Durban - A Durban woman who has set up a petition objecting to the recent Durban High Court judgment which effectively silenced the Muslim call to prayer at a Madrasah school in Isipingo Beach has labelled the ruling as setting a “dangerous precedent” against all religious gatherings in the country.
Judge Sidwell Mngadi ruled last month that the Madrasah Taleemuddeen Islamic Institute must ensure that the calls to prayer made from its property are not audible within the building’s of resident Chandra Ellaurie’s property 20m away.
Ellaurie had sought an interdict to silence the call to prayer, to shut down the institution’s operations in the residential neighbourhood and to have its property sold to the state or to a non-Muslim entity.
The Madrasah had opposed the application, contending that the call to prayer was not amplified and that no other neighbours had complained. The second respondent, eThekwini Municipality, did not oppose the application.
In his judgment Judge Mngadi said Ellaurie, who is Hindu, was “unashamedly opposed” to the Islamic faith and that he regarded it as a “false religion” that discriminated against non-Muslims as non-believers.
Judge Mngadi ruled that Ellaurie had established his “right to the use and enjoyment of his property” and that the proximity of his property to the school and “the overwhelming evidence of the making of the Call to Prayer and the purpose thereof, create probabilities that favour the applicant’s version that the Call to Prayer interferes with his private space”.
“The interference constitutes an injury and it is a continuous injury,” Judge Mngadi ruled.
Aslam Mayet, attorney for the Madrasah Taleemuddeen Islamic Institute, said the school would be appealing the judgment on constitutional grounds because Muslims had the right to practice their religion.
Approached for comment, Ellaurie said: “I don’t want to be commenting on any of the developments.”
The ruling has stirred up controversy and indignation among Muslim organisations and citizens nationally who have called for people not to respond inappropriately in their criticism of the judgment.
Shabnam Palesa Mohamed, an attorney, accredited mediator and radio journalist, said she had decided to start the online petition, which has gone viral on social media, because it was important as citizens struggled during the Covid-19 lockdown to “support each other with compassion, wisdom, and understanding”.
“The call to support the azan and religious tolerance is a call to our conscience as human beings. The impact of this judgment, which will be appealed, is being felt across all religions, cultures and communities,” Mohamed said.
“Many are painfully reminded of the days of apartheid, because of the restriction on religious practice, the applicant’s request that the school be sold, and the implication that Muslims should leave the area.
“Meanwhile, complaints against the azan are also being heard in Cape Town and Johannesburg, making many Muslims feel unwelcome in the country they strive to build, from before apartheid and 26 years into a democracy. Most South Africans have lived in harmony for centuries,” she said.
She said the court application and judgment had “inspired feelings of shock, disbelief, and sadness” among Muslims and non-Muslims who were “deeply united in their solidarity to protect the azan” and to stand with Muslims against bigotry, and ensure the right to religious freedom remained respected.
“Reactions on social media, from supportive comments to initiatives to promote an understanding of Islam and the call to prayer are building across the country,” she said.
Mohamed said the impact of the judgment was “far reaching”.
“It could set the dangerous precedent for the silencing of church bells, temple prayers, Hare Krishna walks and all religious gatherings.
“But it could also mean that any person hypersensitive to sounds could apply to the court to ban children from playing, to interdict braais with music, and to mute happy cheers over games of soccer, cricket and rugby,” Mohamed said.
She said the result would be a “dull and colour-drained world”.
“Sights and sounds infuse life into humanity,” Mohamed said.
She said the matter was suited for the Constitutional Court as the right to equality, dignity, religious freedom and freedom of expression were enshrined and protected in our constitutional democracy.
“It would be a test of our culture of human rights and the heritage we proudly celebrate. I also believe that alternate dispute resolution should be attempted by a neutral, insightful and skilled professional. Litigation can be adversarial, divisive, stressful, costly, lengthy and disempowering,” she said.
SA Muslim Network chairperson Dr Faisal Suliman echoed her sentiments, saying it was a “poor judgment” as the applicant had not produced any evidence other than his own testimony regarding the sound levels of the call to prayer.
“It is an unamplified call to prayer. It would have been different if it was an amplified call to prayer.
“Firstly, there were no sound experts or engineer’s report to say it is at a level that it will cause a disturbance and secondly the judge says he has a right to enjoy his property - the Madrasah also has its rights,” he said.
“We think that based on a whole host of reasons it is a poor judgment and it has implications for society. It is a step backward for developing a pluralistic society. We are confident it will be overturned on appeal.”
The Mercury