Ispingo – The right to freedom of religion and how far that extends is under the spotlight in the Supreme Court of Appeal (SCA) as Madrasah Taleemudden tries to overturn an order muting the Athaan. On March 26 Judge Sidwell Mngadi rejected an application to appeal the judgement he handed down in August 2020.
The matter started when Chandra Ellaurie lodged a complaint against the madrasah. Ellaurie, who lives about 20m from the madrasah, stated the Athaan infringed on his dignity, and it should not be heard beyond the boundaries of the madrasah. He also launched a bid to get the madrasah banned from the era, which was dismissed by Mngadi. While Ellaurie says he believes in freedom of religion, Attorney Yousha Tayob, Attorney and Community Activist, believes Ellaurie’s words contradicts this.
“He says in his papers that [Islam] it’s not a religion worthy of constitutional protection and a whole host of other defamatory remarks … There are a number of issues that we’re going to raise including the anti-Muslim sentiment … He’s also gone on to say that he doesn’t recognize Islam as a proper religion, and it should not be given that recognition.”
The court ruled wrongly on the Athaan because they used the wrong method
When the judgement was first handed down, it came as a shock to the Muslim community in Ispingo and especially South Africa. Mngadi found that Ellaurie had made out a case against the calls to be made from the madrasah. However, Tayob believes Mngadi applied a wrong test when making judgement and as such, the judgement should have never been passed.
“He [Ellaurie] recognises the freedom of religion but not the manifestations of religion. There are a number of judgments that say you can’t have freedom of religion without the manifestations showing themselves … The issue for us is that the court in its initial hearing applied a wrong test of interference. It should have done what we call a balanced and or reasonable test. A reasonableness test and so hopefully that will be adjudicated.”
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What could decide the outcome of the case
Having lost the case in the Durban High Court, the madrasah has turned to the SCA to overturn the order. In order to show that Noise Nuisance exists, a person must find a certain noise intolerable or seriously effecting his enjoyment on his property. This normally comes down to the court applying a test of objective reasonableness which Mngadi did not do. Tayob feels the verdict will all come down to science and the support or lack of from the community.
“It’s going to go to the science as to what is acceptable and not acceptable and depending on the definition and zoning of a particular residential or industrial or commercial or whatever area. It may end up there. I think it’s going to likely depend on which communities want to make a noise about it [as well].”
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Will the matter set a precedence for all Athaans around the country
This is not the first time an issue has been raised about the Athaan and any fear it won’t be the last. There are concerns that this case might set a precedent for further cases against the Athaan. However, Tayob doesn’t see it that way. It will not have a blanket reaction on all Athaans.
“I don’t think it will set a precedent. It’s a neighbour law issue regarding interference and whether the court applied the right test. There is no amplification from Taleemudden, there are no speakers. It’s purely voice. It’s one issue regarding neighbour law and what may happen is you may have a wave of people who now go and complain and we’re going to deal with it.”
For Tayob, the Athaan has always been accepted in communities and he hopes it will still be. The matter was heard in the SCA today and advocate Rafik Bhana issued a WhatsApp message stating he and his team feel confident about how the hearing went. The five judges have reserved judgement. The judgement will only come out in a months’ time. Until then, the interdict on the madrasah is still in place and it is still prohibited from calling out the Athaan.
