Al-Qalam 
There is hope that the ban on the Azaan at Madrassah Taleemuddeen can be overturned through a legal process underway, writes Azra Hoosen.
A legal team acting for Madrassah Taleemuddeen in Isipingo Beach this week filed papers with the Supreme Court of Appeal (SCA) in Bloemfontein to overturn a Durban High Court that ordered the muting of the Azaan over the loudspeaker.
The lawyers are appealing against the High Court judgment that ruled in favour of a Hindu resident, Chandra Giri Ellaurie, who in 2020, complained about the amplification of the Azaan in his neighbourhood at Isipingo Beach.
Judge Sidwell Mngadi had passed a judgment that stated that the Madrassah had “to ensure its call to prayer is not audible inside a neighbour’s house across the street.”
In June 2021, Judge Mngadi refused the Madrassah’s leave to appeal, but the Legal team petitioned the SCA in Bloemfontein and the leave to appeal was granted.
In the appellants heads of argument – attorney Ashraf Parak and Advocate Rafik Bhana SC – stated that Ellaurie’s religious intolerance was made clear from the very basis of his objections in his founding affidavit, wherein he stated that he is of a Hindu background and considers the religion of Islam “offensive” and its “manifestations undeserving of Constitutional protection.”
The appellants points were predominantly based on the legality issues and on the failure on the part of Ellaurie to meet the relevant tests for the ‘nuisance’ which he alleged to have been caused by the Madrassah. It was made clear that Madrassah Taleemuddeen does not use speakers to amplify the Azaan from the outset.
Ellaurie’s complaint did not pertain to the amplification of the Azaan but the ‘nuisance’ of the religious practice. “The root of Mr Ellaurie’s complaint was not about the ‘noise level’ but rather about how the Azaan represents a religion, which he finds offensive and it has a religious meaning that he considers repugnant,” Parak told Al-Qalam.
The heads of argument pointed out that “the High court failed to conduct the balanced and/or reasonable tests in the initial case and Ellaurie merely had to prove interference and nothing more.”
Teachings
The document highlighted Ellaurie’s complaint where he said that the Azaan is a “foreign sound” which “bears down on him” and gives “a distinctly Muslim atmosphere to the area”. However, his issues go far beyond just the Azaan. The appellants argument outlined the sections of Ellaurie’s affidavit that pinpointed some of his many dislikes of Islam, such as a section titled, “Disturbing information from the Koran”, in which he described the “observations of Muslims he made over the years.”
He further listed the offensive teachings in the Quraan, which he dubbed as “a dirty tricks campaign”, but it did not end there. The document stated that Ellaurie also criticised the Prophet Muhammed (Peace be upon him), where he said that “Muhammed was not a messenger of God and therefore finds objectionable the line from the Muslim call to prayer that is broadcast from the Mosques: ‘I bear witness that the Prophet of Muslim religion is the messenger of GOD’.”
The points of argument emphasised that “Mr Ellaurie did not make out a case that a reasonable tolerance standard had been exceeded” and his affidavit clearly revealed that his core complaints stem from his “ideological objections to the Islamic Faith” – rather than the “audibility of sound waves”.
The appellant stressed that “an important and foundational Constitutional right was impermissibly limited by the interdict as the Azaan is an integral practice for Muslims and is, in and of itself, an act of worship, which is not only a call to prayer but an affirmation and manifestation of the religious beliefs of Muslims. Consequently, it is unarguably within the Constitutionally guaranteed right to freely practice one’s religion.”
The document mentioned how “the limitation of the right through the interdict serves to promote Ellaurie’s bigoted views and insulates him from any exposure to a religious practice of other members of his community, which he ought to be tolerant of in our diverse society.”
After failing to “ban Islam” in the High court – a request Ellaurie now denies – he asked the SCA to reconsider his request to kick the Islamic institution out of the area and if this is not possible, he further requested that they prohibit the Madrassah from purchasing more properties in the area and from developing its current properties.
The legal team handling this matter believes that this case will not stand as a precedent for other cases against the Azaan as this is a neighbour law issue regarding noise interference, whereby there is no amplification of the Azaan.
Advocate Bhana said he was hopeful for a positive outcome. He anticipated the hearing would be heard within a month.
Until then, the Madrassah is still prohibited from calling out the Azaan.
