Ellaurie v Madrasah Taleemuddeen Islamic Institute and Another (KZD) (unreported case no 3848/2019, 21-8-2020) (Mngadi J)Religion touches the profoundest and most delicate emotions of people. It is a matter that has to be addressed with infinite circumspection, sensitivity and tolerance.
On 21 August 2020, Mngadi J handed down judgment in the Ellaurie matter, ordering that the Calls to Prayer made by the first respondent from its property should not be heard from the property of the applicant.
The applicant was Chandra Giri Ellaurie (Ellaurie), the first respondent was the Madrasah Taleemuddeen Islamic Institute (the Madrasah) and the second respondent was the eThekwini Municipality (the Municipality), who did not participate in the litigation. Ellaurie applied for an order interdicting the Madrasah from emanating Calls to Prayer that can be heard beyond the boundaries of its property.
Ellaurie’s residence and the Madrasah’s property are approximately 20 metres apart, with another dwelling in between. The Madrasah also owns an unimproved second property about 200 metres away from Ellaurie’s property and the Municipality has granted the Madrasah approval for a cluster residential development at the second property.
Ellaurie regards ‘Islam as a false religion that discriminates against non-Muslims as non-believers’. He stated that Islam promotes cultural racism, does not uphold the divinity of man and lacks commitment to truth and the pursuit thereof. Furthermore, he avers that the Madrasah acquired a large property and began to develop it, contrary to the restrictions of the title deed.
According to Ellaurie, the Call to Prayer is a foreign sound, which invades his private space. It deprives him of the enjoyment of his property and interrupts his peace and quiet. In addition to this, he contends that the Call to Prayer gives the suburb a distinctly Muslim atmosphere.
In 2003, Ellaurie wrote to the Municipality complaining about the Call to Prayer. Later that year, the Municipality held a meeting with interested parties. The meeting was, however, disrupted and no further steps were taken.
In 2004, Ellaurie reported the Call to Prayer in the area to the South African Human Rights Commission (the SAHRC). The SAHRC conducted mediation and among other things, recommended that the mosque administered by the Isipingo Beach Muslim Association desist from using the external sound amplifier system during the first Call to Prayer of each day.
Representing the Madrasah, Patel explained that the Madrasah does not broadcast its Calls to Prayer and further, that it has no intentions of using external sound amplification in the future. The Madrasah objected to being interdicted from using the Call to Prayer on a matter of principle as it cannot pander to such bigotry. To do so, in Patel’s view, would be a disservice to the founding principles of the Constitution.
The court held that Ellaurie’s attempt to portray Islam as an invalid religion, which misleads the community, as well as his attempt to have the Calls to Prayer banned, are misguided. The right to religion can be found in s 15 of the Constitution. This provision guarantees freedom of religion, however, it does not guarantee practice or manifestations of it, and the Call to Prayer, is a manifestation of the Islam religion. It is not Islam, itself. It should be noted that there is no law of general application, as envisaged in s 36, which outlaws Islam. The court is not in a position to analyse the scriptures and make a decision on whether Islam is a false religion or not. The court held that Ellaurie’s attempt to have the Madrasah banned on religious doctrinal grounds would not succeed. It is also common cause that there are other Muslim mosques in Isipingo Beach. To ban only the Madrasah, would be a futile exercise.
The court further held, that Ellaurie is entitled to enjoy the use of his residential property and others are obliged to respect his right to the use and enjoyment thereof.
His averment that the individual designated to make the Call to Prayer stands outside the building, in the premises of the Madrasah, is not disputed and the Madrasah does not deny that the Call to Prayer is meant for the neighbourhood of the Madrasah. Furthermore, the Madrasah does not contend that it is essential, in order to practice its religion, that the Call to Prayer be made in such a way that it interferes with Ellaurie’s use and enjoyment of his private space. In the circumstances, Ellaurie must prove interference only.
The court held that the applicant has, on a balance of probabilities, established a right to the use and enjoyment of his property, and on a preponderance of probabilities, that the Call to Prayer interferes with his private space.
Based on this, the Madrasah was ordered to ensure that Calls to Prayer that are made from its property, are not audible within the buildings on Ellaurie’s property.
Section 15 of the Constitution guarantees freedom of religion. It does not prevent the state from recognising or supporting it, and the state is required to treat religions equally. This right, together with s 36, firmly entrenches the rights of individuals and communities to free exercise of religion.
Section 15, read together with the equality clause, prohibits the state from discriminating against any particular religious group. Therefore, the freedom of religion has a free exercise component and an equal treatment component.
State interference with religious autonomy will inevitably take the form of anti-discrimination laws, and the balancing of rights will then take place under s 36. However, the courts have shown an inclination to avoid limitation clauses and analysis where possible, and prefer, instead, to attempt to restrict the scope of the right.
One reason to avoid resolving freedom of religion disputes under the limitation clause is the difficulty of the analysis that this requires. This difficulty is twofold, the first, being because of the difficulty in weighing considerations of faith, against those of reason and secondly, because of the problem that comes with separating what aspects of an activity are religious and protected by the Bill of Rights, and what are circular and open to regulation in the ordinary way.
Kirsten-Ann Toohey LLB (UFS) is an LLM candidate at the University of KwaZulu-Natal and a legal practitioner at Venns Attorneys in Pietermaritzburg.
This article was first published in De Rebus in 2020 (Nov) DR 39.
