THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 437/2022
In the matter between:
NDIDZULAFHI NEMANGWELA APPELLANT
and
ROAD ACCIDENT FUND RESPONDENT
Neutral citation: Nemangwela v Road Accident Fund (437/2022) [2023] ZASCA
90 (8 June 2023)
Coram: MOCUMIE and MOLEFE JJA and NHLANGULELA, DAFFUE and
MASIPA AJJA
Heard: 19 May 2023
Delivered: 8 June 2023
Summary: Claim for damages under the Road Accident Fund Act 56 of 1996 –
whether a Hyster 250 forklift is a ‘motor vehicle’ as defined in the Road Accident Fund
Act – purpose of use taken into account in objectively determining the use for which it
had been designed – held that a Hyster 250 forklift is not a motor vehicle as defined
in the RAF Act.
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ORDER
On appeal from: Limpopo Local Division of the High C ourt, Thohoyandou (Kgomo
ADJP, sitting as court of first instance):
The appeal is dismissed, each party to pay its own costs.
JUDGMENT
Molefe JA (Mocumie JA and Nhlangulela, Daffue and Masipa AJJA concurring):
[1] The issue in this appeal is whether a Hyster 250 forklift is a ‘motor vehicle’ as
contemplated in s 1 of the Road Accident Fund Act 56 of 1996 (the RAF Act). The
appeal is against the order of the Limpopo Division of the High Court, Thohoyandou
(the high court) . It held per Kgomo ADJP that the forklift is not a ‘motor vehicle’ as
contemplated in the RAF Act. This appeal is with leave of the high court.
[2] The issue arose in the following circu mstances. On 4 November 2016, Ms .
Ndidzulafhi Nemangwela1 was knocked down by a Hyster 250 forklift driven by Mr .
Mashudu Tshishonga at her workplace at Nzhelele Spar, Vhembe district, Limpopo.
She instituted an action against the RAF for damages arising out of the injuries she
sustained in the accident. The RAF conce ded the merits at 80/20% in favour of Ms .
Nemangwela, but on the assumption that the high court finds that the forklift is indeed
a motor vehicle.
1 Ms Nemangwela as per ID (although from the papers she is interchangeably referred to as
Menangwele which seems to be a typo).
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[3] In its plea the RAF did not expressly deny that the forklift that caused the
damage was a motor vehicle. It claimed no knowledge of the allegations relating to the
incident, denied them and put Ms Nemangwela to the proof thereof. At the trial, and
before evidence was led on the merits, the parties agreed that the only remaining issue
in respect of the merits was whether the particular forklift was a motor vehicle or not.
[4] Ms. Nemangwela was the only witness called upon to testify in her case. She
testified that on 4 November 2016, at approximately 06h45, she reported for duty. She
was merchandising for Sasko at the premises of the Nzhelele Spar store . At her
workplace inside the Spar premises she saw the forklift reversing towards the
receiving bay. The forklift knocked her, causing her to fall where after it drove over her
leg. She sustained injuries and was admitted to hospital. In her testimony, she
described a few key points in relation to the accident area. She testified that the forklift
was generally used to carry loads within the Nzhelele Spar premises; that the receiving
zone is used for stock loading ; and the receiving zone is separated from the outside
parking area by a gate. The forklift would however, sometimes be driven outside the
Spar premises, crossing over the public road to Boxer store.
[5] The driver of the forklift testified on behalf of the RAF. He testified that he was
licensed to drive the forklift and had been driving it for nine months before the incident
occurred. He was trained on its operation and use by its manufacturers and/or
distributors. He used the fork lift for loading and offloading goods from the Spar
receiving area. He denied that the forklift would sometimes be driven outside the
premises or around the parking areas . He testified that he was specifically told and
trained not to drive the forklift on the main road. In his day-to-day activities he carried
the load from the receiving zone to the store, but avoided the store entrance used by
the customers.
[6] As I already stated, the issue is whether the Hyster 250 forklift is a motor
vehicle as defined in s 1 of the RAF Act. This section defines a ‘motor vehicle’ as ‘any
vehicle designed or adopted for propulsion or haulage on a road by means of fuel, gas
or electricity, including a trailer, a caravan, an agric ultural or any other implement
designed or adapted to be drawn by such motor vehicle’.
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[7] There are three requirements to be met for a vehicle to qualify as a ‘motor
vehicle’ under the RAF Act. The vehicle must: (a) be propelled by fuel, gas or
electricity; (b) be designed for propulsion; and (c) on a road. The high court found that
the forklift that knocked Ms. Nemangwela down cannot be classified as a motor vehicle
for the purpose of the RAF Act . It held, furthermore, that the collision occurred in an
area militated against the RAF incurring liability for her injuries.
The design of a Hyster 250 forklift
[8] Despite the absence of technical evidence and the specifications of the forklift
by the manufacturer in the high court , the forklift under consideration was designed
primarily for loading/offloading goods from the receiving area into the Spar store. For
this purpose, both parties agreed that the Hyster 250 forklift is equipped with a diesel
engine, a battery, and one seat for the driver. It has an accelerator, a brake pedal and
a steering wheel. The rear wheels only turn when the steering wheel is turned.
Although it is equipped with lights, indicators and a hoo ter, it has no speedometer ,
brake lights and mirrors. Notably, t he loadin g gear is at the front , which can be a
possible impediment to the driver. It is clear from these features that the Hyster 250
forklift is propelled by means of a battery and diesel fuel . The evidence presented
showcased that it transported goods in and out of the Spar store particularly at the
receiving area of the Spar premises.
[9] Counsel for the RAF argued that the incident occurred at the receiving bay
which was a private loading facility and not a public road to be used by the general
public at large. He argued that for a collision to occur within the context of the RAF
Act, the driver must have driven the vehicle on a public road. He relied heavily on RAF
v Vogel2 where this Court referred repeatedly to use of a ‘public road’. This reasoning
was to mainly support the argument that since the Hyster 250 forklift was not used on
a public road, it was not a motor v ehicle. The court in Vogel held that the true use or
general use of a vehicle on a public road is determinative of whether it is a motor
vehicle as prescribed by the RAF or not. It was further held that:
2 RAF v Vogel 2004 (5) SA 1 (SCA).
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‘If objectively regarded, the use of an item on a p ublic road would be more than ordinarily
difficult and inherently potentially hazardous to its operator and other road users of the road,
it cannot be said to be a motor vehicle within the meaning of the definition.’3
Herein, the overriding consideration was the purpose of the unit, and its suitability to
travel on a road. The mobile Hobart ground power unit that provided electrical power
to stationary aircraft at airports (in Vogel) was therefore confirmed not to be a ‘motor
vehicle’ designed for use on a road.
[10] In RAF v Mbendera4 this Court held that the word ‘road’ in s 1 of the RAF Act
is not limited to a public road. The issue in Mbendera was whether a Caterpillar 769
truck could be regarded as a motor vehicle for purpose s of the RAF Act. The court
held that the truck in issue looked like a motor vehicle, and its purpose was to travel
on roads to haul loads. It was designed and suitable fo r that purpose , although not
suitable for use on ordinary roads as it was simply too big. Also worthy of note , as
stated in obiter dictum, is that the purposes of forklifts, cranes, lawnmowers and mobile
power units are very different from the truck in that matter. The fact that they can travel
on a road is incidental to their purpose. Therefore, this Court found that the Caterpillar
769 truck (in Mbendera) was a motor vehicle as defined in the RAF Act.
[11] The question in this appe al is whether the design of the Hyster 250 forklift
disqualifies it from being a motor vehicle as contemplated in the RAF Act. In other
words, was the forklift in question designed for or adapted for propulsion or haulage
on a road?
[12] In Chauke v Santam Ltd,5 a case involving a collision between a worker and a
forklift in the enclosed area of a transport company , this Court reviewed relevant
statutory provisions and applicable case authorities since 1942, when compulsory third
party insurance was introduced into South Africa. The court 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 Ac t 56 of 1972. The
definition was formulated in similar terms as the RAF Act. Th is Court in Chauke
3 Ibid para 5.
4 RAF v Mbendera [2004] 4 All SA 25 (SCA).
5 Chauke v Santam Ltd [1996] ZASCA 120; 1997 (1) SA 178 (SCA); [1997] 4 All SA 59 (A) at 183A -D.
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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 forklift in question was therefore
not a motor vehicle under the applicable Act.
[13] To rebut the abovementioned controversies, Counsel for Ms . Nemangwela
submitted that the Chauke decision differed from this matter in that: Firstly, the forklift
in Chauke did not have headlights and was only driven in the premises during day
time, whereas the forklift in this matter had headlights. Secondly, that it did not have
indicators whereas the forklift in this matter had indicators. Thirdly, the forklift was not
used on the road but was only used in and out of the warehouse and in the yard,
whereas the forklift in question was not restricted to a demarcated area and would be
in the parking area where customers rested. It is important to note that the driver and
the appellant were the only witnesses in this matter.
[14] In Mutual and Federal Insurance Co Ltd v Day,6 this Court followed Chauke, to
confirm that the Komatsu forklift which was able to travel at a top speed of 32
kilometers per hour, was not a ‘motor vehicle’ as defined in the RAF Act because it
had amongst others, a rear wheel steering system which made steering in traffic
difficult and could lead to the forklift capsizing and was therefore hazardous for general
use on public roads. It also had a number of features that the forklift in Chauke did not
have: it was registered with the authorities and boasted a registration number.
[15] Counsel for Ms . Nemangwela relied on RAF v Mbele 7 and argued that the
Hyster 250 forklift is a ‘motor vehicle’ as contemplated in the RAF Act. In Mbele, this
Court dealt with the issue of whether a Reach Stacker is a ‘motor vehicle’ as
contemplated in s 1 of the RAF Act. A Reach Stacker is a large industrial vehicle that
combines components of a forklift and a mobile crane and is designed primarily for
lifting, maneuvering and stacking containers in the container yards of small terminals
of medium sized ports. The vehicle has six wheels. The four front wheels are driven
by the engine and the engine is steered by means of its rear wheels (one left, one
right). It is fitted with rear -view mirrors. It is equipped with full road -going lighting,
including high beam and low beam headlights, tail lights, indicators, brake lights,
6 Mutual and Federal Insurance Co Ltd v Day 2001 (3) SA 775 (SCA).
7 Road Accident Fund v Mbele [2020] ZASCA 72; 2020 (6) SA 118 (SCA).
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reverse lights and position lights. It is fitted with windscreen wipers and washers, a
hooter and a handbrake. Th is Court came to the conclusion in Mbele that the Reach
Stacker satisfies the requirements to be classified as a ‘motor vehicle’ in terms of th e
RAF Act.
[16] Reliance on Mbele is misplaced. It is trite that the primary purpose of the RAF
Act is to provide appropriate cover to all road users within the borders of South Africa,
to rehabilitate people injured, and to compensate for injuries or dea th.8 This case is
distinguishable from Mbele in that s 1 of the RAF Act is clear that ‘the vehicle must be
designed …for propulsion on a road.’ (My emphasis.) The Reach Stacker in Mbele
was designed for use on the roads in the harbor although it had to be escorted
(because of its size) when travelling on other roads. In the current matter the evidence
is that the Hyster 250 forklift did not travel on the public road.
[17] It is significant to note that a ‘road’ is not defined under the RAF Act ; therefore
it must bear its ordinary meaning of ‘a wide way leading from one place to another,
especially one with a specially prepared surface which vehicles can use.’ 9 This
definition is partially aligned to the definition in the National Road Traffic Act 93 of 1996
which restricts its definition to only ‘public road’. The focus o n the definition of ‘motor
vehicle’ for present purposes must therefore be on the words ‘vehicle designed …for
propulsion …on a road.’10
[18] The forklift in this case was used in and out of the Spar store at the receiving
area in the yard. This case is therefore similar to Chauke since in that case, the forklift
was not used on a road , but was used in and out of the warehouse in the y ard. The
receiving area is a private area and not a road. It is used only to receive and load
goods and is not used by the general public. The Hyster 250 forklift therefore does not
qualify to be classified as a motor vehicle for purposes of the RAF.
[19] Counsel for Ms . Nemangwela further submitted that legislation must be
interpreted through the prism of the Bill of Rights , and that the definition of motor
8 Millard and Smit Employees Occupational Injuries and the Road Accident Fund 2008 (3) TSAR 600.
9 Oxford English Dictionary; Oxford University Press (2016).
10 Op cit footnote 8.
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vehicle in the RAF Act should be aligned with the definition in the National Road Traffic
Act. He s ubmitted that this was in accordance with the injunction in s 39(2) of the
Constitution. I have considered this issue and note that the development of the
common law, is and was not an issue before the high court. If this court was to adopt
that approach, this will have far reaching consequences to numerous government
departments and private bodies like insurance companies who have not been invited
as parties in the matter. Accordingly, I am of the view that this is not merited.
[20] On the evidence which is common cause between the parties, there is no basis
for finding that this appeal was unnecessary. The appellant pursued an issue which
was raised at the trial for the first time. It had not been pleaded pertinently. Her conduct
cannot be said to constitute an abuse of court process. It would therefore be fair and
just that each party bears its own costs in respect of this appeal.
[21] In the result, the appeal is dismissed, each party to pay its own costs.
________________________
DS MOLEFE
JUDGE OF APPEAL
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Appearances
For appellant: S O Ravele
Instructed by: S O Ravele Attorneys, Louis Trichardt
Phatshoane Henney Attorneys ,
Bloemfontein
For respondent: L R Bomela
Instructed by: Road Accident Fund, Pretoria
State Attorney, Bloemfontein