Durban man wins court case to restrict Islamic call to prayer near his home

A Durban man, who openly admits to opposing the Islamic faith and took a Muslim religious institute near his home to court, has won the case restricting the historic call to prayer from being heard inside his home.

In the High Court judgment, Judge Sidwell Mngadi described Chandra Giri Ellaurie from lsipingo Beach, south of Durban, as “unashamedly opposed to the Islamic faith”, propagated by the Madrasah just metres from his home.

In the judgment, Ellaurie told the court the Madrasah Taleemuddeen Islamic Institute, which is about 20m from his home, sounded its call to prayer five times a day, with the first call at 03:30.

“The applicant states the call to prayer is a foreign sound, which invades his private space. It bears down over to him. It deprives him of the enjoyment of his property and interrupts his peace and quiet. It further disrupts his sleep, listening to music and meditation.”

Mngadi said Ellaurie further accused the Madrasah of giving the suburb “a distinctly Muslim atmosphere”.

“It attracts those of the Islamic faith and keeps non-Muslims away. The Muslim community in the area has increased by 30 percent in the past 15 years. The dominance of one group has resulted in arrogance and domination by the dominant group.”

In the judgment, Ellaurie said he also attempted other interventions, including writing to the eThekwini Metro, the second respondent in the matter, in 2003.

He said a meeting was held on 15 December 2003, but it was disrupted when “someone drove through the area at high speed, discharging a firearm”.

“There was also around that time severe hooting in the early morning before sunrise and not long after the first call to prayer. The municipality took no further steps,” said Mngadi in the judgment.

On 28 July 2004, Ellaurie reported the call to prayer to the SA Human Rights Commission (SAHRC), who recommended the lsipingo Beach Muslim Association “desist from using the external sound amplifier system during the first call to prayer of each day”.

Among the resolutions was that an appropriate level of amplification would be fixed “and not left to the discretion of the person calling others to pray”.

The SAHRC also said each call to prayer should last no longer than three minutes.

In court papers, Ellaurie said that, at the time, the Madrasah representative found the recommendation “reasonable and supported it”.

The judge, however, shot down Ellaurie’s attempt to ban the Madrasah from the area all together.

Ellaurie tried to argue that doing so was in the public interest.

“He, however, had no answers when asked which public he was acting on behalf of, or who had given him authority to act. In my view, there is no evidence as to which members of the public share the applicant’s sentiments relating to Islam.”

Mngadi said that on an issue where the public is divided, “an individual cannot claim to act on behalf of the public”.

“Further, when the applicant was asked what the Madrasah had done to him that entitles him to ask that it be banned from the area, he had no answer.

“He did, however, say that he wanted the area to be restored to its former glory. In my view, the applicant has no locus standi to seek the order banning the Madrasah from the area.

“He has not made out a case for the relief, banning the Madrasah from the area, in the papers.”

Could not ‘pander to such bigotry’

The chairperson of the Isipingo Muslim Association, Mohammed Patel, said the Madrasah did not transmit its call to pray by radio or television.

He said the Madrasah did not intend using external sound amplification in the future, but objected to being interdicted from using the call to prayer on a matter of principle.

He said the Madrasah could not “pander to such bigotry, to do so would be a disservice to the founding principles of the Constitution of the Republic”.

Mngadi ordered that the Madrasah had to ensure that its call to prayer was not at a level audible within the Ellaurie’s home, but also that it did not negatively affect the Madrasah “in the manner it practises its religion”.

Mngadi said the Constitution guaranteed provision for freedom of religion, but “it does not guarantee practice or manifestations of religion”.

“The call to prayer is a manifestation of the Islam religion, it is not Islam itself.

“[Ellaurie] is entitled to enjoy the use of his residential property. It is part of his private space. Others are obliged to respect the applicant’s right to the use and enjoyment of his property.”

The Daily Voice reported that the institute will appeal the ruling.

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