Madrasah Taleemuddeen Islamic Institute vs. Chandra Giri Ellaurie and Another - (24 Nov 2022)

Constitution not only provide protection for different religious beliefs and affiliation, it also guaranteed the freedom to observe and manifest the different religious beliefs

Civil

The interdict application had been brought by Mr. Chandra Giri Ellaurie. In terms of the interdict the high court ordered that the sound of the ‘Call to Prayer’ (the Azaan) generated from the madrasah’s immovable property, should not be heard at Mr Ellaurie’s property. The appeal to the SCA therefore concerned the question of when noise emanating from a neighbour’s immovable property is actionable in law.

It was, in fact, Mr. Ellaurie who had to satisfy the requirements for the interdict sought, and to prove to 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, as the high court had found.

Mr. Ellaurie’s application for an interdict failed to meet the legal requirements for the relief he sought. The SCA found that although Mr Ellaurie explained that the first of five daily Azaans was at 03h30, he did not explain what exactly the nature and level of the noise was, and how long it lasted in each instance. He tendered no evidence of what a reasonable Azaan would be in the circumstances. Instead, the evidence tendered was that of his profound dislike of Islam.

Apart from failing to provide evidence of unreasonable interference in the circumstances, Mr. Ellaurie placed himself within the realm of a specially or extraordinarily sensitive complainant. The reasonableness (or otherwise) of the Azaan could not be judged by his standards, the essence of which was a deep aversion to the Islamic faith. It had to be judged by the standard of an ordinary person living in Isipingo Beach. There was, at best, a paucity of evidence. Notably, the SCA found that the high Court erred in its conclusion that the Constitution provided no guarantee for religious practices. The Constitution did not only provide protection for different religious beliefs and affiliation, it also guaranteed the freedom to observe and manifest the different religious beliefs. The appeal must therefore succeed. It set the interdict aside.

Tags : NOISE INTERDICT REQUIREMENT