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A very strange judgment in KZN as court comes close to endorsing Islamophobia

Dr Thomas Coggin is a senior lecturer at the University of the Witwatersrand. He co-ordinates and teaches property law, and his research lies at the intersection of property law and the urban and spatial environment. He is the joint global co-ordinator of the International Research Group on Law & Urban Space, and is a fellow of the Urban Law Centre at Fordham University, New York.

The recent judgment by the KwaZulu-Natal High Court in favour of a Hindu man who objected to the Muslim call to prayer emanating from a nearby Madrasah appeared to ignore neighbour-law principles. Instead, the judgment in its one-sidedness almost appears to endorse the applicant’s Islamophobia.

In the case of Ellaurie v Madrasah Taleemuddeen Islamic Institute & eThekwini Municipality, the KwaZulu-Natal Local Division in Durban was called on to resolve a classic neighbour-law dispute. In this case, the applicant requested the court to interdict the sounding of the call to prayer beyond the boundaries of the respondent’s property.

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Bizarrely, however, the court attempted to resolve this dispute without any reference to actual neighbour-law principles. The result is that the judgment not only appears to endorse the applicant’s blatant Islamophobia, but it sets poor precedent.

The call to prayer, or the Adhan, is part of the practice of Islam. The Adhan represents a call to worshippers to come together, and it is also an outward and audible manifestation of community identity. In a pluralistic democracy such as our own, these practices are not only important to these communities, but also celebrate the diversity of the South African urban environment.

Judge J Mngadi, who delivered the decision, appeared oblivious to the diversity of the South African neighbourhood. Indeed, one of the applicant’s claims – that the Madrasah Taleemuddeen turned Isipingo Beach from a “diverse, peaceful residential suburb” into a “Muslim enclave” – was left unchallenged. This is unfortunate, especially as neighbour law and nuisance are often employed worldwide as a legal mechanism against diversifying communities.

The most unusual aspect of the case, however, is how the judgment was so poorly grounded in the law. This kind of dispute is not new in neighbour law. In fact, the judge would have done well to draw on Garden Cities v Northpine Islamic Society, decided in the Cape Provincial Division in 1999. In this case, the applicants sought an interdict against the respondent, arguing that the amplified sound in the call to prayer presented a nuisance in law, and that it went against the property’s original sale agreement, which forbade the use of sound amplification equipment. The applicant had no objection to a call to prayer by an unassisted human voice – their primary qualm was that the noise was too loud.

The judge in Garden Cities granted the interdict, but did so partly on the basis that the call to prayer – without sound amplification – has for centuries been a precept of Islam, and partly because amplified sound might disturb the surrounding residents’ use and enjoyment of their properties.

This balancing exercise between the interests of property owners lies at the heart of neighbour law. A judge is required to consider what is reasonable based on the divergent interests of the parties, and their decision should be geared towards a harmonious outcome that ensures the parties can still be neighbours.

South African neighbour law emerges from a long history of principles employed in balancing these conflicting interests. Among other considerations, they require a judge to consider the locality or the character of a neighbourhood; whether the applicant is simply being oversensitive in alleging the nuisance; whether any less harmful ways of achieving the “nuisance” are available; and whether there is any social utility in allowing the nuisance to continue. (Social utility asks whether the nuisance benefits society. Consider, for example, the benefit of an ambulance siren rushing to assist someone: the noise would outweigh the nuisance.)

Judge Mngadi considered neither these principles, nor any relevant case law as is required by the doctrine of precedent. Instead, the judge delivered a general missive that unduly privileged only the applicant’s use and enjoyment of their property. There is no consideration of the Madrassah’s interests in the matter, and no recognition that their own use and enjoyment of the property may, in fact, include the call to prayer.

The judge would have delivered a more nuanced judgment if he had drawn on neighbour law principles and case law. For example: as a residential neighbourhood, it may be reasonable for the call to prayer to be limited to certain times of the day; it may also be reasonable that no sound amplification equipment is used. At the same time, however, the judge may recognise the social utility in sounding the call to prayer as a way of affirming group identity and cultural diversity. He may also have regarded the applicant as being overly sensitive to the nuisance, which would tip the scales of reasonableness in favour of the respondent. Given the fact that the applicant believed Islam was a “false religion”, one may infer – to put it mildly – that he was overly sensitive.

The judge does not consider the appropriate law and, as a result, the judgment in its one-sidedness almost appears to endorse the applicant’s Islamophobia. Indeed, it is profoundly absurd that the only reason the judge refused to “ban” the Madrassah “on religious doctrinal grounds” (as requested by the applicant) was because there were other mosques in Isipingo Beach, and to ban the Madrassah would be “a futile exercise”.  

Judges play an important role in resolving conflicts in the urban and spatial environment. At a minimum, this requires knowledge of the relevant area of law, and certainly requires a strong rebuke of a party using the court to air their prejudice in favour of monochromatic communities. Unfortunately, it appears that the judge was unwilling or unable to do either. DM

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