The Supreme Court of Appeal (SCA) has thrown out the interdict granted by a lower court to a KwaZulu-Natal man who barred his neighbours, the Madrasah Taleemuddeen Islamic Institute, from “making a noise “when practising their religion.
Chandra Giri Ellaurie had successfully applied for an interdict at the KZN High Court, which ordered that the sound of the “call to prayer” (the Athaan), generated from the madrasah’s immovable property, should not be heard at his property.
Ellaurie lives about 200m from the madrasah’s property in Isipingo Beach, south of eThekwini. On its property, the madrasah conducts a school for Islamic studies. About 340 students live in boarding facilities on the madrasah property, which is spread over three lots.
There is a mosque located on the property. Every day five daily prayers are performed in the mosque. Each prayer is preceded by the Athaan, which is delivered by a Muadhin – an official who proclaims the call to prayer, to remind people of the Islamic faith to come and pray.
It is the Athaan that had to be inaudible at Ellaurie’s property, in terms of the high court order.
However, the Madrasah approached the SCA, seeking it to set aside the interdict. The country’s second-highest court ruled in favour of Madrasah.
Ellaurie had argued that the Athaans invaded his personal space and that they happened at an “unearthly time”, the first being around 3.30am at the start of summer.
He further complained that they gave a “distinctly Muslim atmosphere to the area” and a lot of non-Muslim people found them repugnant.
He also lamented the growth of the Muslim community in Isipingo Beach over the 15 years preceding his application to court and argued that as a result of their dominance in the town, Muslim people had become arrogant.
The SCA took exception to his “dislike of Muslims”.
“Although Mr Ellaurie explained that the first of five daily Azaans [sic] 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. He tendered no evidence of what a reasonable Azaan would be in the circumstances. Instead, the evidence tendered was that of his profound dislike of Islam. In fact, he would rather have the Azaan banned from Isipingo Beach altogether,” the judgment reads.
“He referred to the Azaan 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 on research he undertook after he had resolved to approach the court for an interdict application.”
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