The right to freedom of religion and the question of its scope will come under the spotlight of the Supreme Court of Appeal (SCA) on Monday, when a KwaZulu-Natal madrasah tries to overturn an order muting the call to prayer.
The Madrasah Taleemuddeen Islamic Institute in Isipingo, KwaZulu-Natal. Image: http://alhaadi.org.za/
JOHANNESBURG – The right to freedom of religion and the question of its scope will come under the spotlight of the Supreme Court of Appeal (SCA) on Monday, when a madrasa in KwaZulu-Natal tries to overturn a restraining order the call to prayer.
In August 2020, the High Court in Durban ordered the Islamic Institute Madrasah Taleemuddeen to ensure that the call to prayer – or azaan – could not be heard from inside the house of its neighbour, Chandra Ellaurie.
In court, Ellaurie – who, as the judge said, was “unabashedly opposed to the Islamic faith” – argued that Islam was “a false religion”.
But the judge denied that line, saying there was “no doubt” that Islam was a religion.
Mngadi also rejected an offer by Ellaurie to ban the madrasa – which he said had turned Isipingo beach in Durban’s south into “a Muslim enclave” – from the area.
Mngadi said Ellaurie’s attempt to ban the medersa on religious doctrinal grounds was “doomed to failure”.
“Furthermore, it is common knowledge that there are other Muslim mosques in Isipingo Beach. Banning only madrassah is an exercise in futility,” he said.
The judge, however, considered that Ellaurie had built a case against the calls to prayer launched from the medersa.
“The proximity of [Ellaurie’s] property to that of the medersa and the overwhelming evidence of the call to prayer and its purpose, create probabilities that favor the [Ellaurie’s] version that the call to prayer interferes with his private space,” he said.
“[He] seeks to end the interference in his private space. One could argue that he is walking away from the area, but in my view that is extreme and not an alternative legal remedy. There is no other adequate alternative legal remedy available for [him].”
But the medersa says the case is in fact about religious intolerance.
In its heads of argument filed with the SCA, the medersa insisted that Ellaurie’s problem was not that the call to prayer was a “nuisance”. On the contrary, his lawyer argued that he, according to his own version, “considers the Islamic religion as offensive and its manifestations not deserving of constitutional protection”.
“It is clear that the real basis of the objection was nothing more than religious intolerance,” they said.
While acknowledging the constitutional right to freedom of religion, High Court Justice Mngadi held that this did not guarantee the practice or manifestations of religion, such as the azaan.
The medersa, however, maintained that “a guarantee of freedom of religion is meaningless if it is not accompanied by the guarantee to practice one’s religion or the right to carry out the manifestations of one’s religion”.
His position was that the ban represented an unjustifiable and impermissible limitation on constitutional rights.
His lawyer described the azaan as “a cornerstone of Muslim religious practice”.
“The azaan is not only an announcement of the time of prayer, calling Muslims to prayer and inviting them to assemble for the obligatory prayer, but the statement of its words is an affirmation and manifestation of the religious belief of Muslims. The azaan is so integral to the Islamic faith that it is the first thing recited in the ears of a newborn. The azaan is in itself an act of worship. Therefore, in as an act of worship, we argue that it squarely and unquestionably falls within the constitutionally guaranteed right to practice one’s religion,” they said.
And the sole purpose of the ban, they argued, was to “promote Mr. Ellaurie’s bigoted views and insulate him from exposure to religious practice by other members of his community, which he should tolerate in our diverse society.
Ellaurie opposes the appeal.
At the High Court, Judge Mngadi described Ellaurie’s position as that Islam should be banned.
Ellaurie in her arguments before the SCA, denied this.
He, however, maintained his belief that the religion was “in gross violation of the Constitution and therefore did not deserve protection under this Constitution” and even that parts of the Quran constituted hate speech.
He also said he believed the Madrasah was supporting what he claims was an attempt for Muslims to take over the country.
And he disputed the fact that children were attending after-hours religious education classes at a local primary school, saying public facilities should not be used to promote “racist and sexist ideology”.
If the ban were lifted, he said, it would encourage the creation of “religious enclaves” which, in turn, would create “fertile ground for the radicalization and balkanization of the state by separatists”.
He also asked the SCA to reconsider its attempt to expel the institution from the region.
He said Judge Mgadi ‘misinterpreted his intentions’ and was not relying on religious doctrinal grounds for the relief, but on grounds involving racism, with Muslims not wishing others a Merry Christmas and the promotion of “Muslim law”.
He said he wanted the SCA to review the High Court order. And if she couldn’t place an order on the terms he wanted, he would ask for one prohibiting the Madrasah from buying other properties in the area or developing its current properties.