All Australians were horrified and devastated by his despicable act.

New Zealand is family to us. Today, we send our love across ‘the ditch’ and I had the opportunity to pass on those wishes earlier today to New Zealand PM Jacinda Ardern.

Out of the horror of this event there also emerged the incredible grace and beauty of Farid Ahmed, who I met with Jenny at the memorial service in Christchurch and again in Sydney when he came to visit me in March this year.

Farid lost his wife that day and his message is one of hope and love. Inspirational.

I pay tribute to the Muslim community of New Zealand and in Australia who have supported each other and reflected the goodness of faith. You have been a light answering the darkness.

Modi laying foundation of grand temple on Babri Mosque site ‘changed India into Hindu nation’

By Sajeda Haider

On August 5, Indian Prime Minister, Narendra Modi, laid the foundation stone of a grand temple dedicated to the birthplace of the mythical character Ram whom Hindus worship as ‘maryada purushottam’ (a man who is supreme in virtue and righteousness).

The new massive temple will be constructed on the very spot where the 450-year-old Babri Mosque stood in the small north Indian town of Ayodhya, which was torn down by Hindu nationalist mobs on December 6, 1992.

However, many in India believe that Modi, while performing the rituals has laid the foundation of not only a temple but also a Hindu Nation. “Today is a victory of majoritarianism over liberty and equality,” said Asaduddin Owaisi, Member of Parliament and President of All India Majlis-e-Ittehadul Muslimeen (AIMIM) on August 5.

“By attending the ‘bhoomi pujan’ (Hindu religious ceremony) the Prime Minister has laid the foundation of a Hindu Rashtra (nation), of making this country a theological country which goes against the basic structure of the Constitution,” added Owaisi.

What started off as a civil dispute over who owned the 2.77 acres of land on which the Babri Mosque stood was turned into a symbol of cultural subjugation of Hindus by Muslim invaders of the 16th century by the Bharatiya Janata Party (BJP) in 1989, using it as a vehicle to achieve political power in modern India.

During a national executive meeting of the BJP in 1989, when the party only had two MPs in the Indian Parliament, the leaders adopted a resolution to ‘liberate’ the birthplace of Lord Ram and build a grand temple there, never mind the fact that Ayodhya already had more than 6,000 temples all dedicated to the worship of Ram or that there was a temple called Ram Janmasthan (literally means birthplace of Ram) next to the Babri Mosque.

In 1990 the then President of the BJP, L K Advani, took out a road trip across northern India to ‘educate’ Hindus about the movement and mobilise religious sentiments that inculcated a sense of victimhood in the majority community.

The Ram Temple movement polarised the politics of northern India along religious lines that eventually led to the destruction of the Babri Mosque, increased BJP’s tally in Parliament and allowed them to form state governments in what is called the Hindi heartland.

For Muslims, the Babri Mosque became a symbol of their status as equal citizens in a secular republic, even as the sectarian riots that followed the demolition of the mosque became the reality that was regularly repeated in state after state.

In the decades since 1992, Muslims reposed their faith in the Supreme Court of India for justice, hoping that the civil suit would be decided in their favour, and those guilty of destroying the mosque would be punished, thereby restoring their equal position in society.

In the meantime, the BJP having tasted blood continued to polarise society with each passing election and went from strength to strength. Modi successfully used Hindu politics that came to be known as ‘Hindutva’, in the western state of Gujarat from 2002 after the anti-Muslim pogrom that claimed thousands of lives and left hundreds of thousands of Muslims homeless.

He became the new face of Hindutva politics as his Government subjugated Muslims in Gujarat to second-class citizens. This endeared him even more to Hindu nationalists, particularly when he promised to bring the ‘Gujarat model’ to the rest of India if he was elected prime minister.

In May 2014, he did exactly that. The BJP was elected as the single largest party and along with its allies; it formed a government in Delhi with Modi as the Prime Minister. In the six years since then, Indian Muslims have seen the worst attacks on their lives, rights and position in society. They have been pummeled into the ground and pushed to the margins on all fronts.

On November 9, 2019, the Supreme Court gave its final verdict on Babri Masjid (Mosque). While describing the destruction of the Babri Masjid as ‘criminal’ and an ‘egregious violation of the law’, it gave the entire land to a Hindu trust to be formed by the Government which would monitor the construction of a Ram temple.

Even as trust was formed, it was packed with BJP loyalists who have effectively taken over temple construction. In his victory speech after performing the religious rituals, Modi drew parallels between August 5 and August 15 — the day India won independence from the British — and placed the idea of liberation from ‘cultural subjugation’ on the same pedestal as political independence.

Critics including left-wing political parties like the Communist Party of India and Communist Party of India (Marxists) hit out at the Prime Minister for making the remarks and attending the event saying it marked a “dark day for democracy and secularism in India.” D Raja, General Secretary of the CPI said that the Prime Minister has “given de facto official status to one religion.

This will have far-reaching implications on our Republic and its future.” BJP’s ideological fountainhead, the Rashtriya Swayamsevak Sangh (RSS), has dreamt of turning India into a Hindu nation where Hinduism would be the national religion and only Hindus would enjoy full citizenship rights, while all other religious minorities would be second-class citizens from even before 1947 when India became a sovereign nation-state. That dream is fast turning into a reality.

MUSLIM NEWS UK

Judge makes the wrong call in favour of your average neighbour from hell                            

By Pierre De Vos

SOUTH AFRICA: Last week the KwaZulu-Natal High Court ordered a madrasah in Durban to ensure that its calls to prayer are not audible in the building of a neighbour’s house across the street. The judgment is badly argued and clearly wrong in law as the law requires neighbours to ‘live and let live’. But it also has the unfortunate effect of indirectly endorsing religious prejudice against the Islamic faith.

If you live in a town or city, you are going to encounter noise. Lots of it. Traffic noise, dogs barking, drunken fighting, church bells, loud music, cheering sports fans, and – in some cases – the call to prayer. Your neighbours may also disturb your peace in other ways. Golf balls landing in your backyard (more about that later), the leaves from the neighbour’s tree clogging up your Kreepy Krauly, the pong of your neighbour’s home-brewed pineapple beer souring the air, cars parked on your front lawn; all things that get busybodies writing angry letters to the Atlantic Sun or the Sandton Chronicle or Merle from Fish Hoek calling in to John Maytham’s show on Cape Talk to complain.

Most of us would not dream of approaching the court for an interdict to stop these kinds of “nuisance”. (Admittedly, at the height of the lockdown I briefly considered getting an interdict against the body corporate WhatsApp group to stop the spread of fake news.) Most of us won’t do so, because there are far more important things to worry about, and because we understand that these small inconveniences – if they are inconveniences at all – are a small price to pay to get all the other benefits of living in a city as part of some kind of community.

There are also very few judges who will entertain the granting of such an interdict – unless the disturbance goes beyond what could be reasonably expected. Yet, last week Mngadi J, in Ellaurie v Madrasah Taleemuddeen Islamic Institute and Another, granted an interdict against a madrasah to ensure that its calls to prayer are not audible in the building of a neighbour’s house across the street. This is despite the fact that the calls to prayer are not amplified in any way, and that the “disturbance” (I am using the term loosely here) was clearly of a minor nature.

Mr Ellaurie lives across the road from the Madrasah Taleemuddeen Islamic Institute in Isipingo Beach. He holds extremely negative views of Islam, and claims the religion “lacks commitment to truth and the pursuit of truth”. From reading the court judgment I get the impression that Ellaurie is your average neighbour from hell. He has been complaining about the calls to prayer from the Madrassah since 2003. According to him:

“The Call to Prayer is a foreign sound, which invades his private space. It bears down over to him. It deprives him of the enjoyment of his property and interrupts his peace and quiet. It further disrupts his sleep, listening to music and meditation. … [T]he Call to Prayer gives the suburb a distinctly Muslim atmosphere. It attracts those of the Islamic faith and keeps non-Muslims away. The Muslim community in the area has increased by 30 percent in the past 15 years. The dominance of one group has resulted in arrogance and domination by the dominant group.”

The High Court granted the interdict in favour of Ellaurie, based on the alleged infringement of Ellaurie’s property rights. Mngadi J explained the court’s reasoning as follows:

“The applicant is entitled to enjoy the use of his residential property. It is part of his private space. Others are obliged to respect the applicant’s right to the use and enjoyment of his property… The Madrasah does not contend that it is essential, in order to practice its religion, that the Call to Prayer be made in such a way that it interferes with the applicant’s use and enjoyment of his private space, or that the current interference interferes least with the applicant’s private space.”

The court provided no analysis of the extent to which the law protects one’s undisturbed enjoyment of property. Neither did it seriously consider the freedom of religion of those worshipping at the madrasah.

While the High Court briefly mentioned the right to freedom of religion – which includes the right to entertain religious beliefs, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination – it completely failed to consider how this right may limit Ellaurie’s property rights. Instead, the freedom of religion concern is dismissed with the nonsensical statement that the call to prayer “is a manifestation of the Islam religion, it is not Islam itself”. (It is nonsensical because, as the court itself explained, freedom of religion includes the right to manifest religious beliefs.)

In layperson’s terms, the law does not reward the overzealousness or hypersensitivity of people who are easily disturbed by noise or other types of nuisance, the kind of noise or nuisance that is to be expected if one lives in a city or a town. Moreover, the law definitely should not reward such overzealousness and hypersensitivity if it appears to be animated by religious bigotry.

If the court had done more than pay lip service to the right to freedom of religion, it could not possibly have granted the interdict. But in this case, it was not even necessary to rely primarily on the right to freedom of religion. This is because in terms of the common law, the owner of a property does not have the kind of absolute right to undisturbed enjoyment of their property as assumed by the judge.

In terms of the common law of private nuisance, property owners are required to tolerate a degree of nuisance from their neighbours. (Bad news, I know, but there is little you can do to stop your neighbour from loudly repeating what he believes are Gareth Cliff’s latest bon mots.) This is common sense, but while reading the madrasah judgment, I also vaguely recall from my LLB studies that there is a case of Gien v Gien which explained this principle. So, as one is supposed to do when one engages with the law, I did a quick search on Saflii, which produced the 2007 Western Cape High Court judgment of Allaclas Investments (Pty) Ltd and Another v Milnerton Golf Club and Others.

The Allaclas case dealt with the owner of a property situated next to the Milnerton Golf Course, who approached the court for relief against the golf course because his property “has on several occasions been struck by golf balls hit by players playing the 6th hole”. I know what you are thinking. First, you are wondering how many of these petty cases end up in court and what percentage of these litigants write angry letters to the Milnerton TygerBurger or phone in to John Maytham. Third, you are torn about who should win this case, because in principle one should never be on the side of a golf course.

But such musings do not help us to understand why the KwaZulu-Natal High Court made a serious mistake in granting the interdict against the madrasah. Which means I now need to explain the legal principles (used by the court in the Allaclas Investments judgment) that sets out what kinds of nuisance one is legally required to tolerate.

The starting point for this enquiry is whether the neighbour whose conduct is being complained of exceeded their powers of ownership. In short, we ask what would be reasonable and fair in the circumstances. In this case, we would ask whether it is reasonable and fair for the madrasah to conduct – unamplified – calls to prayer as a manifestation of religious beliefs as guaranteed by section 15 of the Constitution.

The court in Allaclas Investments explained that the actions of a neighbour whose conduct is being complained of will become unreasonable when it ceases to be “expected in the circumstances” or when it becomes such that a neighbour need not tolerate it under the principle of “give and take” or “live and let live”. The powers of ownership extend only as far as there is a duty on his neighbour to endure the exercise of those powers. If a neighbour exceeds these powers he or she infringes the right of their neighbour. Only then would it constitute wrongful conduct that could be interdicted.

In layperson’s terms, the law does not reward the overzealousness or hypersensitivity of people who are easily disturbed by noise or other types of nuisance, the kind of noise or nuisance that is to be expected if one lives in a city or a town. Moreover, the law definitely should not reward such overzealousness and hypersensitivity if it appears to be animated by religious bigotry.

Based on these principles, the court held in the Allaclas Investments case that the complainants had to accept that they bought a house which borders on a fairway of a golf course, and that their right to free and undisturbed use of their property would be interfered with to some extent. The mere fact that a golf ball entered their property or was found there did not in itself constitute a nuisance. (For the same reason, you are not going to get the court to order the municipality to close the main road in front of your flat for through traffic because you are disturbed by the traffic.)

The same principle should have applied in the madrasah case. The calls to prayer are a normal part of the sights and sounds of any community where there is a mosque or other Islamic religious institution. It forms part of the rich diversity of that neighbourhood, and if you are intolerant of these sounds, your intolerance is not supported by the law. Any reasonable neighbour would expect to hear such calls to prayer in their neighbourhood, and will accept that this is part of the “give and take” that allows us to live together as a community.

Sadly, the High Court rewarded Ellaurie’s intransigence. But maybe it is time for the madrasah to start teaching the pupils how to play golf? DM.

DAILY MAVERICK
 

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