Durban – An Isipingo Beach resident has claimed a small victory over a local madressa after a court ruling in his favour.
Last week, Chandra Giri Ellaurie submitted an application to the Durban High Court asking the Adhan (call to prayer) at the Madrasah Taleemuddeen Islamic Institute not be heard beyond the boundaries of its property.
Ellaurie believed the call to prayer infringed on his right to 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, Prophet Muhammad, is a messenger of God,” he said in court papers.
“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 further asked that the order be extended to apply nationally.
“To have to listen to the call to prayer undermines the applicant’s right to dignity. The applicant, therefore, asks the court to end the non-radio broadcast of the call to prayer from mosques and requests that this order be made to apply across the entire country.”
Ellaurie also asked the court to end the institute’s active presence in the area and for its property to be sold to an organ of the state, or to a non-Muslim non-profit or other organisation.
He said he had addressed the call to prayer with the municipality in 2003, and with the South African Human Rights Commission in 2004.
In opposing papers, the institute called for the defamatory sections of Ellaurie’s founding affidavit to be struck from the record, as they also could be considered as hate speech.
It also described Ellaurie as having a personal antipathy towards Islam and Muslim people.
The institute attached supporting affidavits from neighbours that there was no sound nuisance.
“The Isipingo Beach Hindu Society and the Isipingo Beach Christian Fellowship Society do not support the applicant,” it said in court papers.
The matter was heard at the Durban High Court earlier this month. However, Judge J Mngadi reserved judgment. Last week, Judge Mngadi sent his judgment to all parties.
In his ruling, Judge Mngadi ordered the institute ensure the calls to prayer made from its property were not audible within the building in Ellaurie’s property.
Ellaurie lives 20 metres from the institute.
Judge Mngadi said that according to Section 16 of the Constitution, everyone had the right to freedom of conscience, religion, thought, belief and opinion.
“The provision guarantees 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 that Ellaurie was entitled to enjoy the use of his residential property.
“It is part of his private space. Others are obliged to respect the applicant’s right to the use and enjoyment of his property.”
Judge Mngadi added that, while it could be argued Ellaurie relocate from the area, in his view, it was extreme and did not constitute an alternative legal remedy.
“There is no other adequate alternative legal remedy available to the applicant.”
When contacted, Ellaurie said when news circulated about his court application, he was labelled Islamophobic.
“I am not Islamophobic. I was not unkind or unfriendly towards the Muslim community. I just want my personal space to be respected as well.”
The institute said it intended to appeal against the judgment.
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