Background:

On Thursday 12 May 2022 the Mughammadiyyah Masjid in Tennyson Street Salt River received a notification from the City to turn down the volume of the Call to Prayer, as a result of a complaint received in terms of the Western Cape Noise Control Regulations. 

This was after the Mayor announced on 27 April 2022 in a media statement that the "Noise and Nuisance" section of the Streets, Public Spaces and Prevention of Noise and Nuisances By-law is no longer applicable to designated places of worship in terms of the recently promulgated Standard Operating Procedure (SOP) applicable to places of worship.

According to many opposition councillors, the Mayor reneged on his promise to amend the By-law and proceeded by leaving the By-law intact and only updated its SOP relating to the By-law and thus the By-law is still very much in place.

According to the Mayor, the SOP does exempt places of worship from the bylaw and therefore there is no reason to go the more rigorous, public participatory, democratic route of amending the Bylaw. The Mayor is also adamant that the SOP is NOT an interim measure, but that it is a permanent feature. The Mayor agrees that the complaint to the Masjid is not justified and was erroneously processed by a city official who lacked the necessary understanding and training required to implement the recently promulgated SOP. 

Contention:

The Mughammadiyyah  Masjid committee differs with the Mayor in terms of his approach regarding the SOP as opposed to an amended By-law and have recommended that he reconsider his position and initiate the process of amending the By-law itself.

Discussion:

Although the Mughammadiyyah Masjid committee understands and appreciates why the Mayor felt it necessary to adopt a quick-fix, expedient approach on a burning issue such as the exemption of places of worship from the Noise and Nuisance By-law, we cannot understand why the Mayor insists on maintaining it as a permanent feature and not initiate a more rigorous, public participatory, democratic process of amending the By-law itself in parallel.

The Mughammadiyyah Masjid committee is of the view that the SOP does not go far enough and does not offer sufficient protection to places of worship from spurious complaints in terms of the relevant By-law, such as the one served on it on us on Thursday 12 May 2022.

Although the SOP does state that places of worship are exempt from the By-law and should be dealt with in terms of clause 5.2 of the SOP, which outlines a range of procedures in terms of how to deal with complaints of this nature, clause 5.2.3 of the SOP states: 

“Notwithstanding the above, nothing prevents the City from taking action against the perpetrators of noise which qualifies as both a Noise Nuisance and a Noise Disturbance, in terms of the relevant CoCT By-Law and the Western Cape Noise Control Regulations, where deemed necessary or appropriate”. 

In other words, the CoCT can at any time invoke both the Western Cape Noise Control regulations and/or the relevant By-Law if they feel its necessary or appropriate to do so. So, in essence, places of worship have not been completely exempted from the By-law!

Finally, the SOP is not legislation, its merely an instruction by the Mayor to officials in terms of how they need to interpret, apply and execute provisions contained in the By-law. Because it’s a SOP and not an amendment to the By-law itself, the Mayor was able to promulgate the SOP unilaterally without following a rigorous public participation process. The problem with this approach is that any subsequent Mayor can do the same in reversing the SOP making the longevity of the SOP highly flawed and questionable. Furthermore, it is our contention that should the By-law and the SOP be contested in court, the By-law will trump the SOP because it’s the de facto law.

The Mayor further argues that if he follows the process of amending the By-law and conducts a full-blown, rigorous public participatory process, it will be a divisive process and might result in a very different outcome than exempting places of worship from the said By-law. The Mughammadiyyah Masjid Committee differs with the Mayor on this, as we truly believe that a rigorous, public participatory, democratic process is required and that the end result will fall on the side of justice and truth, in that the large majority of our citizenry are tolerant and freedom loving people supporting the philosophy and principles of our Rainbow Nation. Therefore, in our view it will be a unifying process and not a divisive one, as suggested by the Mayor.

Conclusion:

We were obviously shocked and disappointed by the complaint forwarded by the CoCT as we were under the impression that places of worship have been exempted as articulated by the Mayor previously. However, to our dismay in our investigation subsequent to the notice, it was obvious that the By-law is still very much alive. Instead, the CoCT promulgated a SOP which outlines how to 'sensitively' deal with such complaints and thus legally not much has changed. The responsible department has since apologised for the “error” and retracted the complaint sighting lack of training on the implementation of the SOP.

The Mughammadiyyah Masjid Committee is of the view that it is not a matter of lack of training, but rather an issue of law and has therefore strongly encouraged the Mayor to reconsider initiating the process of amending the By-law by conducting a full-blown public participating process.

Our Masjid has been in existence for 106 years and the Adhan has been sounded 5 times a day continuously for more than a century and this is the first formal complaint of its kind. The Adhan is part and parcel of the intangible heritage fabric of our suburb and indeed the city and therefore we regard this complaint as spurious and malicious and the Mayor agrees with us on that. We call on the CoCT to reveal the identity of the complainant so that we can engage and educate the complainant about the meaning and importance of the Adhan to a large proportion of the residents of our city.

We take this complaint very seriously and don't regard it as an issue related only to the our Masjid. In fact, the By-law affects all places of worship mosques, churches, synagogues, and temples and we are dealing with it as such.

Recommendation: 

Our position is therefore clear, the By-law itself needs to be amended to explicitly exempt places of worship from such complaints.

Petition:

• We call on all progressive organisations to join us in demanding that the Mayor start the legal process of initiating the amendment of the By-law to exempt places of worship from this regulation.
• We furthermore call on all freedom loving citizens of all faiths to sign a petition to demand that the Mayor start the legal process of initiating the amendment of the By-law to exempt places of worship from this regulation. 
• We aim to gather 100 000 signatures digitally and physically to demonstrate to the Mayor that our demand has the support of a large proportion of the residents of our city. 
• We have commenced the petition today 20 May 2022 and will at various milestones present the Mayor an update on our petition.

Please sign the petition to demand that the Mayor initiate the process of amending the Noise and Nuisance By-law 2007 relating to places of worship.