For the muezzin at the Isipingo Beach mosque, the call to prayer is an act of faith. For the neighbour across the street, it had become an intrusion. When the High Court in Durban ruled on the dispute, it sided with the neighbour, granting an interdict that stops the mosque’s call to prayer, the athaan or adhan, because it can be heard from his house. The judgment reaches beyond one street in this coastal suburb of KwaZulu-Natal, and for the worshippers who gather there, and for religious communities across South Africa, its consequences could be lasting.
The neighbour’s complaint was straightforward. He told the court that the sound deprived him of the enjoyment of his property and interrupted his peace and quiet. The court agreed that his right to enjoy his residential property had been interfered with, and it granted the interdict to ensure the call to prayer would not reach his home. In reaching that conclusion, the judges held that the constitutional right to freedom of religion does not guarantee the practice of religion in the specific form of the call to prayer, and that others, including the mosque, must respect the neighbour’s right to the use of his property.
Additional reference context is available at https://www.ru.ac.za/latestnews/archives/2020/south_african_high_court_prohibits_muslim_call_to_prayer_why_it_got_it_wrong.html.
The order was directed at this particular mosque. But it sets a precedent, and another court can easily draw on the judgment in a future case. That is why the ruling matters to people far beyond Isipingo Beach.
In the view of the Associate Professor in Public Law at Rhodes University who analysed the case, the court got it wrong, for three reasons. First, it upheld the neighbour’s right to the use and enjoyment of his property without considering whether the alleged disturbance was reasonable. It did not properly ask whether the mosque exceeded its powers or acted reasonably in the circumstances. Second, it ignored the fact that those being called to prayer also hold a constitutionally protected right to practise their religion freely. Third, it failed to consider the noise control regulations in force in the city.
The legal framework matters here because it shows what a careful balancing exercise should have looked like. Under South African law, a property owner may enjoy property free from a noise nuisance, but that right is not absolute. Owners must exercise their rights within normal and acceptable limits of reasonableness, and neighbour law requires a degree of tolerance of the nuisance that comes with living side by side. The Noise Control Regulations of 1992, made under section 25 of the Environment Conservation Act 73 of 1989, empower provinces and municipalities to set their own bylaws. Since 1996, municipalities have administered noise regulations with support and oversight from provincial governments, and most bylaws distinguish between a disturbing noise and a noise nuisance.
Both the complainant’s suburb and the mosque fall under the eThekwini Municipality, whose Nuisance and Behaviour in Public Places Bylaw of 2015 prohibits noise that impairs the convenience or peace of any person. A disturbing noise is a scientifically measurable level above a certain ambient threshold: around 50 decibels is regarded as normal in an average home during the day, dropping to 40 at night. But people react differently to the same sound, so in practice it helps to ask at what point a significant number of reasonable people would begin to complain. A noise nuisance, the issue in this case, is more subjective. It covers sound that disturbs or impairs a person’s convenience or peace, and it can be regulated at national, provincial or municipal level. That includes the Muslim call to prayer and church bells alike. Even a sound that passes the scientific test for a disturbance might still be a nuisance if found unreasonable, and vice versa.
Religious practice sits at the heart of the dispute. A muezzin calling from a mosque, like church bells on a Sunday morning, is a way believers express and practise their faith. These practices fall under section 15 of the constitution, read with section 31, which protects the right of members of a religious community to practise their religion together. The policy of the Tshwane municipality offers an example of how such practices should be treated: the athaan and church bells should be seen as socially acceptable activities that must be accepted by all as a healthy aspect of urban community life, among diverse groups and individuals. They must still be conducted reasonably, not excessively loud and not at unreasonable times such as at night, but otherwise they should be allowed. The court in Durban ignored these requirements. The noise in question was not amplified and was relatively minor, and therefore reasonable in the circumstances.
Because neither the right to enjoy property nor the right to religious freedom is absolute, a fair balance must be struck between them. The court did not strike that balance, nor did it determine how far the mosque’s religious exercise actually limited the neighbour’s property rights. For the Muslim community and other religious institutions that could face similar complaints, the stakes are real. The mosque, the analysis concludes, should appeal the ruling, all the way to the Constitutional Court. Whether the higher courts will restore the muezzin’s voice to the streets of Isipingo Beach remains an open question.