Durban - The Madrasah Taleemuddeen Islamic Institute in Isipingo Beach will appeal against a Durban High Court judgment that has limited its right to issue the Muslim call to prayer after a resident said it disturbed his peace and enjoyment of his property.
Judge Sidwell Mngadi ruled on Friday that the Madrasah must ensure that calls to prayer made from its property are not audible within the buildings of Chandra Ellaurie’s property some 20 metres away.
Ellaurie sought a court interdict to silence the call to prayer, to shut down the institution’s operations in the residential neighbourhood and sell its property to the state or to a non-Muslim entity. The Madrasah had opposed the granting of the relief sought, contending the call to prayer was not amplified and no other neighbours had complained.
The second respondent, the eThekwini Municipality, did not oppose the application.
The Madrasah houses on its property a teaching institution for Islamic religious studies with about 340 students, a mosque and accommodation for staff and students. Another building is located between the Madrasah and Ellaurie’s home.
In his judgment, Judge Mngadi said the applicant, who is Hindu, was “unashamedly opposed” to the Islamic faith propagated by the Madrasah. Ellaurie had told the court that the call to prayer was made five times a day, the first call at 3.30am.
Judge Mngadi said he had described it as a “foreign sound” which invaded his private space. He said Ellaurie had contended that the call to prayer gave the suburb a “distinctly Muslim atmosphere”.
“The applicant states that, in particular, relating to the drastic relief sought in the banning of the Madrasah from the area, he was acting on behalf of himself as well as in the public interest.
“However, he had no answers when asked which public he was acting on behalf of, or who had given him authority to act. In my view, there is no evidence as to which members of the public share the applicant’s sentiments relating to Islam When the applicant was asked what the Madrasah had done to him that entitles him to ask that it be banned from the area, he had no answer. He did, however, say that he wanted the area to be restored to its former glory.”
Judge Mngadi said Ellaurie had no locus standi (right) to seek the order banning the Madrasah from the area and he had not made a case for it. He ruled that freedom to practise religion unhindered was enshrined in the Constitution regardless of whether beliefs could be proved or not.
“The applicant’s attempt to have the Madrasah banned on religious doctrinal grounds is, in my view, doomed to fail there are other Muslim mosques in lsipingo Beach. To ban only the Madrasah is a futile exercise.”
Judge Mngadi said the Madrasah had not contended that it was “essential, in order to practise its religion, that the call to prayer be made in such a way that it interferes with the applicant’s use and enjoyment of his private space, or that the current interference interferes least with the applicant’s private space”.
He said the applicant had to prove interference and nothing more.
“I am aware that an interdict is an extraordinary remedy, which is not granted lightly. The requirements necessary for a final interdict are a clear right, an act of interference and no other remedy. The applicant has, on a balance of probabilities, established a right to the use and enjoyment of his property.
“The proximity of the applicant’s property to that of the Madrasah and the overwhelming evidence of the making of the call to prayer and the purpose thereof, create probabilities that favour the applicant’s version that the call to prayer interferes with his private space.
“The interference constitutes an injury and it is a continuous injury,” Judge Mngadi ruled.
The Madrasah’s attorney, Aslam Mayat, said yesterday he had been instructed to appeal against the ruling.
“It doesn’t make sense because we have a right to practise our religion, it is a constitutional right enshrined in the Bill of Rights. That right can only be limited in terms of general application, it can’t be one person, and in this case it is only against my client,” he said.
He said limiting a right should not offend the dignity of a group and had to be reasonable.
“There are municipal by-laws that you can’t exceed and he made no objection that we exceed the sound level. His sole objection is that he doesn’t want to hear it because he finds Islam offensive. So then anyone can say the same about church bells or chanting in a temple, no matter how silent it is,” he said.
SA Muslim Network chairperson, Dr Faisal Suliman, said it was a “poor judgment, particularly because the call to prayer was not amplified”.
“The applicant produced no scientific proof, sound studies or the testimony of any sound engineer or recordings to show that the call to prayer was audible at a level in his house that would constitute a legal breach of his rights, or a ‘nuisance’ as he referred to it,” Suliman said.
“The call to prayer is not a nuisance. We believe this judgment needs to be appealed and will be, up to the Constitutional Court if necessary.” The ruling had implications for church bells, mosques and temples, he said.
The Mercury