“O mankind! Be conscious of your sustainer who created you out of one entity and out of it created its mate, and out of the two spread abroad a multitude of men and women. And remain conscious of God in whose name you demand your rights from one another and of these ties of kinship. Verily God is ever watchful over you.” Chapter 4 (Women) verse 1 (Holy Quran).

“O mankind, indeed we have created you from a single (pair) of a male and a female, and made you into nations and tribes that you may know one another.” Chapter 26 (Chambers) verse 13 (Holy Quran).

The universal religion of Islam endorses the view that although we humans may look and seem different, we are all, in fact, related and we share the same origin and ancestry. It calls on mankind in general to maintain good and constructive contact with other fellow humans no matter how far or near. The sense of belonging and togetherness should be extended beyond blood relations in order to encompass all human groups, races and creeds, and bring about cooperation and social cohesion between people.

Interestingly, the above Islamic ethos is one that is echoed in the preamble of the Constitution, which affirms the belief that “South Africa belongs to all who live in it, united in our diversity”. Against the backdrop of xenophobia that not too long ago plagued South Africa and threatened to destroy the garment of diversity, we, as South Africans, need to renew our pledge of “unity in diversity” that we embraced in our Constitution.

Moreover, the Covid-19 pandemic has forced us to embrace a composite concept of dignity, where our identities and beliefs have united us in helping us to meet the socioeconomic challenges of the ensuing crisis. The role of the Muslim community in reaching out to assist and contribute to solutions cannot be ignored or underplayed. Through the Islamic imperative of charity and contribution to society, Muslims in their roles as members of civil society and Islamic religious organisations revealed their commitment and fervour to embrace the needs of all South Africans. These actions were the culmination of the reformative and righteous conduct that is mandatory in Islam.

Since 1994, we have committed our country to a path that embraces and encourages diversity. This diversity is the break from a horrible past that sought to divide us on the basis of colour, race, religion and beliefs. The dangers of division, supremacist and exclusionist ideologies are part of a past which we have buried and which we need to avoid at all costs.

Moreover, Section 9 of the Constitution guarantees the right to equality, while sections 15(1) and 15(2) guarantee the right to freedom of religion, belief and opinion. Our Constitution, in its preamble, expresses its commitment to heal the divisions of the past and to establish a society based on democratic values, social justice and fundamental human rights.

It is within the above context that this article aims to analyse the importance of appreciating the diversity and multiculturalism in our society, and to provide a jurisprudential and existential critique of the dangers inherent in the Azaan (also referred to as Adhaan – call to prayer) judgment.

Diversity is the life blood of any society. We live in a world where integration and diversity should be the hallmarks of any society that wishes to grow and thrive. Embracing diversity and learning to coexist with different types of people have become necessary ingredients in today’s globalised world. In the South African context, it is even more poignant as we attempt to heal the divisions of the past and where we attempt to create an integrated society that can form the basis of a strong, proudly diversified and united nation.

The facts of this case – Ellaurie v Madrasah Taleemuddeen Islamic Institute & eThekwini Municipality in the KwaZulu-Natal Local Division in Durban – presented an opportune moment for a judge, in the setting of transformative constitutionalism, to grasp the opportunity not only to foster religious tolerance, a spirit of multiculturalism and social cohesion, but to interpret the right of property in a manner that is in accordance with the indigenous African philosophy that is waiting to be born. A philosophy grounded in ubuntu – that sees neighbours as family and as part of one’s identity. It was indeed a momentous opportunity to infuse neighbour law with the spirit of ubuntu and give a post-apartheid, post-colonialist and indigenous interpretation to this important area of property law.

The failure by Judge J Mngadi to embrace this opportunity has proclaimed to South African society, loud and clear, that there is a jurisprudential, existential and ontological crisis that faces us as a nation that needs to be urgently addressed.

Since the advent of our constitutional democracy, debates have been raging among the legal academia regarding the concept of radical transformation. The issue was whether the notion of transformative constitutionalism was able to usher in radical transformation that was needed to overturn the colonial and apartheid institutions. Many academics questioned whether “the law, monumental constitutionalism and human rights vision could take over the human imagination to the benefit or to the detriment of the ordinary, the way people actually live and more pertinently the complexities of life” (Van Marle, K: The spectacle of post-apartheid constitutionalism (2017) (16)2 Griffith Law Review 412).

In the Azaan case, we have an example of the learned Judge Mngadi being called upon to give meaning to neighbour law in the spirit of the South African Constitution. First, he failed to carry out the first task of a judge – which is to engage in a balancing exercise in terms of Section 36 of the Constitution and to weigh the competing property rights on the one hand, and right of freedom of religion and equality on the other. Instead he assumed an unconstitutional position of favouring only one aspect, “the undisturbed enjoyment of property”, which imbalance now threatens to silence the sounds of our beautiful nation.

He missed the opportunity of giving a truly South African flavour to the right of property by infusing it with the concept of ubuntu, neighbour law and peaceful coexistence. He imposes on our society a restrictive view that is almost reminiscent of the apartheid mentality in its design and encourages intolerance, selfishness and arrogance.

The judgment refuses to endorse a society filled with positive sounds of church bells, calls to prayer, church singing, the sounds of bhajans emanating from temples and other cultural practices that are the beautiful sounds of a diverse and rainbow nation in motion. Instead, the judge embraces “an individualist … and Kantian stance, respect for the individual rather than an indigenous communitarian African one” which beats to the drum of ubuntu (Motha, S: Archiving colonial sovereignty: from ubuntu to a jurisprudence of sacrifice (2009) 24(2) SA Publiekreg 301).

The outrage against the judgment by the greater Hindu and Tamil communities living in the Isipingo Beach neighbourhood has reflected this true spirit of ubuntu and it has sent a strong message to the world that respect for diversity and multiculturalism is part of the fabric of South Africa, and that any intolerance of this is unacceptable to the masses.

Ubuntu is a philosophical concept that links humanness and wholeness. Ubuntu also explains obligations of individuals in the enjoyment of their rights as part of the moral relationship between the person, the individual and the community. This assertion is confirmed by Tata Madiba, who said “I am what I am because of who we all are”. It is a living philosophy that must be heard through the voices of our judges and academics, and who need to revive its potential as a system. It calls on us as a society to hear the voices of its people, be they voices on the hilltops of the villages, church bells, temple chants or in the madressas and mosques, in the neighbourhoods, that call others to prayer. 

Let’s pray together, South Africa. Let’s pray that the richness and beauty of our united rainbow nation is always protected against the forces that seek to divide us. Ameen. DM

Saadia Gani is a property lawyer in private practice and is currently completing her master’s in multidisciplinary human rights. This article was written on behalf of Muslim Lawyers for Social Justice.