Noise nuisance and religion

 

When does the Islamic ‘Call to Prayer’ constitute a noise nuisance?

 

The SCA in Madrasah Taleemuddeen Islamic Institute v Ellaurie [2022] ZASCA 160 at [11]-[19] heard that Ellaurie lived about 200 metres from the Madrasah in Isipingo Beach, where there is a mosque. The KZN Court found that the five daily Azaan calls, delivered by a Muadhin, reminding people of the Islamic faith to pray, invaded Ellaurie’s personal space and ordered that the Azaan should not be audible within the buildings on Mr Ellaurie’s property. 

The SCA disagreed with this finding and set aside the order. 

Its rationale was that limited interference with property rights and enjoyment by owners of other properties in the same neighbourhood is expected and acceptable in law. Mutual tolerance is a civic value restricted by the legal yardstick of reasonableness. Mr Ellaurie placed himself within the realm of a unique or extraordinarily sensitive complainant. The reasonableness 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. 

The SCA emphasised that the Constitution provides protection for different religious beliefs and affiliations and guarantees the freedom to observe and manifest different religious beliefs. In this case, the reasonableness assessment had to consider and balance the countervailing constitutional rights. There was no room for these considerations in Mr Ellaurie’s convictions. His motivation for pursuing litigation was not the advancement of constitutional justice but rather his dislike of Islam.