How Loud Is Too Loud? Competing Rights to Religious Freedom and Property and the Muslim Call to Prayer (Adhan or Azan) in South Africa

Najma Moosa

doi:10.3390/rel12050349

Abstract

This article approaches the position of the call to prayer (adhan or azan) in South Africa from the perspective of both legislation and case law. Although only an unamplified adhan has religious status in Islam, Muslim religious authorities (ulama) have since the twentieth century also approved of, and permitted, an amplified adhan. The adhan has been rendered in both forms from South African mosques (masjids) for some 223 years. However, the unamplified adhan has recently come under the legal and judicial spotlight when the volume of its rendering by human voice was restricted. In August 2020, after prior attempts at municipal level and mediation had been unsuccessful, a high court in KwaZulu-Natal, South Africa, ruled that the sound of the unamplified adhan emanating from a mosque located on the premises of an Islamic institution (madrassa) in the city of Durban should not be audible within the house situated on nearby property belonging to a Hindu neighbor. Wide media coverage reported that the ruling was publicly decried and met with criticism. The Madrassa lodged an appeal in September 2020 and the matter is ongoing. The High Court’s decision is binding in KwaZulu-Natal, a province where Hindus, as a religious minority, are concentrated. The article highlights that although the decision is not binding on similar courts in other provinces, its outcome may yet have far-reaching consequences for the adhan as a religious and cultural heritage symbol, and for religious symbols generally, because similar complaints have been lodged, albeit against amplified adhans, against several mosques located in major cities (Cape Town and Tshwane) of two other provinces where Muslims, as a religious minority, are largely concentrated. The article examines the adhan in the context of competing constitutional rights to religious freedom and property (neighbor law) in South Africa. The article proffers some recommendations for the way forward in South Africa based in some instances on the position of the adhan in several countries. It concludes that, ultimately, unamplified, unduly amplified and duly amplified adhans may all yet be found to constitute a noise nuisance in South Africa, if challenged and found to be unreasonable.

Highlights

Institute and Another2 ruled that the sound of the unamplified adhan emanating from a mosque located on the premises of Madrasah Taleemuddeen should not be audible within the house situated on nearby property belonging to Mr Ellaurie, a Hindu neighbor
The Judge gave little, if any, consideration to the rights of the students and staff who were exercising their right to religious freedom and the manifestation thereof through the adhan rendered from the mosque on the property of the Madrassa and, failed to conduct a limitation analysis according to the criteria identified in section 36 and interpretive guidelines provided in international law
(ii) and Section 4, I argued that a consideration would be the size of a religious group in a particular community. While this could apply to any religion or culture, : would this apply in contexts where Muslims form a minority and others might find it an imposition? If the adhan only serves to call Muslims to prayer, and they are a minority, would not the nuisance to the majority community be of greater weight? it can be inferred from information attributed to Mr Ellaurie that the adhan gave the Isipingo area “a distinctly Muslim atmosphere” and “[t]he Muslim community in the area has increased by 30 percent in the past 15 years”147, no empirical evidence is provided in the case to indicate that Muslims may outnumber other religious groups in Isipingo

Summary

Introduction

The article highlights that the Ellaurie case may yet have far-reaching consequences for the adhan, and for religious symbols generally, because similar complaints have been lodged, albeit against the use of amplified adhans, against several mosques located in Cape Town, in the Western Cape province, and Tshwane (formerly Pretoria) in the Gauteng province These are major cities where Muslims are largely concentrated.

The Adhan as a Religious Symbol and as a Cultural Heritage Symbol in

Some Recommendations for the Way Forward

Findings

Conclusions