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[2019] ZAWCHC 5
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Mbele v Road Accident Fund (A237/18) [2019] ZAWCHC 5; 2019 (4) SA 65 (WCC) (1 February 2019)

IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: A 237/18
In
the matter between:
THANDISWA
LINAH MBELE
(on
behalf of
minors)
Appellant
and
THE
ROAD ACCIDENT
FUND
Respondent
Coram:
A. le Grange, P. A. L. Gamble JJ and F. S. G. Sievers AJ.
Date
of Hearing: 30 January 2019
Date
of Judgment: 1 February 2019
JUDGMENT
DELIVERED ON 1 FEBRUARY 2019
GAMBLE,
J:
INTRODUCTION
[1]
In February 2010 Mr. Simphiwe Robert
Makutoana (hereinafter referred to as “the deceased”) was
employed as a stevedore
in the Cape Town harbour. On 20 February 2010
the deceased was knocked over by a large industrial vehicle known as
a “Reach
Stacker” while going about his work. He
succumbed to his injuries the following day and his widow (the
appellant) subsequently
sued the respondent (“the RAF”)
for damages for the loss of support sustained by herself personally
and her three children.
[2]
The appellant’s claim was based on
the provisions of s17(1) of the Road Accident Fund Act, 56 of 1996
(“the Act”),
it being alleged that the deceased had died
as a consequence of the negligence of one of Eugene Andrea who, it
was alleged, had
operated the Reach Stacker in a negligent manner at
or near the “
Multipurpose
Terminal
” in the harbour. A full
description of the Reach Stacker will be given later in this
judgment. Suffice it to say for present
purposes that its Swedish
manufacturer, Konecranes Lifttrucks AB, refers to it in papers before
the Court
a quo
as a “
lift truck”.
As the nomenclature suggests the vehicle is a heavy duty machine that
is used to lift ocean containers and place them onboard vessels

moored alongside the wharf in the harbour.
[3]
The RAF disputed liability and alleged,
inter alia, that the Reach Stacker was not a motor vehicle as defined
under the Act, thereby
asserting that the incident in which the
deceased died did not fall within the parameters of the Act. The
matter came before Desai
J and the parties agreed that, in terms of
Rule 33(4), the court would first determine whether the Reach Stacker
was a vehicle
as defined under the Act. All other issues were held in
abeyance pending such determination.
[4]
In the result, Desai J found that the Reach
Stacker was not a motor vehicle as defined under s1 of the Act and
ordered the appellant
to pay the RAF’s costs in the proceedings
before him. The appellant is before the Full Bench with the leave of
the Court
a quo
.
WHAT
QUALIFIES AS A “
MOTOR VEHICLE”
UNDER THE ACT?
[5]
S1 of the Act is the definitions clause and
in terms thereof a “
motor vehicle
”
is defined as
“
any
vehicle designed or adapted for propulsion or haulage on a road by
means of fuel, gas or electricity, including a trailer, a
caravan, an
agricultural or any other implement designed or adapted to be drawn
by such motor vehicle.”
[6]
It is common cause that a Reach Stacker is
self-propelled: it has a diesel engine which enables it to be driven
around on its six
huge wheels. It is not pulled (or hauled) by any
other vehicle and accordingly, the issue for determination was
whether it is a
“
vehicle designed
or adapted for propulsion… on a road.”
[7]
It is
significant to note that, while the Legislature could readily have
done so, “
road
”
is not defined under the Act and so it must bear its ordinary
meaning, viz “
a
line of communication, especially a specially prepared track between
places for use by pedestrians, riders and vehicles.”
[1]
Importantly, the Legislature has not sought to restrict the meaning
of “
road
”
to a “
public
road
”
and in
Mbendera
[2]
the Supreme Court of Appeal held conclusively that the Act applies
throughout the Republic of South Africa and not just on
public roads.
The focus of the definition of “
motor
vehicle
”,
for present purposes, must therefore be on the words “
vehicle
designed…for propulsion… on a road”
with particular emphasis on the word “
designed
”
.
[8]
There
is a line of cases at appellate level which has dealt with the
definition of “
motor
vehicle
”
under the Act, all with particular reference to the size and nature
of the vehicle.
[3]
As the case law has developed, the focus has shifted from the nature
of the vehicle in question and its utility to the areas of
operation
and whether these are to be construed as public roads, roads
generally or otherwise. One must therefore be cautious in

adjudicating this matter to not slavishly follow earlier decisions
and to attempt to use them as a blueprint to determine the issue.
As
is so often the case, each matter must be determined on its own
facts.
[9]
In
Chauke
,
(a case involving a collision between a worker and a forklift vehicle
in the enclosed yard of a transport company) Olivier JA conducted
a
thorough review of the relevant statutory provisions and the
applicable case law since 1942, the year in which compulsory third

party insurance was introduced into South Africa through legislation.
The learned Judge of Appeal noted that, while there was initially

some statutory disharmony in relation to the definition of “
motor
vehicle
”, this was clarified
under the Compulsory Motor Vehicle Insurance Act, 56 of 1972 in which
(in s1(i)) the definition was
formulated in the same terms as one
finds today in the Act – “
any
vehicle designed or adapted for propulsion or haulage on a road by
means of any power…”
[10]
After consideration of the relevant case
law, both locally and abroad, Olivier JA concluded that “
just
because a vehicle can be used on a road by no means implies that it
was ‘designed for propulsion on a road’.
The
learned Judge of Appeal went on to determine the point of departure
as follows.
“
The
correct approach to the interpretation of the legislative phrase
quoted above is to take it as a whole and to apply to it an

objective, common sense meaning. The word ‘designed’ in
the present context conveys the notion of the ordinary, everyday
and
general purpose for which the vehicle in question was conceived and
constructed and how the reasonable person would see its
ordinary, and
not some fanciful, use on a road. If the ordinary, reasonable person
would perceive that the driving of the vehicle
in question on a road
used by pedestrians and other vehicles would be extraordinarily
difficult and hazardous unless special precautions
or adaptation were
effected, the vehicle would not be regarded as a ‘motor
vehicle’ for the purposes of the Act. If
so adapted such
vehicle would fall within the ambit of the definition not by virtue
of being
intended
for use on a road but because it had been
adapted
for
such use.”’
[4]
[11]
In
Chauke
the evidence established that the
forklift in question operated in a restricted area and under limited
conditions.
“
The
forklift was not used on a road. It was used in an out of the
warehouse and in the yard. Outside the warehouse it was not required

to move along demarcated lines or lanes. The evidence was also that
when the need arose to transport the forklift from one locality
to
another, this was done with a trailer… It could not be
registered in terms of the statutory licensing rules unless modified.

The forklift drivers are not allowed to drive out of the premises. If
a forklift is driven on a public road, according to the witness,
‘….
you could knock somebody over’.”
Olivier
JA confirmed the finding of the trial court in that matter that the
forklift in question was not a motor vehicle as defined
under the
applicable act.
[5]
[12]
In
Van den
Berg
(a
claim under the Act for damages arising out collision involving a
piece of heavy duty road building equipment called a “
pneumatic
tyre roller” (
or PTR) which, like
a steam-roller, is used to compact the road surface in the
construction phase of road-building), Streicher JA
stated how he
understood the
dictum
in
Chauke
.
In so doing he expressly disagreed with the interpretation placed
thereon by Marais JA in
Vogel.
“
[7]
…
Olivier
JA made it clear that he was of the view that ‘an objective,
common sense meaning’ should be applied to the
phrase ‘designed
for’. When he immediately thereafter said that the word
‘designed’ in the present context
conveys the notion of
the ordinary, everyday and general purpose for which the vehicle in
question was conceived and constructed,
he was, in my view, referring
to the general purpose for which the vehicle, objectively determined,
was conceived and constructed.
[8] It is common
cause that the PTR is used to compact road surfaces. It does not,
however, follow that it was not designed to be
used for other
purposes as well.
If one of those
other purposes it was designed for is to travel on a road it falls
within the definition and qualifies as a motor
vehicle as defined.
”
(Emphasis added)
[13]
In each case then the court will be
required to objectively consider what the primary purpose of the
design of the vehicle (or piece
of equipment) in question is. If it
is concluded that in giving effect to such purpose the equipment may
also be required to travel
on a road, then it will follow that it is
a “
motor vehicle”
as
defined in the Act. This is adequately demonstrated, in relation to a
PTR, by the following conclusion arrived at by the learned
Judge of
Appeal in
Van den Berg
.
“
[10]
Counsel for the appellant submitted that, being an objective test,
one cannot have regard to the fact that the PTR is generally
used on
a road. However, the purposes for which the PTR is generally used are
objectively determinable and is a fact that cannot
be ignored when
attempting to determine objectively the use for which it had been
designed.
[11] It is the
design of the PTR that makes it possible for the vehicle to be used
as aforesaid. It is fitted with all the paraphernalia
required to be
fitted to a motor car so as to enable it to be used with safety on a
public road, such as headlamps, direction indicators,
brake lights
and rear-view mirrors. These features may of course also be required
for its primary purpose of compacting, but that
is, in my view, an
irrelevant consideration. The third gear, which enables the PTR to
travel at a maximum speed of 20 kilometres
per hour and the facility
to reduce the tyre pressure from 7 bar required for compacting to 2
bar are not required for compacting
purposes but when travelling on
roads to and from the site where compacting is required.”
[14]
In
Bell
the plaintiff (a baggage controller at Cape
Town International Airport) was injured when knocked over by a
“
flatbed transporter
” operating on the airport
apron, by definition an area with restricted access to the public.
The flatbed transporter was
described by Theron AJA as follows.
“
[6]
According to the manufacturer’s brochure admitted in evidence,
it is a self-propelled vehicle designed for the transportation
of
baggage and cargo. It is used at airports to transport baggage and
cargo from its place of origin within the confines of the
terminal to
next to an aircraft on the airside of the airport (the tarmac and
runway area where the planes arrive and take off).
The flatbed
transporter operates only within the confines of the airport.”
[15]
The learned Acting Judge of Appeal went on to describe the area
within which the flatbed transporter operated as follows.
“
[7] The
airside of the airport has a road system which functions similarly to
that of public roads, except that the general public
does not have
access to these roads. The roads are two-way with a demarcated middle
line. There are standard traffic-control signs
such as stop, yield
and speed signs. No vehicle may drive anywhere else on the outside,
except on the demarcated roads. The roads
on the airside are utilised
by standard licensed vehicles, including bakkies, trucks, tractors,
various types of transporters,
and passenger buses, as well as by
pedestrians (personnel and passengers) who cross at designated
pedestrian crossings.”
[16]
Applying the judgments in
Chauke
and
Van den Berg
in relation to the objective test for determination of the
manufacturer’s design intentions, Theron AJA noted that it was
common cause that the flatbed transporter was designed “
for
propulsion on an airport road”.
The question that arose, in
those circumstances, was whether the definition of “
motor
vehicle
” required that the vehicle in question be designed
for propulsion on a public road. With reference to
Mbendera
,
the learned Acting Judge of Appeal found that this was an
impermissible limitation: the flatbed transporter was designed for
propulsion on a road and it mattered not that the road was in a
restricted area and not accessible to the public. She accordingly

concluded that the flatbed transporter was a motor vehicle as defined
under the Act.
DESIGN
FEATURES OF THE REACH STACKER
[17]
As the photograph attached hereto as Annexure “A”
demonstrates the Reach Stacker is a unique vehicle which combines

components of a forklift and a mobile crane. As stated, the
manufacturer prefers to call it a “
Lift Truck”.
The
evidence establishes that it is 12,5m in length, 4,2m wide and 4,3m
high. It weighs almost 72 tons and has six wheels: a pair
of double
wheels mounted on either side of the front axle and a pair of single
wheels mounted on the back axle. Each tyre, which
is pumped to a
pressure of 100 bars, was said to weigh 7 tons. The front axle is
static while the rear axle is movable and is used
to turn the vehicle
left or right with power-assisted steering.
[18]
A large telescopic arm to which a crab-like lifting device is
attached is mounted over the rear section of the chassis and
this is
used to grab an ocean container, lift it off the ground or the back
of a truck or railway wagon, transport it to the edge
of the quay and
load it on board a vessel moored alongside. That function is
demonstrated in the photograph attached hereto as
Annexure “B”.
[19]
The Reach Stacker is equipped with a powerful six cylinder 12 litre
diesel engine. It has an automatic gearbox consisting of
4 forward
and 4 reverse gears and can reach a maximum speed of 24 km/h. The
Reach Stacker is equipped with,
inter alia
, fully functional
headlights (low and high beam), tail and brake lights, a reverse
light, and front and rear indicator lights.
It also has a set of
windscreen wipers and washers, a hooter and a handbrake. The driver
sits in an enclosed cab which is equipped
with a seat and seatbelt, a
speedometer, rear view mirrors and a video camera to afford the
driver improved vision to the rear.
THE
REACH STACKER’S AREA OF OPERATION
[20]
The vehicle in question was registered with the City of Cape Town
under registration number CA 825 213. It can operate
on any
public road but due to its weight and the fact that its width exceeds
the permissible limit of 2,5m, it may only do so while
under the
escort of vehicles equipped with warning lights. The expert witness
for the appellant, Mr. Grobbelaar, compared this
to the type of
travel ordinarily undertaken by abnormal load vehicles and pointed
out that due to its size and speed limitations
the vehicle may have
to travel outside of peak traffic times and via a route designated by
the traffic authorities.
[21]
Mr. Grobbelaar visited the Cape Town Harbour and observed how a Reach
Stacker operates. Contemporaneous photographs show how
it would be
required to travel along a designated road in the terminal –
the road is clearly demarcated with appropriate
road markings –
in an area which was open to a variety of vehicles driven by the
general public. The witness illustrated
his testimony with reference
to a number of photographs which were before the Court
a quo.
[22]
In relation to the photograph attached hereto as Annexure “C”,
the uncontested evidence of Mr. Grobbelaar, when
questioned by the
Court and counsel for the appellant, Mr. Benade, was to the following
effect.
“
COURT:
You say on…[Annexure “C”] is where they pick up
the container and, on the right-hand side… (Intervention)
---
Yes,..[Annexure “C”]
…
and
then take it on the left-hand side where it’s loaded onto a
ship? --- That’s correct, yes, M ‘Lord, this photograph

is just taken in the opposite direction to the previous one, and one
can see the ship on the left-hand side and this large space
on the
left-hand side where the accident actually occurred, just a little
bit more towards the photographer and opposite the photographer.
But
the reach stackers use this road up and down, travelling from wharf
to wharf….
MR BENADE:
There is a little car parked on the left-hand side and further up it
looks like a bakkie parked. --- That’s correct.
Is that correct?
So this space, and these roads, are they limited for usage by just a
reach stacker, or the vehicle that was involved
in this incident? ---
No M ‘Lord, there are other vehicles using the road, which we
also found when we were travelling to
the scene and back. And one can
see them parked over there.”
[23]
It is, further, common cause that the Reach Stacker may be be
required to move from one port in the harbour to another to move

containerized cargo. In so doing it would travel on an ordinary
public road, or at the very least on a road such as that depicted
in
Annexure “C” which appears to be a road as contemplated
in cases such as
Mbendera
and
Bell.
WAS
THE REACH STACKER DESIGNED TO BE PROPELLED ON A ROAD?
[24]
Counsel for the respondent accepted unequivocally in argument before
us that the Reach Stacker travelled on roads as contemplated
under
the Act in the harbour: both public roads and other areas which
constituted roads as discussed in
Mbendera.
But that is
not the test. As
Chauke
and
Van den Berg
held the question to be asked is, viewed objectively, whether the
persons responsible for the design of the Reach Stacker intended
that
it should be propelled on a road.
[25]
Having regard to the uncontested evidence of Mr. Grobbelaar it seems
to me to be clear that the very function of the Reach
Stacker
requires it to move around the harbour to adequately perform its
work. Collecting a container at one place and transporting
it to the
quayside would of necessity require it to be propelled around the
harbour. The areas over which it is so propelled, so
the photographs
handed in by Mr. Grobbelaar demonstrate, include the demarcated
traffic lanes in the harbour used by the public
and the flat parking
and storage areas adjacent thereto.
[26]
The day-to-day functioning of the Reach Stacker is dependent on its
ability to be propelled, at times on a road and at times
elsewhere.
Similarly, when it is required to move to another part of the
harbour, it has to be self-propelled albeit in appropriate

circumstances guided by a set of escorting vehicles. In so doing it
would travel down a demarcated road and possibly even a public
road.
That is very much part of the ordinary work of the Reach Stacker.
[27]
In
Van
den Berg
Streicher JA expressly dealt with the situation where a slow and
cumbersome vehicle was required to move from one area of
functionality
to another. After describing the distinguishing
features of the PTR
[6]
,
His Lordship remarked as follows regarding the significance of such a
journey.
[12] Counsel for
the appellant contended that objectively considered the PTR was
nevertheless not designed for propulsion on a road
because it is
inherently dangerous to drive it on a road for the following reasons-
(a)
the maximum speed at which it can travel is 20 km per hour;
(b)
its tyres are smooth, with the result that it may skid; and
(c)
its centre of gravity is high as a result of which it may tip over….
[13] The Judge
a
quo
held that the driving of the
PTR on stretches of public road between construction sites cannot be
regarded as ‘extraordinarily
difficult and hazardous unless
special precautions or adaptations were effected’. I agree and
shall deal each of three reasons
advanced in turn.”
[28]
After analyzing the purported dangers alluded to by counsel for the
RAF, the Learned Judge of Appeal concluded as follows.
“
[17] In
the light of the fact that the PTR is in fact generally used for
travelling on a public road from one construction site
to another and
that its design is such that it can be safely done, I am of the view
that one cannot but conclude that it was designed
for that purpose,
whatever other purposes it may have been designed for.”
[29]
Applying similar reasoning to the facts at hand, it is clear that the
Reach Stacker was designed and equipped to be self-propelled
around
the harbour along roads and over areas such as parking and storage
lots adjacent thereto, in the ordinary course of its
work. The fact
that it may need to be escorted along certain of those routes does
not, in my considered view, detract from the
fact that this is part
and parcel of its everyday work, just as an abnormal load low-bed
trailer transporting a large piece of
heavy equipment such as an
electrical transformer, would similarly be required to be escorted
along a public road due to the fact
that it exceeds the permissible
width for travel without an escort.
[30]
Counsel for the respondent sought to persuade us that this case was
on all fours with
Day
in which the Supreme Court of Appeal held that a Komatsu model
forklift was not a motor vehicle as contemplated under the MMVAF

Act.
[7]
The evidence in that matter, in which Mr. Grobbelaar fortuitously
testified on behalf of the appellant Fund, showed that the vehicle
in
question was fitted with much of the paraphernalia which the Reach
Stacker has and that it travelled on roads outside of the
yard from
time to time. However, its primary function, as a forklift, was to
lift goods in storage yards, lumber mills and the
like.
[31]
It is important to note, in the first place, that
Day
was decided some 7 years before
Van den Berg
and Navsa
JA did not enjoy the benefit of Streicher JA’s subsequent
qualification of the
dictum
in
Chauke
. Navsa JA
may have viewed the matter differently had he considered that
analysis of
Chauke.
[32]
But, more fundamentally, the intended utility of the vehicle in this
case is wholly different to that in
Day.
As I have
attempted to demonstrate above, the primary function of the Reach
Stacker differs from a forklift such as the Komatsu
in
Day
in that it is required as part of its everyday function to traverse
both public roads and other non-statutory roads such as those
as
contemplated in
Mbendera
and
Bell
to do
its job. And, therein lies the answer to counsel’s submissions.
Objectively viewed, the designers of the Reach Stacker
would have
contemplated that it would be required to be propelled along such
roads in the harbour.
CONCLUSION
[33]
In the circumstances I conclude that the Reach Stacker with
registration number CA 825 213 which collided with the deceased

was a motor vehicle as defined in
s1
of the
Road Accident Fund Act,
56 of 1996
. It follows that the appeal should succeed with costs and
that the order of the Court
a quo
should be varied
accordingly
.
IN
THE CIRCUMSTANCES I WOULD PROPOSE THE FOLLOWING ORDER:
A.
The appeal succeeds with costs.
B.
The order of the court
a
quo
is set aside and replaced with the
following :
1.
The vehicle in the present case, a Reach
Stacker with registration number CA 825 213, is declared to be a
motor vehicle as
contemplated in
section 1
of the
Road Accident Fund
Act, 56 of 1996
.
2.
The defendant is ordered to pay the
plaintiff’s costs of suit, including the qualifying expenses of
the expert witness, Mr.
Barry Grobbelaar
__________________
GAMBLE,
J
LE
GRANGE, J:
I
AGREE.
IT
IS SO ORDERED.
_________________
LE
GRANGE, J
SIEVERS,
AJ:
I
AGREE
___________________
SIEVERS, AJ
[1]
Chauke v Santam Ltd
[1996] ZASCA 120
;
1997 (1) SA 178
(A) at 181G;
Bell
v Road Accident Fund
2007
(6) SA 48
(SCA) at [10];
[2]
Road Accident Fund v
Mbendera and others
[2004] 4 All SA 25
(SCA) at [13]
[3]
See for example
Chauke v
Santam Ltd,
supra;
Mutual and Federal
Insurance Co Ltd v Day
2001 (3) SA 775
(SCA);
Road
Accident Fund v Mbendera and Others
,
supra
;
Road Accident Fund v Vogel
2004 (5) SA 1
(SCA);
Road
Accident Fund v Van den Berg
2006 (2) SA 259
(SCA) and
Bell
v Road Accident Fund
2007
(6) SA 48 (SCA).
[4]
183 A-D
[5]
The Multilateral Motor Vehicle Accidents Fund Act, 93 of 1989 (“
the
MMVAF Act”
)
[6]
See [10] and [11] in para 13 above
[7]
The definition of a motor vehicle under that act is the same as
under the Act