Cape Town - The Muslim Judicial Council has hailed the decision of the Supreme Court of Appeal (SCA) to reverse an order by the high court which had silenced the athaan from a mosque at a Durban madressa, calling it a blow against Islamophobia.
Speaking in Cape Town after seeing the judgment, MJC second deputy president Shaykh Riad Fataar said: “As the MJC we are elated with the judgment. The judge was spot-on about this being Islamophobia from the complainant, Chandra Ellaurie.”
Shaykh Fataar said people needed to appreciate that South Africa was a rainbow nation and as such the population was diverse and tolerance was required of all people
“We might understand a complaint about noise if it went on for a long time, but the athaan is barely three minutes or less.”
He said the noise nuisance complaints were not a new thing for mosques and as the MJC, they had done their best to accommodate neighbours in the communities where there are mosques, even going so far as to turn the speakers in a different direction if it would help.
The SCA judgment came in an appeal against the judgment of the Durban High Court, which granted an interdict against the Madrasah Taleemuddeen Islamic Institute.
The high court judgment was made in August 2020 in a case brought by Ellaurie, who lives opposite the madressa in Durban’s Isipingo Beach.
Ellaurie had argued the prayer call “deprived him of the enjoyment of his property rights” and it gave the neighbourhood “a distinct Muslim atmosphere”. He had also asked the court to shut down the institute, a request the high court refused to agree to.
Ellaurie had been complaining about the call to prayer since 2003 and reported it to the South African Human Rights Commission in July 2004.
Prior to his court action, various forms of intervention attempted in a bid to resolve the dispute with the madrasah, all were unsuccessful.
The SCA ruled that Ellaurie’s application for an interdict failed to meet the legal requirements for the relief he sought. The SCA said that although Ellaurie explained that the first of five daily calls to prayer was at 3.30am, he did not explain what exactly the nature and level of the noise was, and how long it lasted in each instance. Instead, the evidence he gave was that of his profound dislike of Islam.
The SCA said: “Ellaurie placed himself within the realm of a specially or extraordinarily sensitive complainant.”
The reasonableness (or otherwise) of the athaan could not be judged by his standards, the essence of which was a deep aversion to the Islamic faith. It had to be judged by the standard of an ordinary person living in Isipingo Beach.
On this, the SCA found there was, at best, a paucity of evidence. Notably, it found the high court erred in its conclusion that the Constitution provided no guarantee for religious practices.