In the case of Ellaurie v Madrasah Taleemudeen Islamic Institute and Another, Judge Mngadi in the KwaZulu -Natal High Court granted an interdict against the Madrasah Taleemuddeen to ensure that its call to prayers are not audible in the building of its neighbour Mr Ellaurie’s house across the street despite the fact that the calls to prayer were not amplified in any way.
The judgment was criticised across the board by legal academic and the general public of all faiths, who actively defended the call to prayer as being part of the fabric of a diverse society. The judgment was also criticised by academics not having applied the law of nuisance correctly nor of having engaged in a substantive balancing of the competing constitutional rights to property, freedom speech and the right to dignity.
The madressah lodged an application for leave to appeal the judgment, and the appeal was dismissed on March 26.
The rights questions that the dismissal of the appeal in the case of Ellaurie v Madrasah Taleemuddeen Islamic Institute and Another raises are as follows:
1. In the absence of unreasonable interference can one man’s right of undisturbed enjoyment of property trump a community’s right to practise a fundamental component of its religious life?
2. Can one man’s right to dignity be said to be infringed by the legitimate exercise of the right of religion of a school (madressah) in the form of an unamplified call to prayer and which practice is widely endorsed and respected by the rest of the community?
Even as the answers to these questions seem instinctively to be in the negative, one finds a learned judge dismissing an appeal that would seek to obtain this clarity.
Despite the various grounds clearly set out, the public policy considerations and the far-reaching impact of the judgment on madressahs, mosques and churches and any religious practices that may involve vocal activity intrinsic to the exercise of religious freedom, the judge nevertheless dismissed the application for leave to appeal.
At the heart of the dismissal for leave to appeal by learned Judge Mngadi is a clear endorsement of a value system that is alien to indigenous African philosophy and the values that should be at the heart of judicial adjudication.
It lays bare the deep-seated jurisprudential crises that faces us a nation.
The absence of Ubuntu in the political and social arena is evident from the corruption and looting of the country’s resources over the years as well as the deep inequality in wealth and resource distribution.
Now the absence of Ubuntu as the central philosophy of the human rights regime is creeping in and slowly being heard as the courts are beginning to endorse values that are alien to the promotion of diversity, multiculturalism and communitarianism that should underpin our transformative constitutional dispensation.
As we face the consequences of such a dismissal the call of Professor Ramose rings loud. For many years Ramose has been calling for Ubuntu to be re-instated as the central epistemology and ontology of the Bantu people (Ramose, MB In Memoriam: Sovereignty and the “new” South Africa (2007) 16(2) Griffith Law Review 310) so that the seeds of decolonisation can be planted and bear fruit in the minds of intellectuals, judges and academics and be transported in the hearts of the politicians, economists and the masses of South Africa so that a truly decolonised South Africa can be reborn.
Ramose explained how Ubuntu is an organic living philosophy that is constantly in motion . It is also a philosophical concept that conceptually links humanness and wholeness.( Ramose, MB ‘Ubuntu: affirming a right and seeking remedies in South Africa’ Praeg, L, & Magadla, S (2014) Ubuntu: Curating the archive).
According to Ubuntu, no single human life is ontologically more important or qualitatively superior to any other human life. Hence the only quality or value that is equal to any one human life is another human life. Thus, any unjust violation of this natural equality of all human beings constitutes an injustice.(Ramose above)
Ubuntu also explains obligation as the moral relationship between the person, the individual and the community. This assertion is confirmed by the Somali proverb which says “a man who owns 100 goats but his relatives have nothing is poor”.
Ubuntu embraces respecting human dignity in an African way that must find a voice in the constitutional and judicial interpretation so that we can avoid the pitfalls that we have experienced in this case.
If the philosophy embedded in Ubuntu was applied to interpret the rights involved in this case, the unamplified call to prayer would have been seen as enriching the dignity of Mr Ellaurie as he found himself in the midst of others practising their right to freedom of religion in a peaceful manner.
Even the common law of nuisance would have been given an African interpretation that would allow for social cohesion and we would not be entertaining the debates around the dismissal of the appeal.
The fact of the dismissal of the appeal and Mr Ellaurie’s elation that his individual “rights” have been vindicated is an indication that Ubuntu has been silenced.
It is now time for the call of Ubuntu as a living philosophy to be heard through the voices (even unamplified) of our judges and academics who need to revive its potential as a value system.
* Saadia Gani is a property lawyer who is completing her Masters in multi-disciplinary human rights at the University of Pretoria.
** The views expressed here are not necessarily those of IOL.