THE KENYAN STATE AND THE "SHAKAHOLA FOREST MASSACRE” - Policing and Managing Religious Beliefs

 WHEN IS RELIGION SOUND ACTIONABLE AS A NUISANCE IN SOUTH AFRICAN LAW

ES Nwauche (Prof)

When is noise emanating from a neighbour’s immovable property actionable in law? The Supreme Court of Appeal in Madrasah Taleemuddeen Islamic  Institute  v. Chandra Giri Ellaurie [2022] ZASCA 160 (24 November 2022)  that for nuisance to be actionable, it has to seriously and materially interfere with the plaintiff’s ordinary comfort and existence.     

Mr. Ellaurie lives about 20 metres from the Madrasah Taleemuddeen Islamic  Institute’s property in Isipingo Beach, South of eThekwini in the KwaZulu-Natal Province. Of South Africa. On its property, the Madrasah conducts a school for Islamic studies with over 300 (three hundred) students who live in boarding facilities on the Madrasah property,  spread over three lots. Every day (5), five prayers are performed in the mosque on the Madrasah property. The Azaan, delivered by a Muadhin, precedes each prayer to remind people of the Islamic faith to come to prayer. According to Mr. Ellaurie, the Azaans invaded his personal space and happened at an ‘unearthly time’, the first being around 03h30 at the start of summer.  

Mr Chandra Giri Ellaurie, obtained an interdict in the KwaZulu-Natal Division of the High Court, Durban against the Madrasah in terms of which the High Court ordered that the sound of the ‘Call to Prayer’ (the Azaan) should not be heard at Mr Ellaurie’s property situated 20 metres away. The Madrasah appealed against this order to the Supreme Court of Appeal (SCA).  

The SCA held that Mr Ellaurie did not lead evidence of the exact nature and level of each Azaan and its duration in each instance. There was also no evidence of what a reasonable Azaan would be in the circumstances. Instead, the evidence tendered was that of his profound dislike of Islam. Furthermore, Mr. Ellaurie placed himself within the realm of a specially or extraordinarily sensitive complainant. The Court pointed out that the reasonableness of the Azaan could not be judged by Mr Ellaurie's deep aversion to the Islamic faith. It had to be judged by the standard of an ordinary person living in Isipingo Beach on which there was little evidence. 

The Court restated the standard for determining unreasonable noise as an objective evaluation of the circumstances and milieu in which the alleged nuisance occurred. The factors to be taken into consideration in such a determination include: the seriousness of the interference; the time and duration of the interference; the possibility of avoiding the harm; and the applicant's sensitivity thereto, especially when the plaintiff has a special or extraordinary sensitivity. The SCA did not apply these standards to the facts of this case, and we have to wait, hopefully soon, for such an engagement.    

Broad conclusions are evident from the decision of the SCA. The first is that in appropriate circumstances, the contextual nature of the reasonable man's standard enables a court to hold that sacred sound (noise) is unreasonable and materially affects surrounding properties. Second, in reaching that determination, the importance of sound as ritual would be a material factor in determining unreasonable noise.   

Another significant and gratifying finding by the SCA is that the High Court was wrong that Section 15(1) and (2) of the Constitution of the Republic of South Africa does not guarantee the manifestations of religious freedoms. As the Court pointed out, the Constitution, therefore, does not only protect different religious beliefs and affiliations, it also guarantees the freedom to observe and manifest different religious beliefs.