KZN madrasah appeals High Court order muting call to prayer

The right to freedom of religion and the question of how far it extends will come under the spotlight in the Supreme Court of Appeal (SCA) on Monday, when a KwaZulu-Natal madrasah tries to overturn an order muting the call to prayer.

In August 2020, the Durban High Court ordered the Madrasah Taleemuddeen Islamic Institute to ensure the call to prayer – or azaan – couldn’t be heard from inside its neighbour, Chandra Ellaurie’s, home.

In court, Ellaurie – who, as the judge put it, was “unashamedly opposed to the Islamic faith” – argued Islam was “a false religion”.

But the judge rubbished this line, saying there was “no doubt” that Islam was a religion.

Mngadi also dismissed a bid by Ellaurie to get the madrasah – which he said had turned Isipingo Beach, in South Durban, into “a Muslim enclave” – banned from the area.

Mngadi said Ellaurie’s bid to ban the madrasah on religious doctrinal grounds was “doomed to fail”.

“Further, it is common cause that there are other Muslim mosques in Isipingo Beach. To ban only the madrasah is a futile exercise,” he said.

The judge found, however, that Ellaurie had made out a case against the calls to prayers made from the madrasah.

“The proximity of [Ellaurie’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 [Ellaurie’s] version that the call to prayer interferes with his private space,” he said.

“[He] seeks to put a stop to the interference with his private space. It could be argued that he moves away from the area, but in my view, this is extreme and does not constitute an alternative legal remedy. There is no other adequate alternative legal remedy available to [him].”

But the madrasah says the case is, in fact, about religious intolerance.

In its heads of arguments filed with the SCA, the madrasah insisted Ellaurie’s problem wasn’t that the call to prayer was a “nuisance”. Rather, its counsel argued that he, on his own version, “considers the Islamic religion offensive and its manifestations not deserving of Constitutional protection”.

“It is clear that the true basis of the objection was no more than religious intolerance,” they said.

While he acknowledged the constitutionally-enshrined right to freedom of religion, Judge Mngadi in the High Court found it didn’t guarantee practice or manifestations of religion, such as the azaan.

The madrasah argued, though, that “a guarantee of freedom of religion is empty and meaningless if it doesn’t carry with it the guarantee to practice one’s religion or the right to carry out the manifestations of one’s religions”.

Its position was that the interdict represented an unjustifiable and impermissible limitation of constitutional rights.

Its counsel described the azaan as “a cornerstone of religious practice for Muslims”.

“The azaan is not only an announcement of the time of prayer, appealing to Muslims to pray and inviting them to congregate for the obligatory prayer, but the utterance of its words is an affirmation and manifestation of the religious belief of Muslims.The azaan is so integral to the Islamic faith that it is the first thing recited in the ears of a newborn baby. The azaan is in and of itself an act of worship. Consequently, as an act of worship, we submit that it comes squarely and unarguably within the constitutionally guaranteed right to practice one’s religion,” they said.

And the only purpose the interdict served, they maintained, was to “promote Mr Ellaurie’s bigoted views and to insulate him from any exposure to a religious practice of other members of his community, which he ought to be tolerant of in our diverse society”.

Ellaurie is opposing the appeal.

In the High Court, Judge Mngadi described Ellaurie’s position as being that Islam should be banned.

Ellaurie in his heads of argument before the SCA, denied this.

He however maintained his belief that the religion was “in deep violation of the Constitution and thus not deserving of protection under this Constitution” and even that parts of the Quran constituted hate speech.

He also said he believed the madrasah was supporting what he claims is a bid for Muslim people to take over the country.

And he took issue with children attending religious education classes after hours at a local primary school, saying public facilities shouldn’t be used to further “a racist and sexist ideology”.

He argued were the interdict to be set aside, it would encourage the creation of “religious enclaves” which would, in turn, create “fertile ground for radicalisation and balkanisation of the state by separatists”.

He has also asked the SCA to reconsider his bid to kick the institution out of the area.

He said Judge Mgadi “misread his intentions” and that he wasn’t relying on religious doctrinal grounds for this relief but on grounds involving racism, Muslim people not wishing others Merry Christmas, and the promotion of “Muslim law”.

He indicated he wants the SCA to revise the High Court order. And if it couldn’t make an order in the terms he wanted, he asked for one barring the madrasah from purchasing any more properties in the area or developing its current properties.

-EWN

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