Mosque must appeal call to prayer ruling

THE high court in Durban has granted an interdict against a mosque stopping its call to prayer ( the Athaan or Adhan), because it can be heard from a house across the street.

The neighbour had complained that the noise deprived him of the enjoyment of his property and interrupted his peace and quiet.

The court found that the constitutional right to freedom of religion did not guarantee the practise of religion in the form of the call to prayer. And, as the neighbour is entitled to enjoy the use of his residential property, others, like the mosque, must respect this right.

Although the ruling and order were directed at the specific mosque in question, it sets a precedent. Another court can easily rely on this judgment in a future case.

In my view the court got it wrong for the following three reasons: firstly, it upheld the neighbour’s right to the use and enjoyment of his property without any consideration of the reasonableness of the alleged disturbance. In other words, the court did not properly interrogate whether the mosque exceeded its powers and if it acted reasonably in the circumstances.

Secondly, it ignored the fact that those being called to prayer also enjoy a constitutionally protected right to practise their religion freely. Thirdly, it did not consider the noise control regulations in force in the city.

As a general principle of law in South Africa, a property owner has the right to freedom to enjoy their property free from a noise nuisance. But, like all rights, this right is not absolute.

Property owners have a duty to exercise their rights within the normal and acceptable limits of reasonableness, and not to infringe on other owners’ right of enjoyment of their property. South African neighbour law also requires property owners to tolerate a degree of nuisance from their neighbours.

Religious activities such as a muezzin calling from a mosque and the ringing of church bells on Sunday mornings are ways in which believers express and practise their beliefs.

These practices form part of the right to freedom of religion, protected under section 15 of the Constitution. It should be read together with section 31, which guarantees the right of a person belonging to a religious community to enjoy and practise her religion.

The policy of the Tshwane municipality is a good example of how the Athaan and ringing of church bells should be handled. It states that such activities should be seen as socially acceptable activities, which must be accepted by all as a healthy aspect of our urban community life.

Importantly, these activities must still be conducted reasonably. The noise levels must not be excessively high or take place at unreasonable times, such as at night. The court ignored these requirements.

As both the right to enjoy one’s property and the right to freedom of religion are not absolute, a fair balance has to be struck between them.

The court did not properly balance the various rights applicable in this case. Neither did it properly determine to what extent the mosque’s religious exercise limited the neighbours’ property rights.

Given the judge’s adverse implications for the Muslim community and other religious institutions faced by noise complaints, the mosque should appeal against the ruling – all the way to the Constitutional Court.