2 min read
20 September 2022
In an application heard in 2020, applicant Chandra Ellaurie sought an order from the Court to impose a ban on the calling to prayer or adhaan at Madrassah Taaleemuddeen Islamic Institute in Isipingo Beach, south of Durban.
In Court, Judge Mngadi said Ellaurie was “unashamedly opposed to the Islamic faith” and rubbished claims that Islam was a “false religion.” The judge also dismissed a bid by Ellaurie to get the madrassah – which he said had turned Isipingo Beach, in South Durban, into “a Muslim enclave” – banned from the area.
However, the judge found that Ellaurie had made a case against the calls to prayers made by the madrassah.
“The proximity of [Ellaurie’s] property to that of the Madrassah and the overwhelming evidence of the making of the call to prayer and the purpose thereof create probabilities that favour the [Ellaurie’s] version that the call to prayer interferes with his private space,” he said.
“[He] seeks to stop the interference with his private space. It could be argued that he moves away from the area, but in my view, this is extreme and does not constitute an alternative legal remedy. There is no other adequate alternative legal remedy available to [him].”
But the madrassah says the case is, in fact, about religious intolerance and according to the attorney, Ashraf Paruk, who spoke to Radio Islam International, saying that they sought leave to appeal against the order refused by Judge Mngadi.
Subsequently, a petition was made to the Bloemfontein High Court for leave to appeal, which was then granted, and the appeal was heard at the Court yesterday.
Advocate Rafiek Bhana SC made the arguments on behalf of the madrassah. According to Paruk, his arguments were based on legality issues, and the failure of Mr Ellaurie to meet the relevant tests for the nuisance he alleged had been caused by the madrassah.
The case highlighted the right to freedom of religion and questioned how far it extended. Social media posts suggested that an unsuccessful appeal would have broader implications for masajid across the country, especially regarding the calling of the adhaan on a loudspeaker. Paruk clarified the issue saying that Ellaurie’s case didn’t focus predominantly on the amplification of the adhaan but on the nuisance of the call to himself.
This would mean that the adhaan, whether it was called using amplification or not, but if close neighbours heard it, it would constitute a nuisance.
Paruk added that there was no definite period regarding the handing down of judgement; however, they were optimistic that it would be within a month.
Regarding the initial ruling on which the order was granted, Paruk says there were many issues upon which the order was granted. Paruk says that in their view, the applicant did not meet the requirements for the interdict and the arguments made yesterday should yield success.
The case has garnered interest and support from Muslims, and other faiths and Paruk thanked the community, Ulama and all well-wishers for their solidarity and prayers.
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By Annisa Essack