After a Two-Year Athan Ban, a South African Madrasah Regains the Right to Call for Athan

The Supreme Court of Appeal (SCA) in South Africa sets aside a judgement of a high court in Durban in August 2020, which decreed to interdict Athan (the call to prayer) through loud speakers at the mosque of Madrasah Ta”leemuddeen Islamic Institute in Isispingo Beach, South Africa.

With this judgement from the SCA, a two-year long legal sparring between the legal team of the Madrasah and Mr. Chandra Ellaurie, one of the residents of Isipingo Beach, who claimed that the call to prayer from the Madrasah’s mosque invaded his private space and caused him a disturbance in his home which was neighboring to the Madrasah.

The Rationale of the Verdict:

In the verdict, the Court states: “the right to undisturbed use and enjoyment of own property is not unlimited – reasonable interference is to be expected depending on the circumstances in a specific neighbourhood”.

The verdict also mentions that Mr. Ellaurie has expressed his “profound dislike of Islam” and that he believed that Islam “promotes racism, bigotry and sexism, and pays no regard to the Constitution” and that Athan has added a “distinctly Muslim atmosphere to the area”.

The SCA Judgement set aside a preceding judgement by the High Court of Durban, which decreed to ban the Madrasah from using loud speakers to  call for prayer.

The High Court Judgement found that “the freedom of religion guaranteed in the Constitution was no ‘guarantee [of the] practice or manifestations of religion’. Therefore, the madrasah had to demonstrate that the Azaan was essential to the practice of its religion. All that Mr Ellaurie had to prove was interference with enjoyment of his ‘private space”

The SCA had different approach, as it states in the Judgement: “Contrary to the approach by the high court, it was, in fact, Mr Ellaurie who had to satisfy the requirements for the interdict sought, and to satisfy 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.”

It also stated that Mr. Ellaurie “failed to meet the legal requirements for the relief he sought.” and then added that he was unable to produce such evidence to support his calim, “instead, the evidence tendered was that of his profound dislike of Islam. In fact, he would rather have the Azaan banned from Isipingo Beach altogether.”

The final verdict of the court  states: “The judgment of the high court is set aside and replaced with the following: ‘The application is dismissed with costs.’”

Which grants the Madrasah the right to call for prayer through loud speakers once again.