Judge was wrong to mute calls to prayer, says mosque association as it heads to appeal court

Lawyers acting for an Isipingo Beach madrasas, which was directed by court to “mute” its calls to prayer after complaints by a neighbour, are attempting to appeal the controversial ruling.

Last month's order by Durban High Court judge Sidwell Mngani was made at the behest of self-confessed Islamophobe Chandra Giri Ellaurie, who complained that the call “gives the suburb a distinctly Muslim atmosphere”.

The judge said: “I am aware that an interdict is an extraordinary remedy which is not granted lightly. The applicant has, on a balance of probabilities, established a right to the use and enjoyment of his property. The interference constitutes an injury and a continuous injury.”

He ordered the Madrasah Taleemuddeen Islamic Institute to ensure the calls to prayer “are not audible” within Ellaurie’s home, which is two doors away.

Judge 'was wrong'

In a written application for leave to appeal the ruling, lawyers acting for the madrasas said  Mngadi was wrong for several reasons, and the matter needed to be considered by the Supreme Court of Appeal  “both in the interests of justice and the public interest”.

They said while he correctly cited that the constitution guarantees freedom of religion, he went on to state it does not guarantee “practice or manifestations” of religion.

“The judge was wrong. The call to prayer is part and parcel of the freedom to practise one's religion and should not have been differentiated in this way.

“The judge did not accord appropriate weight to the right to religion, and erred in according greater weight to the applicant's undisturbed use of his property rather than the madrasah’s right to freedom of religion and that of its pupils and members.”

The lawyers argued there were compelling reasons why these issues needed clarity “in the interests of justice and the public at large”.

Judgment has 'serious consequences'

“The effect of the judgment is to stifle the madrasah’s ability to issue calls to prayer and thus to undermine its religious and associated rights. The judgment and order has serious consequences. If they were to be applied generally, they would undermine the right of religious institutions and associations to manifest their religious beliefs simply because they are considered a nuisance by neighbours.”

They said the property in question was zoned for use as a madrasas and the call to prayer was issued five times a day, for a few minutes each time, without any amplification.

“A property owner has no entitlement to prevent a neighbour from conducting lawful activities. Other neighbours in proximity  have confirmed the call to prayer is not a nuisance.”

They argued that another court would rule that Ellaurie had not “demonstrated the level of tolerance” required in a constitutional democracy, but had instead displayed bias and intolerance for the Islamic faith.

They said Ellaurie’s right to use and enjoy his property was subject to limitations.

He had also not alleged that the sound level permitted by municipal bylaws was being exceeded.

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