The Supreme Court of Appeal (SCA) was recently tasked with establishing (or rather re-establishing) when exactly a neighbour’s actions would constitute an interference to another’s right to undisturbed use and enjoyment of their property. In a judgment handed down in the SCA on 24 November 2022, the fundamental issues relating to nuisance (specifically, noise disturbance) were reaffirmed. The question before the Court was not whether the specific noise constituted a disturbance, but rather when a disturbance would be actionable.

Background

The matter relates to an interdict granted by the Durban High Court against the Madrasah Taleemuddeen Islamic Institute (“the madrasah”), in terms of which the “Call to Prayer” (the Azaan) generated from the property of the madrasah was prohibited from being audible within the buildings of its neighbour, Mr Ellaurie. Mr Ellaurie approached the High Court seeking that i) the ‘noise’ should be prohibited, ii) the madrasah is ordered to cease its operations on its property, and iii) that the property is sold to an organ of state or a non-Muslim organisation. The High Court only granted the relief in terms of the ‘noise’, and the madrasah appealed against the High Court’s order.

The madrasah in question is situated in Isipingo Beach, South of eThikiwini, and about 20 metres from Mr Ellaurie’s property. On its property, the madrasah conducts a school for Islamic studies. About 340 students live in boarding facilities on the madrasah property, which is spread over three lots. There is a mosque located on the madrasah property. Every day five daily prayers are performed in the mosque. Each prayer is preceded by the Call to Prayer.

The litigation follows multiple failed mediation attempts by the City of eThikiwini and the South African Human Rights Council (SAHRC).

Mr Ellaurie’s strong distaste for Islam

Mr Ellaurie attempted to put forward several arguments in respect of the relief he seeks, but the Court chose to only deal with the ‘noise nuisance claim’. The other arguments strongly revealed his abhorrence of the Islamic faith, rendering the validity of the arguments scrutable. Among other dangerously distasteful arguments, Mr Ellaurie argued that the Calls to Prayer gave a ‘distinctly Muslim atmosphere to the area’, and that many non-Muslim people found them repugnant. He lamented the growth of the Muslim community in the 15 years preceding his application to the Court, and argued that, as a result of ‘their dominance in the town, Muslim people had become arrogant’. He further argued that Islam promotes racism, bigotry and sexism.

The ‘Constitutional’ Argument

In initially granting the interdict sought by Mr Ellaurie, the High Court found that the right to freedom of religion was ‘no guarantee of the practice or manifestations of religion’ – which sounds much more complicated than it is. In effect, the High Court found that although the right to freedom of religion is guaranteed, the right to practice religion in a person’s desired manner is not. The High Court found that because Mr Ellaurie had shown that the Calls to Prayer do in fact interfere with the enjoyment of his ‘private space’, and the madrasah had not shown the Calls to Prayer to be essential to the practice of Islam, the application had to succeed.

In the SCA, it became quite obvious that Mr Ellaurie’s complaints and arguments were rooted deeper than usual noise complaints. Apart from the hateful undertone of the arguments, it went to the heart of a Constitutional right: The right to freedom of religion.

The right to freedom of religion has been a regular visitor in South African courts in the Constitutional era. The judgments in well-known matters such as Christian Education South Africa v Minister of Education and Prince v Law Society of the Cape of Good Hope have all returned and underlined the most fundamental test: reasonableness.

The Common Law

As with most principles of South African law, neighbour law finds its history in the Common Law. As early as 1881 (in Holland v Scott), the Court stressed the contextual nature of the test of “reasonableness” of the interference caused by a neighbour. The Court held that for nuisance to be actionable, it had to “seriously and materially” interfere with the plaintiff’s ordinary comfort and existence. In 2023 (142 years later) the test remains the same.

In clarification, it has been found that the factors determining reasonableness include:

1. The seriousness of the interference;
2. The time and duration of the interference;
3. The possibility of avoiding harm; and
4. The applicant’s sensitivity thereto.

The Applicant’s Sensitivity

Because people are inherently different from one another, the test for reasonableness could never be a subjective one. It is the very purpose of the law to bring clarity and order to a public where its members differ in countless ways (whether age, gender, sexuality, religion etc). It would be simply impossible for the law to operate from the subjective viewpoint of every individual.

A well-defined approach has been for the Court to invoke the objective “reasonable man” test. This test, more politically correctly termed “the reasonable person” test, places the reasonable person in the same situation as the plaintiff/applicant and then considers whether the reasonable person would also find the disturbance or interference intolerable. If the reasonable person would, the Court must likely intervene. If not, the plaintiff/applicant might be particularly sensitive to the specific disturbance.

The Judgment

The abovementioned factors were all considered in the SCA’s judgment in this matter.

Firstly, the Court considered the technical grounds for an interdict (of any nature) and found that the application for an interdict failed to meet the requirements of a final interdict. The correct position in law is that a person who seeks a final interdict must show i) that they have a specific right, ii) that their right is being unreasonably interfered with, and iii) that they had no other satisfactory remedy than to seek the interdict. The SCA held that the High Court erred in finding that the madrasah had the duty to show the Call to Prayer to be essential to the practice of Islam. Instead, Mr Ellaurie had the duty (as he was the applicant).

Secondly, the Court considered the factual case made out by Mr Ellaurie in his application. Although Mr Ellaurie clearly explained what behaviour he was objecting to, he did not explain the nature and level of the noise, or how long it lasted. Mr Ellaurie failed to tender any evidence of what would be reasonable.

Thirdly, consideration was given to Mr Ellaurie’s strong disdain for the Islam faith. Apart from certain assertions above, Mr Ellaurie took exception to what he considered to be the elevation of the Islam faith above all other faiths.

Lastly, the Court held that Mr Ellaurie placed himself within the realm of a specially or extraordinarily sensitive complainant. Critically, the Court found that the reasonableness of the Call to Prayer could not be judged by Mr Ellaurie’s standards – which stemmed from a deep aversion to the Islamic faith. Instead, it had to be judged by the standard of the ordinary person living in Isipingo Beach (whose standard was not placed before the Court).

Conclusion

In conclusion, the test for an actionable noise disturbance remains what is reasonable. For the law to keep order and protect, there can never be a precise rule on what constitutes noise disturbances and the true test will also be in the facts of the matter.