The judge dismisses the appeal of the Isipingo mosque; the call to prayer should not be heard beyond the boundaries of the madrasa
Durban – Judge Sidwell Mngadi has dismissed a request to appeal his judgment on the Muslim call to prayer, or Azaan.
The judgment was handed down by the Durban High Court on March 26, although the written judgment has not yet been made public.
The case began early last year when Chandra Giri Ellaurie filed a lawsuit against the Islamic Institute Madrasah Taleemuddeen.
Ellaurie, an electrical engineer who has worked in the United States and Canada, lives in Isipingo, about 20 meters from the madrasah.
He said the Azaan violated his right to dignity and that the call to prayer from the madrasah should not be heard beyond the boundaries of the madrasa.
The madrasah opposed the request. He described Ellaurie as having a personal antipathy towards Islam and Muslims.
In August of last year, Judge Mngadi ruled in favor of Ellaurie and ordered that the azan not be heard on Ellaurie’s property.
Judge Mngadi said that under article 16 of the constitution everyone has the right to freedom of conscience, religion, thought, belief and opinion. He said Ellaurie had the right to profit from the use of her residential property.
The madrassah, through lawyer Ashraf Paruk, appealed against the judgment and the order.
In one app, the madrassah said that the azan indicated that the building was a place of prayer and that it was important to call people to pray.
“Prayer is an important part of Islam and it is mandatory that Muslims pray five times a day. The azan is an announcement of the time of prayer, calling on Muslims to pray and inviting them to gather for the obligatory prayer.
The app said that Azan is an integral part of Islam, as it is the first thing recited in a newborn baby’s ear.
He added that South Africans, academic commentators and the international community had reacted widely to the judgment and that was reason enough for the nomination to be accepted.
The appeal argued that while Judge Mngadi had mentioned the right to freedom of religion, he had not considered how that right might limit Ellaurie’s property rights.
“Instead, the problem of religious freedom is dismissed by the absurd claim that the call to prayer ‘is a manifestation of the religion of Islam, it is not Islam itself. “. (This does not make sense because, as the court itself explained, freedom of religion includes the right to manifest religious beliefs.)
“If the court had done more than lip service to the right to freedom of religion, it could not have granted the ban.”
He said the order Ellaurie sought was a ban on an action, which he said was a nuisance (Azaan)
“We submit that the learned judge failed to apply the established common law principles of nuisance law and applied the wrong legal test. The judgment states that in order to successfully obtain a ban, “the applicant must prove the interference and nothing more”.
“The property in question is zoned to serve as a madrasah. In this regard, we maintain that the learned judge did not consider that the madrasa functions legally in accordance with the zoning requirements granted by the municipality of eThekwini.
Demand argued that Ellaurie had 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 not present any argument in this regard, but more fundamentally, the learned judge did not even examine or meet this part of the criterion required to establish the nuisance. This failure in itself demonstrates that another court applying the full and complete test to establish the nuisance would very well come to a different conclusion. “
The Madrassah argued that Ellaurie was opposed to the Azaan because it gave the suburbs a Muslim feel 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 into her rights. There is also a reasonable chance that an appellate court will find that Ellaurie did not show a level of tolerance for the call to prayer.
In a counter-application, Ellaurie, who represents himself, said he was a peace-loving person who loved music, prayer and meditation.
He said that the Azaan was an individual, personal and private choice or duty to pray, which should not be forced upon the will of the majority, or of the unbelievers within its compound.
Ellaurie said the right to liberty was important for a constitutional democracy, which was based on human dignity, equality and freedom.
“The value of human dignity within our constitutional framework cannot be questioned. The Constitution protects our human dignity as a means to contradict our past history where the human dignity of vulnerable South Africans was systematically and cruelly denied.
“Ellaurie’s worth of human dignity was offended by the madrasah practice of shouting her ‘Call to Prayer,’ which the court correctly ruled to be a manifestation of the Islamic religion.
He described the azan, which is heard five times a day, as a human voice shouting to inform others to pray.
“Current technology offers several more efficient, practical and effective alternatives for 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 why leave to appeal should be granted.”
After hearing the case, Judge Mngadi dismissed the madrassas’ application for leave to appeal.
Ellauri said he was satisfied with the outcome of the tribunal.
“It has not been easy for me as I represent myself in cases when there are lawyers and lawyers, well equipped, acting on the other side. However, I am happy with the result. “
Paruk told POST this week that he intends to go further.
“We will approach the Bloemfontein Supreme Court of Appeal.”
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