SCA overturns court order to silence Islamic call to prayer
The court says the main principle of neighbour law is that while everyone has a right to undisturbed use and enjoyment of their property, such a right is not unlimited
The Supreme Court of Appeal (SCA) has overturned a controversial Durban high court ruling directing an Isipingo Beach madrasah to “mute” its azaan (call to prayer) so they could not be heard from a neighbour’s property.
Judge Nambitha Dambuza, writing for the court, said the neighbour, Chandra Gigi Ellaurie, who secured the interdict, had been motivated by his dislike of Islam.
He had set out numerous reasons the madrasah should be “driven out of Isipingo Beach”.
“Most … reveal his abhorrence of the Islamic faith,” Dambuza said.
In granting the interdict, Durban high court judge Sidwell Mngadi said while he acknowledged it was an “extraordinary remedy”, Ellaurie had established a right to the use and enjoyment of his property. The call to prayer was an “interference which constituted a continuous injury”, he said.
He ordered the Madrasah Taleemuddeen Islamic Institute to ensure calls to prayer “are not audible” within Ellaurie’s home, which is two doors away.
But the SCA said Mngadi was wrong.
“Of relevance to the noise nuisance claims is Mr Ellaurie’s complaint that the azaans invaded his personal space and that they happened at an ‘unearthly time’, the first being around 3.30am in summer,” Dambuza said.
“He complained that they gave a distinctly Muslim atmosphere to the area ... he lamented the growth of the Muslim community ... he believed Islam promotes racism, bigotry and sexism ... and pays no regard to the constitution.”
The judge said the main principle of neighbour law was that while everyone had a right to undisturbed use and enjoyment of their property, such right was not unlimited.
“Mutual tolerance is a civic value that is restricted by the legal yardstick of reasonableness. Mr Ellaurie’s application for the interdict failed to meet the legal requirements for the relief he sought ... he had to satisfy the court that the interference with his comfort was unreasonable,” Dambuza said.
“He tendered no evidence of what a reasonable azaan would be ... instead the evidence tendered was that of his profound dislike of Islam. In fact, he would rather have the azaan banned from Isipingo Beach altogether.”
Dambuza said Ellaurie had described the call to prayer as a “foreign sound that invades his private space” and he could be classified as an “extraordinarily sensitive complainant”.
“The reasonableness or otherwise 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 there was, at best, a paucity of evidence.”
The judge said contrary to Mngadi’s findings, the constitution guaranteed the freedom to observe different religious beliefs and this submission had been well made on behalf of the madrasah.
She ordered that Ellaurie pay the costs of the application, saying “his motivation for pursuing litigation was not the advancement of constitutional justice, but rather his dislike of Islam”.
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