The Supreme Court of Appeal (SCA) ruling that the athan or Islamic call to prayer is not a disturbance to the community of Isipingo Beach in KwaZulu-Natal is a victory for the Islamic community at large, a member of Pietermaritzburg’s Madrassa Taleem Un Niswaan said yesterday.

The member, who asked not to be named because he has no authority to speak to the media, said it is people with anti-Islamic sentiments who are likely to go to the extent of going to court to stop the than.

“Why has this person decided to take this action against the mosque after all these years? Islamophobia is at the centre of this action.

“Other religions have no problem with our athan as much as we don’t have a problem with other religions. People have moved further away from God, so that’s why we have so much rot in our society.”

The judgment was handed down by the Bloemfontein court on Thursday.

It comes after resident, Chandra Ellaurie sought a court interdict to silence the athan and shut down the Madrasah Taleemuddeen Islamic Institute’s operations in the residential neighbourhood, saying it disturbed his peace and enjoyment of his property and he further wanted it sold to the state or to a non-Muslim entity.

Moulana Tahir Hansa of the Jamiatul Ulama in Pietermaritzburg said everyone has a right to peaceful time and sleep, hence mosques in general are considerate of others when practising their religion.

“We have to consider when people are sleeping and these are some of the guidelines to all mosques. The early morning prayers are not called in a manner that will disturb other people from their sleep. All we need is tolerance.”

Judge Sidwell Mngadi ruled in 2020 in the KwaZulu-Natal high court in Durban that the Madrasah must ensure that the athan from the institute is not audible within the buildings of Ellaurie’s property, which is located 20 metres away.

However, the Islamic institution appealed against the decision by the Durban high court that placed restrictions on the call to prayer.

The SCA said Ellaurie’s application for an interdict failed to meet the legal requirements for the relief he sought.

“Because he sought a final interdict, he first had to establish a clear right. Then, he had to demonstrate that the nature and/or level of noise unreasonably interfered with his established right. He also had to show that he had no other satisfactory alternative remedy.

“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 athan was essential to its religious practice.”

The court said Ellaurie failed to explain pertinent details of the complaint.

“Although Mr Ellaurie explained that the first of five daily athans was at 3.30 am, 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 athan would be in the circumstances.

“Instead, the evidence tendered was that of his profound dislike of Islam. In fact, he would rather have the athan banned from Isipingo Beach altogether.

The SCA added that Ellaurie took exception to what he considered to be the elevation of the Islamic faith above all other religions, which, according to him, were denigrated in the Quran.

“He referred to the athan as a ‘foreign sound that invades the public and private space, that bears down on [him]’, over which he has no control, and which robs him of the opportunity ‘to the quiet enjoyment of [his] property’.

“It is apparent from his founding affidavit that he discovered most of the information on which his averments are based on research he undertook, after he had resolved to approach the court for an interdict application.”

The SCA upheld the appeal by Madrasah Taleemuddeen Islamic Institute with costs and set aside and replaced the judgment of the Durban high court.

• Additional reporting by The Citizen