THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 873/2022

In the matter between:
UBUHLEBEZWE MUNICIPALITY

APPELLANT
and
HIRALALL RAMSUNDER

RESPONDENT

Neutral citation:
Ubuhlebezwe Municipality v Ramsunder (Case no 873/2022)
[2023] ZASCA 165 (1 December 2023)
Coram:
GORVEN,
MEYER
and
WEINER
JJA
and
CHETTY
and
UNTERHALTER AJJA
Heard:
10 November 2023
Delivered:
1 December 2023
Summary:
Interdict – Final – Whether clear right established.
Interpretation – National Building Regulations and Building Standards Act 103 of 1977
– s 4(1) read with the definitions of ‘erection’ and ‘erect’ in s 1.

ORDER

On appeal from: Kwa-Zulu Natal Division of the High Court, Pietermaritzburg
(Phoswa AJ, sitting as court of first instance):
The appeal is dismissed with costs.

JUDGMENT

Meyer JA (Gorven and Weiner JJA and Chetty and Unterhalter AJJA
concurring):
[1] The appellant, Ubuhlebezwe Municipality (the municipality), initiated motion
proceedings in the Kwa-Zulu Natal Division of the High Court, Pietermaritzburg (the
high court) against the respondent, Mr Harilall Ramsunder (Mr Ramsunder), for an
order interdicting him ‘from carrying out any building operations and/or renovations
and/or improvements and/or restoration to the immovable property’ described as Erf
1, Stuarts town, situated at the corner of Main Road and Railway Street, Ixopo, Kwa-
Zulu Natal (the property). On 2 February 2022, the high court (per Phoswa AJ)
dismissed the application for a final interdict, with costs, including those of two counsel.
The appeal is with leave of the high court.

[2] First, the background facts.1 Mr Ramsunder had, at the time the proceedings
were initiated, been in occupation of the property for approximately twenty-five years,
since 1996. The property was initially owned by Transnet Ltd (Transnet). Mr

1 Insofar as there are material disputes of fact on the papers, I must accept the facts alleged by Mr
Ramsunder ‘unless they constituted bold or uncreditworthy denials or were palpably implausible, far-
fetched or so clearly untenable that they could safely be rejected on the papers. . . A finding to that
effect occurs infrequently because courts are always alive to the potential for evidence and cross-
examination to alter its view of the facts and the plausibility of the evidence’. Media 24 Books (Pty) Ltd
v Oxford University Press Southern Africa (Pty) Ltd [2016] ZASCA 119; [2016] 4 All SA 311 (SCA);
2017 (2) SA 1 (SCA) at 18A-B. That stringent test has not been satisfied in casu.

Ramsunder’s occupation of the property during 1996 arose from a lease agreement
concluded between him and Transnet. The lease was to endure for an initial period of
three years up to 1999, and thereafter upon renewal, for a further period of three years
from 1999 to 2002.

[3] With Transnet’s approval, Mr Ramsunder effected improvements to the
property to house a supermarket, liquor store and a fruit and vegetable business. He
caused the old buildings on the property to be demolished and new buildings were
erected to house his businesses. The municipality approved the plans and
specifications.

[4] Although Mr Ramsunder had been involved in negotiations to acquire
ownership of the property, Transnet, unbeknown to him, sold the property to the
predecessor of the appellant, the Ixopo Transitional Local Council. Ownership passed
to the municipality on 25 May 2000. A new lease agreement was concluded between
the municipality and Mr Ramsunder, in terms of which he continued to occupy the
property.

[5] Negotiations ensued between Mr Ramsunder and the municipality with the aim
that he acquire ownership of the property. Pursuant to an agreement in principle that
he would purchase the property from the municipality for an amount of R450 000, the
municipality granted him written authority to further improve the property. After the
architectural plans, required by law, had been drawn and approved by the municipality,
Mr Ramsunder caused a new supermarket, a warehouse, shops under the
supermarket and steel structures over an existing store, a yard and taxi area to be
constructed, comprising a total area of approximately 3 530m².

[6] Finally, on 12 February 2004, a written sale agreement was concluded
between the municipality and Mr Ramsunder for a total purchase consideration of
R450 000. Prior to the passing of ownership to Mr Ramsunder, at a full council meeting
of the municipality held on 4 February 2005, it was resolved:
‘1)
That the sale of Spoornet Property, Portion A of Erf 1 and B of Erf 2 situated in
Stuartson, Ixopo to Mr. H. Ramsunder was improper and illegal since it was in contrast
with the objects of acquiring the property.

2)
That the sale should be stopped and cancelled immediately.
3)
That the Municipal Manager does the necessary to cancel the sale and advise Mr. H.
Ramsunder of the council decision.’
Mr Ramsunder disputed the validity of the municipality’s unilateral attempt to cancel
the sale.

[7] The relationship between Mr Ramsunder and the municipality has become
acrimonious since then. Matters could not be resolved, and on 20 September 2005,
he commenced action proceedings in the high court, in which he claimed:
‘An order compelling the Defendant to take all steps necessary to transfer the properties
referred to in Clause 1 of the Memorandum of Sale, dated 12 February 2004, between the
Plaintiff and the Defendant, to the Plaintiff and to sign all documents and to take all steps
necessary to give effect to this order within 30 days from the date of this order, failing which
the Sheriff be and is hereby authorised and directed, to take all such steps and to sign all such
documents on behalf of the Defendant to give effect to this order.’

[8] The municipality filed a plea in which it alleged that the sale is ‘voidable and
unenforceable’ on grounds that are not presently relevant. It also instituted a
conditional counter-claim in which it, inter alia, claimed Mr Ramsunder’s ejectment
from the property. It denied the existence of a lease between itself and Mr Ramsunder,
as alleged by him. Mr Ramsunder’s particulars of claim were then amended, to claim
a lien based on the improvements which he had effected to the property. For reasons
that are not presently relevant, Mr Ramsunder – according to him, erroneously –
agreed to an order that the sale be declared invalid and of no force and effect. His
enrichment claim and the municipality’s claim for his eviction were postponed sine die,
and are presently pending.

[9] During July 2021, widespread civil unrest started in Kwa-Zulu Natal and spread
to Gauteng. It was accompanied by egregious loss of life, public violence, burglary
and malicious damage to property. Mr Ramsunder was one of the unfortunate victims
of the widespread unrest. The buildings on the property from which he was conducting
his businesses were damaged and he could no longer conduct any business from
these premises. It was imperative for him to undertake remedial construction to restore
the buildings and recommence operating the businesses he had conducted. He had

suffered great financial loss. His businesses employed approximately 90 persons and
they have been left unemployed.

[10] This gave the municipality another arrow in its bow to resist Mr Ramsunder’s
enrichment claim. It maintained that the buildings on the property had been destroyed
and burnt to the ground. Mr Ramsunder, on the other hand, presented evidence that
although the property could not be occupied, some of the buildings were not damaged
or the damage was minimal, and others were partially damaged.

[11] In order to curtail further losses, Mr Ramsunder engaged the services of a
construction company, RockSteel, to undertake the required remedial construction to
restore the buildings on the property to their original state, in accordance with the
previously approved plans and specifications. Mr Ramsunder’s evidence was as
follows: that the municipality was aware of the damage to the property from at least 13
July 2021, when its officials conducted inspections of the extensive damage to the
town; the municipality was aware since 3 September 2021 that remedial construction
works were being undertaken at the property; no municipal inspectors attended the
property and inspected the building construction from time to time; the remedial
construction works were effected strictly in accordance with the approved plans and
specifications; and that structural works were undertaken under the supervision of
engineers employed by RockSteel. This evidence stands uncontroverted. No evidence
was presented, inter alia, to the effect that there were any specifications originally
approved for the construction of the buildings on the property that are outdated or no
longer conform to best engineering and construction practice or principles.

[12] Surprisingly, the municipality commenced the application proceedings, being
the subject of this appeal, by way of urgency in the high court. Its application was
issued by the registrar of the high court on 28 September 2021, and the matter was
set down for hearing on 1 October 2021, affording Mr Ramsunder insufficient
opportunity to oppose the application for interim relief. He thus only opposed the grant
of final relief. One would have expected ‘a good constitutional citizen’2 rather to have

2 To borrow the phrase used by Cameron J in Merafong City Local Municipality v AngloGold Ashanti
Limited [2016] ZACC 35; 2017 (2) BCLR 182 (CC); 2017 (2) SA 211 (CC) para 60.

sent its municipal inspectors to attend the property and inspect the building
construction from time to time. If there were compelling reasons to require
amendments to the originally approved plans and specifications, to tell Mr Ramsunder
so and offer to re-approve the originally approved plans and specifications.

[13] Why then did the municipality instead rush to court to obtain an interdict? Mr
Ramsunder’s answer to this question:
‘More disconcerting is the fact that the Applicant has tried to create the impression that I am a
recalcitrant occupant who has no regard for the law. This is simply not true. To the contrary, it
is the Applicant who is being opportunistic in attempting to constructively evict me due to the
unforeseen unlawful riots that occurred. It does so in circumstances where it previously took
no action to resolve the dispute between us, presumably because it was aware that it is liable
to compensate me for the building I constructed before it is entitled to an order that I relinquish
my possession of the leased premises.
. . .
The irresistible impression is that the Applicant intends on obtaining an indefinite interdict to
obstruct my right to remain on and use the property solely to bolster its position in the pending
litigation in which the parties’ rights will be determined.’

[14] There are three requisites for the grant of a final interdict, all of which must be
present. They are: (a) a clear right enjoyed by the applicant; (b) an injury actually
committed or reasonably apprehended; and (c) the absence of any other satisfactory
remedy available to the applicant. These principles are trite and require no citation of
authority.

[15] The clear right upon which the municipality sought to rely, emanates from s 4(1)
read with the definitions of the words ‘erection’ and ‘erect’ in s 1 of the National Building
Regulations and Building Standards Act 103 of 1977 (the Act). Section 4(1) stipulates:
‘No person shall without the prior approval in writing of the local authority in question, erect
any building in respect of which plans and specifications are to be drawn and submitted in
terms of this Act.’
The words ‘erection’ and ‘erect’ are defined, thus:
‘“erection” in relation to a building, includes the alteration, conversion, extension, rebuilding,
re-erection, subdivision of or addition to, or repair of any part of the structural system of, any
building; and “erect” shall have a corresponding meaning.’

[16] The municipality contended that Mr Ramsunder was required to have new plans
and specifications drawn and approved by the municipality, prior to the
commencement of the remedial construction works on the property. Mr Ramsunder,
on the other hand, contended that the 2004 approved plans and specifications met the
requirement of s 4(1). The remedial construction works were effected strictly in
accordance with those approved plans and specifications. The high court agreed with
Mr Ramsunder and concluded that the municipality has not established a clear right
that required protection by way of a final interdict.

[17] An interpretative analysis of s 4(1), read with the pertinent definitions in s 1 of
the Act, must follow the now well-established triad of text, context and purpose.3 ‘It is
an objective unitary process where consideration must be given to the language used
in the light of the ordinary rules of grammar and syntax; the context in which the
provision appears; the apparent purpose to which it is directed and the material known
to those responsible for its production. The approach is as applicable to taxing statutes
as to any other statute. The inevitable point of departure is the language used in the
provision under consideration.’4 ‘Most words can bear several different meanings or
shades of meaning and to try to ascertain their meaning in the abstract, divorced from
the broad context of their use, is an unhelpful exercise’.5 ‘One should not stare blindly
at the black-on-white words, but try to establish the meaning and implication of what
is being said. It is precisely in this process that the context and surrounding
circumstances are relevant.’6 ‘Where more than one meaning is possible each
possibility must be weighed in the light of all these factors. The process is objective,

3 Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others
[2021] ZASCA 99; [2021] 3 All SA 647 (SCA); 2022 (1) SA 100 (SCA).
4 Commissioner for the South African Revenue Service v United Manganese of Kalahari (Pty)
Ltd ZASCA 16; 2020 (4) SA 428 (SCA), para 8.
5 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012] ZASCA 13; [2012] 2 All SA
262 (SCA); 2012 (4) SA 593 (SCA) para 25 (Endumeni).
6  In Elan Boulevard (Pty) Ltd v Fnyn Investments (Pty) Ltd and Others [2018] ZASCA 165; 2019 (3) SA
441 (SCA) para 16 footnote 6, Ponnan JA provided the above-quoted loose translation of the dictum -
‘. . . dat mens jou nie moet blind staar teen die swart-op-wit woorde nie, maar probeer vasstel wat die
bedoeling en implikasies is van dit wat gesê is. Dit is juis in hierdie proses waartydens die samehang
en omringende omstandighede relevant is . . .’ - by Olivier JA in Plaaslike Oorgangsraad van
Bronkhortspruit v Senekal 2001 (3) SA 9 (SCA) para 11.

not subjective. A sensible meaning is to be preferred to one that leads to insensible or
unbusinesslike results or undermines the purpose of the document’.7

[18] The manifest purpose of s 4(1) becomes clear when the provision is placed in
proper perspective, and the context in which it was made is considered. The purpose
of the Act is ‘[t]o provide for the promotion of uniformity in the law relating to the areas
of jurisdiction of local authorities; for the prescribing of building standards; and for
matters connected therewith’. The Act provides, inter alia, for applications to local
authorities in respect of erections of buildings;8 appointment of building control officers
by local authorities,9 who, in turn, inter alia, shall (a) make recommendations to a local
authority, regarding any plans, specifications, documents and information submitted
to the local authority in an application in respect of the erection of a building, (b) ensure
that any instruction given in terms of the Act by a local authority be carried out, (c)
inspect the erection of a building, and any activities or matters connected therewith, in
respect of which approval was granted by a local authority, and (d) report to the local
authority regarding non-compliance with any condition on which approval was
granted.10

[19] The Act continues to provide for the approval by local authorities of applications
in respect of the erection of buildings once the local authority has considered the
recommendations of the building control officer and is satisfied that the application
complies with the requirements of the Act and any other applicable law;11 refusal by
local authorities to grant approval of applications in respect of the erection of buildings
if it is not satisfied that the application complies with the requirements of the Act and
any other applicable law,12 or if it is satisfied that the building to which the application
in question relates is to be erected in such manner or will be of such nature of
appearance that (a) the area in which it is to be erected will probably or in fact be
disfigured thereby, (b) it will probably or in fact be unsightly or objectionable, (c) it will

7 Endumeni para 18.
8 Section 4.
9 Section 5.
10 Section 6(1).
11 Section 7(1).
12 Section 7(1)(b)(i).

probably or in fact derogate from the value of adjoining or neighbouring properties, or
(d) it will probably or in fact be dangerous to life or property.13

[20] Building control officers or any other person authorized thereto by the local
authority are obliged and empowered to enter any building or land at any reasonable
time to inspect the approved construction works to determine whether there is
compliance with the statutory prescripts and conditions of approval.14 A person
appointed to design and to inspect the erection or installation of the structural, fire
protection, or fire installation system of a building is, upon completion of the erection
and installation of such system, obliged to submit a certificate to the local authority,
indicating that the system has been designed and erected or installed in accordance
with the approved application to erect the building.15 Unless the local authority issues
a temporary certificate of occupancy, a newly constructed building may not be
occupied unless the local authority issues a certificate of occupancy. It will issue such
certificate if it is of the opinion that the building has been erected in accordance with
the provisions of the Act and the conditions on which approval was granted.16 The Act
vests local authorities with various other powers – such as the imposition of various
conditions and prohibiting the erection or ordering the demolition of buildings in certain
circumstances17 – which require no further elaboration here.

[21] Section 4(1) thus forms part of a suite of legislative stipulations providing for
municipal approval, oversight, and sign off on buildings that are safe, sound and
aesthetically acceptable. Indeed, the legislature has cast the net for municipal
authorisation wide in defining ‘erect’ in relation to a building, as it has done in defining
a ‘building’. The evident intention with that is to ensure that the erection of all buildings
(within the wide meaning ascribed to that noun) has been done in accordance with
approved plans and specifications, even if, for example, the intended construction
constitutes a mere re-erection of a pre-existing building that had originally been
erected without the legally required municipal authorisation. Conversely, it could never
have been the intention, as the municipality would have it, that new plans and

13 Section 7(1)(b).
14 Sections 6(1)(c) and 15.
15 Section 14 (2A).
16 Section 14(1)(a).
17 See, for example, sections 10-12.

specifications need to be submitted to and approved by a local authority prior to the
commencement of remedial construction works being undertaken, in circumstances
where the municipality had previously approved the identical plans and specifications,
in accordance with which the remedial construction works are to be carried out, and in
the absence of any suggestion that the local authority would have imposed amended
or additional conditions.

[22] Indeed, the facts herein demonstrate the absurdity that would result from a
contrary interpretation of s 4(1). It would amount to a mere brutum fulmen – an
exercise in futility – to require the same application in respect of the same building to
be submitted to the local authority each time an event, such as the 2021 riots, results
in damage to the building, merely for an identical authorisation then to be issued to
undertake the remedial construction works in accordance with the originally approved
plans and specifications. Would the approach of the municipality apply to less serious
damage, such as borer damage to a roof structure? Such insensible and
unbusinesslike results are not to be preferred.

[23] The municipality has thus failed to show that the clear right requisite for the
grant of a final interdict is present. In addition, its application appears to have an
ulterior motive.

[24] In the result:
The appeal is dismissed with costs.

________________________
P MEYER
JUDGE OF APPEAL

Appearances

For appellant:
M Pillemer SC with M Mbonane
Instructed by:
Tembe
Kweswa
Nxumalo
Inc.,
Durban

Maduba Attorneys Inc., Bloemfontein

For respondent:
No appearance
Instructed by:
Udesh
Ramesar
Attorneys,
Pietermaritzburg

Symington
De
Kok
Attorneys,
Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

1 December 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Ubuhlebezwe Municipality v Ramsunder (873/2022) [2023] ZASCA 165 (1 December 2023)
Today, the Supreme Court of Appeal (SCA) dismissed an appeal from the Kwa-Zulu Natal Division of
the High Court, Pietermaritzburg. The appellant, Ubuhlebezwe Municipality (the municipality), initiated
motion proceedings against the respondent, Mr Harilall Ramsunder (Mr Ramsunder), for an order
interdicting him ‘from carrying out any building operations and/or renovations and/or improvements
and/or restoration to the immovable property’ situated in the town of Ixopo, Kwa-Zulu Natal (the
property). The clear right upon which the municipality sought to rely in order to obtain a final interdict,
emanates from s 4(1) read with the definitions of the words ‘erection’ and ‘erect’ in s 1 of the National
Building Regulations and Building Standards Act 103 of 1977 (the Act). The section stipulates that ‘[n]o
person shall without the prior approval in writing of the local authority in question, erect any building in
respect of which plans and specifications are to be drawn and submitted in terms of this Act.’ The words
‘erection’ and ‘erect’ are defined, thus:
‘“erection” in relation to a building, includes the alteration, conversion, extension, rebuilding, re-erection,
subdivision of or addition to, or repair of any part of the structural system of, any building; and “erect”
shall have a corresponding meaning.’
The buildings on the property were erected during 2004 in accordance with duly approved municipal
plans and specifications. During July 2021, widespread civil unrest started in Kwa-Zulu Natal and
spread to Gauteng. It was accompanied by egregious loss of life, public violence, burglary and malicious
damage to property. Mr Ramsunder was one of the unfortunate victims of the widespread unrest. The
buildings on the property from which he was conducting his business were damaged and he could no
longer conduct any business from these premises. Mr Ramsunder engaged the services of a
construction company, RockSteel, to undertake the required remedial construction to restore the
buildings on the property to their original state, in accordance with the previously approved plans and
specifications.
The municipality contended that Mr Ramsunder was required to have new plans and specifications
drawn and approved by the municipality, prior to the commencement of the remedial construction works
on the property. Mr Ramsunder, on the other hand, contended that the 2004 approved plans and
specifications met the requirement of s 4(1) of the Act. The high court agreed with Mr Ramsunder and
concluded that the municipality has not established a clear right that required protection by way of a
final interdict.
The SCA agreed with the conclusion reached by and the order of the high court. In dismissing the
appeal, the SCA held that s 4(1) forms part of a suite of legislative stipulations providing for municipal
approval, oversight, and sign off on buildings that are safe, sound and aesthetically acceptable. Indeed,
so the SCA held, the legislature has cast the net for municipal authorisation wide in defining ‘erect’ in
relation to a building, as it has done in defining a ‘building’. The evident intention with that is to ensure
that the erection of all buildings (within the wide meaning ascribed to that noun) has been done in
accordance with approved plans and specifications, even if, for example, the intended construction
constitutes a mere re-erection of a pre-existing building that had originally been erected without the

legally required municipal authorisation. Conversely, it could never have been the intention, as the
municipality would have it, that new plans and specifications need to be submitted to and approved by
a local authority prior to the commencement of remedial construction works being undertaken in
circumstances where the municipality had previously approved the identical plans and specifications,
in accordance with which the remedial works are to be carried out, and in the absence of any suggestion
that the local authority would have imposed amended or additional conditions.

~~~~the end~~~~