The Supreme Court of Appeal (SCA) will on Monday hear an appeal against a controversial ruling in the Durban high court directing an Isipingo Beach madrasah to “mute” its “azaan” — its calls to prayer — so they could not be heard from a neighbour’s property.
The ruling, by judge Sidwell Mngani, followed a court application by self-confessed Islamophobe, Hindu Chandra Giri Ellaurie, who said the call gave the suburb “a distinctly Muslim atmosphere”.
Ellaurie said he considered the Islamic religion offensive and its manifestations not deserving of constitutional protection.
Mngani, in granting the interdict, said while he acknowledged it was an “extraordinary remedy”, Ellaurie had established a right to the use and enjoyment of his property.
The call to prayer was an “interference which constituted a continuous injury”, he said.
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.
In written heads of argument lodged in the SCA , lawyers for the Madrasah said while Ellaurie had objected as a neighbour, it was clear this was grounded on religious intolerance in that the azaan was a “foreign sound”.
The judge’s ruling had attracted widespread academic criticism, they said.
This was because , Ellaurie did not make out a proper case of “nuisance”.
“His real objection was that the azaan represents a religion which he finds offensive.”
They argued the court had also ignored the constitutional right to freedom of religion.
“In expanding on the basis for his complaint and his abhorrence for the Islamic faith he delved into what he described as his observations of Muslims and set out what he alleges are offensive teachers in the Qur’an, describing them as a ‘dirty tricks campaign’.”
The judge’s finding that while the constitution guaranteed freedom of religion, it did not guarantee the practise of manifestations of religion, was wrong, it was submitted.
“The guarantee of freedom of religion is empty and meaningless if it does not carry with it the guarantee to practise it. The two go hand in hand.
“The azaan is a cornerstone of religious practice for Muslims. It is an act of worship.”
It was submitted that the court order limited a foundational constitutional right for no other purpose than to promote Ellaurie’s “bigoted views”.
Ellaurie, who is representing himself, is opposing the application.
He said the appeal has “significant importance” and the rights of individuals were at stake.
He said in spite of claims by the Madrasah that the azaan could not be heard beyond its boundaries, it was done by a “man standing metres away from my property shouting at the top of his lungs at 3.25am”.
He again stated the Muslim religion did little to subscribe to the ideas of human dignity, equality and non-discrimination and “for this reason I do not believe it is supported by the constitution”.
However, he said, he supported the Constitutional right of all citizens to decide on a religion of their own choosing.
He said non Muslims — more than 97% of the population — had their lives “interrupted” five times a day, 150 times a month by a religion “which is, in my opinion, not valid in the first place”.
Ellaurie said his objection did not emanate from an ideological standpoint but from the audible disturbance of his daily activities, which grew stronger when he discovered the “belittling of other religions” on its website and his “discovery” of bigoted verses in the Qur’an.
He said not to uphold the interdict would promote “noise pollution under the guise of religion” and encourage religious enclaves.
Ellaurie requested that the court grant additional relief in the form of an order that the azaan not be heard beyond the property of the madrasah and not just his property.
He also seeks an order barring the madrasah from buying any further properties in Isipingo Beach.
TimesLIVE
SCA to hear appeal on ruling to mute call to prayer
Image: Gallo Images/iStockphoto
The Supreme Court of Appeal (SCA) will on Monday hear an appeal against a controversial ruling in the Durban high court directing an Isipingo Beach madrasah to “mute” its “azaan” — its calls to prayer — so they could not be heard from a neighbour’s property.
The ruling, by judge Sidwell Mngani, followed a court application by self-confessed Islamophobe, Hindu Chandra Giri Ellaurie, who said the call gave the suburb “a distinctly Muslim atmosphere”.
Ellaurie said he considered the Islamic religion offensive and its manifestations not deserving of constitutional protection.
Mngani, in granting the interdict, said while he acknowledged it was an “extraordinary remedy”, Ellaurie had established a right to the use and enjoyment of his property.
The call to prayer was an “interference which constituted a continuous injury”, he said.
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.
In written heads of argument lodged in the SCA , lawyers for the Madrasah said while Ellaurie had objected as a neighbour, it was clear this was grounded on religious intolerance in that the azaan was a “foreign sound”.
The judge’s ruling had attracted widespread academic criticism, they said.
This was because , Ellaurie did not make out a proper case of “nuisance”.
“His real objection was that the azaan represents a religion which he finds offensive.”
They argued the court had also ignored the constitutional right to freedom of religion.
“In expanding on the basis for his complaint and his abhorrence for the Islamic faith he delved into what he described as his observations of Muslims and set out what he alleges are offensive teachers in the Qur’an, describing them as a ‘dirty tricks campaign’.”
The judge’s finding that while the constitution guaranteed freedom of religion, it did not guarantee the practise of manifestations of religion, was wrong, it was submitted.
“The guarantee of freedom of religion is empty and meaningless if it does not carry with it the guarantee to practise it. The two go hand in hand.
“The azaan is a cornerstone of religious practice for Muslims. It is an act of worship.”
It was submitted that the court order limited a foundational constitutional right for no other purpose than to promote Ellaurie’s “bigoted views”.
Ellaurie, who is representing himself, is opposing the application.
He said the appeal has “significant importance” and the rights of individuals were at stake.
He said in spite of claims by the Madrasah that the azaan could not be heard beyond its boundaries, it was done by a “man standing metres away from my property shouting at the top of his lungs at 3.25am”.
He again stated the Muslim religion did little to subscribe to the ideas of human dignity, equality and non-discrimination and “for this reason I do not believe it is supported by the constitution”.
However, he said, he supported the Constitutional right of all citizens to decide on a religion of their own choosing.
He said non Muslims — more than 97% of the population — had their lives “interrupted” five times a day, 150 times a month by a religion “which is, in my opinion, not valid in the first place”.
Ellaurie said his objection did not emanate from an ideological standpoint but from the audible disturbance of his daily activities, which grew stronger when he discovered the “belittling of other religions” on its website and his “discovery” of bigoted verses in the Qur’an.
He said not to uphold the interdict would promote “noise pollution under the guise of religion” and encourage religious enclaves.
Ellaurie requested that the court grant additional relief in the form of an order that the azaan not be heard beyond the property of the madrasah and not just his property.
He also seeks an order barring the madrasah from buying any further properties in Isipingo Beach.
TimesLIVE
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