Durban - THE Madrasah Taleemuddeen Islamic Institute (MTII) has filed an application for leave to appeal the recent Durban High Court judgment which ruled against the call to prayer (azaan).
Isipingo man Chandra Giri Ellaurie had taken the institution to court, complaining that the call to prayer infringed on his privacy and dignity.
“The Muslim religion insults non-Muslims who currently have little choice but to endure being exposed to the call to prayer, which states that the Muslim Prophet Muhammad is a messenger of God. What this tells us is that the non-Muslim population of this country, which counts as over 97% of the total population, are having their lives interrupted five times a day, 150 times a month, and more than 1 800 times a year. This makes no sense,” he said in court papers.
He had also asked that the order be extended to apply nationally.
In his ruling last month, Judge Sidwell Mngadi said that according to section 16 of the Constitution, everyone had the right to freedom of conscience, religion, thought, belief and opinion.
He had ordered the institute ensure that the calls to prayer made from its property were not audible within the building in Ellaurie’s property, which is 20m away from the institute.
Judge Mngadi said the provision guaranteed freedom of religion.
“It does not guarantee practise or manifestations of religion. The call to prayer is a manifestation of the Islam religion. It is not Islam itself.”
He said Ellaurie was entitled to enjoy use of his residential property.
In the leave to appeal application, filed in the Durban High Court on Friday, the MTII said it intended to appeal the whole judgment and the order granted.
“We believe there are prospects of another court arriving at a different ruling on the matter, on grounds that Judge Mngadi’s attempt to differentiate between freedom of religion on the one hand (which he found to be guaranteed by the Constitution) and the call to prayer as a manifestation or practice of religion on the other hand(which he found not to be protected by the constitution), was incorrect and artificial in the circumstances of this particular case,” said the MTII in court papers.
The institute felt that the judge failed to apply the principles of the Constitution and “erred in according greater weight to Ellaurie’s undisturbed use of his property than the Madrasah’s right to freedom of religion, pupils and members”.
“The judgment and the order have serious constitutional consequences for the pupils and members. If the High Court’s reasoning were to be applied generally, the judgment could undermine the right to religious institutions and associations to manifest the religious beliefs of their adherents, merely because such practices are considered a nuisance by neighbours,” said the MTII.
A date for the application to appeal to be heard has not been set.
Daily News