The Madrasah Taleemuddeen Islamic Institute. Picture: Oupa Mokoena/ANA
Pretoria - An eThekwini resident, Chandra Giri Ellaurie, will have no choice but to endure the strains of the call to prayer (azaan) from the Madrasah Taleemuddeen Islamic Institute after the SCA set aside a Durban High Court order interdicting the sound from being heard.
In its ruling, the SCA said the Constitution not only provided protection for different religious beliefs and affiliations, but also guaranteed the freedom to observe and manifest the different religions.
Ellaurie lived about 20m from the madrasah’s property in Isipingo. He took the Islamic institution to court complaining that the call to prayer infringed his right to privacy.
“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 ordered the institute to ensure that the calls to prayer made from its property were not audible within the building on Ellaurie’s property, which is 20m away from the institute.
Judge Mngadi said section 16 guaranteed freedom of religion.
However, the SCA found that, contrary to the approach taken by the high court, it was, in fact, Ellaurie who had to satisfy the requirements for the interdict sought, and to prove to the court, in particular, that the interference with his comfort was unreasonable.
The madrasah had no responsibility to show that the azaan was essential to its religious practice, as the high court had found.
The SCA held that Ellaurie’s application for an interdict had failed to meet the legal requirements for the relief he sought.
Notably, the SCA found that the high court had erred in its conclusion that the Constitution provided no guarantee of protection for religious practices.
The Constitution not only provided protection for different religious beliefs and affiliations, but it also guaranteed the freedom to observe and manifest the different religious beliefs, the SCA said in its ruling.
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