the Azaan was essential to its religious practice, as the high court had found. The SCA held that Mr Ellaurie’s application for an interdict failed to meet the legal requirements for the relief he sought,” read the statement.
Dambuza said the SCA found that although Ellaurie explained that the first of five daily Azaans was at 03h30, he did not explain what exactly the nature and level of the noise was, and how long it lasted in each instance.
He said Ellaurie tendered no evidence of what a reasonable Azaan would be in the circumstances. Instead, the evidence tendered was that of his profound dislike of Islam.
“The SCA found further that apart from failing to provide evidence of unreasonable interference in the circumstances, Ellaurie placed himself within the realm of a specially or extraordinarily sensitive complainant. The reasonableness of the Azaan could not be judged by his standards, the essence of which was a deep aversion to the Islamic faith. It had to be judged by the standard of an ordinary person living in Isipingo Beach. On this, the SCA found that there was, at best, a paucity of evidence. Notably, the SCA found that the high court erred in its conclusion that the Constitution provided no guarantee for religious practices,” said Dambuza
He highlighted that the Constitution did not only provide protection for different religious beliefs and affiliation, but it also guaranteed the freedom to observe and manifest the different religious beliefs. The SCA found that Ellaurie’s convictions had no regard for the consideration that the reasonableness assessment had to take into account and balance the countervailing constitutional rights of the respective parties.
In a statement issued to the community, leadership at the madrasah said the overturning of the judgment was a victory for Muslims.
“The Madrasah takes this opportunity to express its heartfelt gratitude to the legal team that undertook a great amount of time and effort, to fight this case, as well as those who have assisted in any way; with their duas, suggestions and financial assistance,” they said.
The South African Muslim Network has welcomed the SCA judgment, saying it isn’t just a victory for the Muslim community, but a victory for religious freedom, for tolerance and for reasonableness for everybody in South Africa.
“The original judgment was a no brainer. It’s a relief but not surprising that the SCA dismissed the first judgment. If the SCA didn’t dismiss that judgment, it would have been extremely problematic. That would have opened the door to all sorts of nefarious agendas. Any extremist would have used that judgment to object to absolutely anything, including noise from football matches or concerts,” said SAMNET Chairperson, Dr Faisal Suliman.
Suliman says this case also highlighted that one’s personal prejudice cannot be used to inconvenience an entire religious community and that the court’s also should not be used for this purpose.
“Ellaurie was an unapologetic Islamophobe. He stated very clearly, unequivocally even in court, his dislike for Islam and he did not even apologise or hide away from that,” said Suliman.
