The Supreme Court of Appeal (SCA) has ruled that the athan or Islamic call to prayer is not a disturbance to the community of Isipingo Beach in KwaZulu-Natal.
Judgement was handed down on by the Bloemfontein court on Thursday.
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The ruling comes after resident Chandra Ellaurie sought a court interdict to silence the athan and shut down the Madrasah Taleemuddeen Islamic Institute’s operations in the residential neighbourhood saying it disturbed his peace and enjoyment of his property and wanted it sold to the state or to a non-Muslim entity.
Judge Sidwell Mngadi in 2020 in the KwaZulu-Natal High Court in Durban ruled that the Madrasah must ensure that the athan from the institute is not audible within the buildings of Chandra Ellaurie’s property, 20 metres away.
However, the Islamic institution appealed against the decision by the Durban High Court that limited the athan or the Islamic call to prayer.
The SCA said Ellaurie’s application for an interdict failed to meet the legal requirements for the relief he sought.
“Because he sought a final interdict, he first had to establish a clear right. Then, he had to demonstrate that the nature and/or level of noise unreasonably interfered with his established right. He also had to show that he had no other satisfactory alternative remedy.”
“Contrary to the approach by the high court, it was, in fact, Mr Ellaurie who had to satisfy the requirements for the interdict sought, and to satisfy the court, in particular, that the interference with his comfort was unreasonable. The madrasah had no responsibility to show that the athan was essential to its religious practice,” it said.
Dislike of Islam
The court said Ellaurie failed to explain pertinent details of the complaint.
“Although Mr Ellaurie explained that the first of five daily athana was at 03h30, he did not explain what exactly the nature and level of the noise was, and how long it lasted in each instance. He tendered no evidence of what a reasonable athan would be in the circumstances.”
“Instead, the evidence tendered was that of his profound dislike of Islam. In fact, he would rather have the athan banned from Isipingo Beach altogether,” the SCA said it in its judgment.
Athan foreign sound
The SCA added that Ellaurie took exception to what he considered to be the elevation of the Islamic faith above all other religions, which, according to him, were denigrated in the Quran.
“He referred to the athan as a ‘foreign sound that invades the public and private space’, that bears down on [him]’, over which he has no control, and which robs him of the opportunity ‘to the quiet enjoyment of [his] property.”
“It is apparent from his founding affidavit that he discovered most of the information on which his averments are based from research he undertook after he had resolved to approach the court for an interdict application,” it said.
The SCA upheld the appeal by Madrasah Taleemuddeen Islamic Institute with costs set aside and replaced the judgement of the Durban High Court.
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