Judge dismisses mosque’s appeal

JUDGE Sidwell Mngadi has rejected an application to appeal his judgment on the Muslim call to prayer, or Azaan.

The judgment was delivered in the Durban High Court on March 26 although the written judgment has yet to be released.

The matter began early last year when Chandra Giri Ellaurie brought a court application against the Madrasah Taleemuddeen Islamic Institute.

Ellaurie, an electrical engineer who has worked in the US and Canada, lives in Isipingo, about 20m from the madrasah.

He said the Azaan infringed on his right to dignity and the madrasah’s call to prayer should not be heard beyond the boundaries of the madrasah.

The madrasah opposed the application. It described Ellaurie as having a personal antipathy towards Islam and Muslim people.

In August last year, Judge Mngadi ruled in favour of Ellaurie and ordered that the Azaan should not be heard in Ellaurie’s property.

Judge Mngadi said that under Section 16 of the Constitution, everyone had the right to freedom of conscience, religion, thought, belief and opinion. He said Ellaurie was entitled to enjoy the use of his residential property.

The madrassah, via attorney Ashraf Paruk, appealed the judgment and order.

In an application, the madrassah said the Azaan denoted the building was a place of prayer and was important in calling people to pray.

“Prayer is an important part of Islam and it is obligatory that Muslims pray five times per day. The Azaan is an announcement of the time of prayer, appealing to Muslims to pray and inviting them to congregate for the obligatory prayer.”

The application said the Azaan was integral in Islam as it was the first thing recited in the ear of a newborn.

It added there was widespread reaction to the judgment from South Africans, academic commentators and the international community and that was reason enough for the application to be accepted.

The appeal argued that while Judge Mngadi had mentioned the right to freedom of religion, he had failed to consider how the right might limit Ellaurie’s property rights.

“Instead, the freedom of religion concern is dismissed with the nonsensical statement that the call to prayer ‘is a manifestation of the Islam religion, it is not Islam itself’. (It is nonsensical because, as the court itself explained, freedom of religion includes the right to manifest religious beliefs.)

“If the court had done more than pay lip service to the right to freedom of religion, it could not possibly have granted the interdict.”

It said the order sought by Ellaurie constituted an interdict against an action, which he alleged constituted a nuisance (Azaan)

“We submit that the learned judge failed to apply the established common law principles of the law of nuisance, and applied the incorrect legal test. The judgment holds that in order to succeed in securing an interdict, ‘the Applicant must prove interference and nothing more’.

“The property in question is zoned for use as a madrasah. In this regard, we submit that the learned judge failed to consider that the madrasah operates lawfully in accordance with the zoning requirements granted by the eThekwini Municipality.”

The application argued that Ellaurie needed to show why listening to the Azaan for short periods, a few times a day, would be unreasonable to tolerate.

“Not only did the applicant make out no case in this regard, but more fundamentally the learned judge failed to even consider or reply to this part of the test required to establish nuisance.

“This failure in and of itself demonstrates that another court applying the full and complete test to establish nuisance would very well come to a different conclusion.”

The madrassah argued that Ellaurie was opposed to the Azaan because it gave the suburb a Muslim atmosphere and attracted those of the Islamic faith.

“Another court would find that Ellaurie had failed to demonstrate that the unamplified call to prayer constitutes a real or material intrusion on his rights. There is also reasonable prospect that a court of appeal would find that Ellaurie failed to exercise a level of tolerance towards the call of prayer.”

In a counter-application, Ellaurie, who is representing himself, said he was a peace-loving person who enjoyed music, prayer and meditation.

He said the Azaan was an individual, personal and private choice or duty to pray, which must not be imposed on the will of the majority, or non-believers within its precinct.

Ellaurie said the right to freedom was important for a constitutional democracy, which was based on human dignity, equality and freedom.

“The value of human dignity in our constitutional framework cannot be doubted. The Constitution protects our human dignity as a means to contradict our past history where the human dignity of vulnerable South Africans was routinely and cruelly denied.

“The value of Ellaurie’s human dignity has been offended by the madrasah’s practice of shouting its ’Call to Prayer’, which the court correctly found to be a manifestation of the Islamic religion.”

He described the Azaan, which is heard five times a day, as a shouting human voice to notify others to pray.

“Current technology provides several more efficient, practical and effective alternatives to shouting this call to prayer.”

He said there was no reasonable possibility that another court would come to a different decision. “There are no other compelling reasons as to why leave to appeal should be granted.”

After hearing the matter, Judge Mngadi denied the madrassas application for leave to appeal.

Ellaurie said he was pleased with the court outcome. “It has not been easy for me as I represent myself alone in the cases whereas there are attorneys and advocates, who are well-equipped, acting on the other side. However, I am pleased with the outcome.”

Paruk told the POST this week that they intended to take the matter further.

“We will approach the Supreme Court of Appeal in Bloemfontein.”