Quote of the week

Over the last 150 days we have learned much about the power of the habitual in post-millennial, post-apartheid South Africa. We have heard it in the grumbling, cavilling, quarrelling and grousing about the logic (or lack of) of government decrees. We have also seen it in the defiance of logic among the many bourgeois folks who mistook their entitlement for rights, whether to go running, do yoga on the beach, surf, get takeaway coffees, or to purchase items subjected to restricted trade… We saw it in the contradictory messages relayed by official government channels, in the conflict between some experts advising government, between government officials and such experts, and in the ways in which opposition parties contradicted themselves as they opposed government proclamations.

Angelo Fick
Johannesburg Review of Books
26 August 2020

Bizarre judgment on the call to prayer is wrong in law and rewards religious prejudice

Last week the KwaZulu-Natal High Court ordered a Madrassah in Durban to ensure that its calls to prayer are not audible in the building of a neighbour’s house across the street. The judgment is badly argued and clearly wrong in law as the law requires neighbours to “live and let live”. But it also has the unfortunate effect of indirectly endorsing religious prejudice against the Islamic faith.

If you live in a town or city, you are going to encounter noise. Lots of it. Traffic noise, dogs barking, drunken fighting, church bells, loud music, cheering sports fans, and – in some cases – the call to prayer. Your neighbours may also disturb your peace in other ways. Golf balls landing in your back yard (more about that later), the leaves from the neighbour’s tree clogging up your Kreepy Krauly, the pong of your neighbour’s home brewed pineapple beer souring the air, cars parked on your front lawn; all things that get busybodies writing angry letters to the Atlantic Sun or the Sandton Chronicle or Merle from Fish Hoek calling in to John Maytham’s shown on Cape Talk to complain.

Most of us would not dream of approaching the court for an interdict to stop these kinds of “nuisance”. (Admittedly, at the heights of the lockdown I briefly considered getting an interdict against the body corporate WhatsApp group to stop the spread of fake news.)  Most of us won’t do so, because there are far more important things to worry about, and because we understand that these small inconveniences – if they are inconveniences at all – are a small price to pay to get all the other benefits of living in a city as part of some kind of community.

There are also very few judges who will entertain the granting of such an interdict – unless the disturbance goes beyond what could be reasonably expected. Yet, last week Mngadi J, in Ellaurie v Madrasah Taleemuddeen Islamic Institute and Another, granted an interdict against the Madrasah to ensure that its calls to prayer are not audible in the building of a neighbour’s house across the street. This is despite the fact that the calls to prayer are not amplified in any way, and that the “disturbance” (I am using the term loosely here) was clearly of a minor nature.

Mr Ellaurie lives across the road from the Madrasah Taleemuddeen Islamic Institute in Isipingo Beach. He holds extremely negative views of Islam, and claims the religion “lacks commitment to truth and the pursuit of truth”. From reading the court judgment I get the impression that Mr Ellaurie is your average neighbour from hell. He has been complaining about the calls to prayer from the Madrassah since 2003. According to him:

the Call to Prayer is a foreign sound, which invades his private space. It bears down over to him. It deprives him of the enjoyment of his property and interrupts his peace and quiet. It further disrupts his sleep, listening to music and meditation. … [T]he Call to Prayer gives the suburb a distinctly Muslim atmosphere. It attracts those of the Islamic faith and keeps non-Muslims away. The Muslim community in the area has increased by 30 percent in the past 15 years. The dominance of one group has resulted in arrogance and domination by the dominant group.

The High Court granted the interdict in favour of Mr Ellaurie, based on the alleged infringement of Mr Ellaurie’s property rights. Mngadi J explained the court’s reasoning as follows:

The applicant is entitled to enjoy the use of his residential property. It is part of his private space. Others are obliged to respect the applicant’s right to the use and enjoyment of his property… The Madrasah does not contend that it is essential, in order to practice its religion, that the Call to Prayer be made in such a way that it interferes with the applicant’s use and enjoyment of his private space, or that the current interference interferes least with the applicant’s private space.

The court provided no analysis of the extent to which the law protects one’s undisturbed enjoyment of property. Neither did it seriously consider the freedom of religion of those worshipping at the Madrassah.

While the High Court briefly mentioned the right to freedom of religion – which includes the right to entertain religious beliefs, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination – it completely failed to consider how this right may limit Mr Ellaurie’s property rights. Intstead the freedom of religion concern is dismissed with the nonsensical statement that the Call to Prayer “is a manifestation of the Islam religion, it is not Islam itself”. (It is nonsensical because, as the court itself explained, freedom of religion includes the right to manifest religious beliefs.)

If the court had done more than pay lip service to the right to freedom of religion, it could not possibly have granted the interdict. But in this case, it was not even necessary to rely primarily on the right to freedom of religion. This is because in terms of the common law, the owner of a property does not have the kind of absolute right to undisturbed enjoyment of their property as assumed by the judge.

In terms of the common law of private nuisance, property owners are required to tolerate a degree of nuisance from their neighbours. (Bad news, I know, but there is little you can do to stop your neighbour from loudly repeating what he believes are Gareth Cliff’s latest bon mots.)  This is common sense, but while reading the Madrassah judgment, I also vaguely recalled from my LLB studies that there was the case of Gien v Gien which we were told at the time explained this principle. So, as one is supposed to do when one engages with the law, I did a quick search on Saflli, which produced the 2007 Western Cape High Court judgment of Allaclas Investments (Pty) Ltd and Another v Milnerton Golf Club and Others.

The Allaclas case dealt with the owner of a property situated next to the Milnerton Golf Course, who approached the court for relief against the Golf Course because his property “has on several occasions been struck by golf balls hit by players playing the 6th hole”. I know what you are thinking. First, you are wondering how many of these petty cases end up in court and what percentage of these litigants write angry letters to the Milnerton Tyger Burger, or phone in to John Maytham. Second, you are torn about who should win this case, because in principle one should never be on the side of a golf course.

But such musings do not help us to understand why the KwaZulu-Natal High Court made a serious mistake in granting the interdict against the Madrassah. Which means I now need to explain the legal principles (used by the court in the Allaclas Investments judgment) about the amount of “nuisance” one is legally required to tolerate.

The starting point for this enquiry is whether the neighbour whose conduct is being complained of exceeded their powers of ownership. In short, we ask what would be reasonable and fair in the circumstances. In this case, we would ask whether it is reasonable and fair for the Madrassah to conduct – unamplified – calls to prayer as a manifestation of religious beliefs as guaranteed by section 15 of the Constitution.

The court in Allaclas Investments explained that the actions of a neighbour whose conduct is being complained of will become unreasonable when it ceases to be “expected in the circumstances” or when it becomes such that a neighbour need not tolerate it under the principle of “give and take” or “live and let live”. The powers of ownership extend only as far as there is a duty on his neighbour to endure the exercise of those powers. If a neighbour exceeds these powers he or she infringes the right of their neighbour. Only then would it constitute wrongful conduct that could be interdicted.

In layperson’s terms, the law does not reward the overzealousness or hypersensitivity of people who are easily disturbed by noise or other types of nuisance, the kind of noise or nuisance, that is to be expected if one lives in a city or a town. Moreover, the law definitely should not reward such overzealousness and hypersensitivity if it appears to be animated by religious bigotry.

Based on these principles the court held in the Allaclas Investments case that the complainants had to accept that they bought a house which borders on a fairway of a golf course, and that their right to free and undisturbed use of their property would be interfered with to some extent. The mere fact that a golf ball entered their property or was found there did not in itself constitute a nuisance. (For the same reason, you are not going to get the court to order the municipality to close the main road in front of your flat for through traffic because you are disturbed by the traffic.)

The same principle should have applied in the Madrassah case. The calls to prayer are a normal part of the sights and sounds of any community where there is a mosque or other Islamic religious institution. It forms part of the rich diversity of that neighbourhood, and if you are intolerant of these sounds, your intolerance is not supported by the law. Any reasonable neighbour would expect to hear such calls to prayer in their neighbourhood, and will accept that this is  part of the “give and take” that allows us to live together as a community.

Sadly the High Court rewarded Mr Ellaurie’s intransigence. Maybe it is time for the Madrassah to start teaching the pupils how to play golf.

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