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[2020] ZASCA 72
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Road Accident Fund v Mbele (555/19) [2020] ZASCA 72; 2020 (6) SA 118 (SCA) (22 June 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 555/19
In
the matter between:
THE
ROAD ACCIDENT
FUND APPELLANT
and
THANDISWA
LINAH
MBELE RESPONDENT
(In
her personal capacity and on behalf of her four minor children)
Neutral
citation:
The Road Accident Fund v
Mbele
(555/19)
[2020] ZASCA 72
(22 June
2020)
Coram:
MAYA P and ZONDI, PLASKET and NICHOLLS JJA and
EKSTEEN AJA
Heard
:
No oral hearing in terms of
s 19(a)
of the
Superior Courts Act 10 of
2013
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication
on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 10h00 on 22 June
2020.
Summary:
Motor vehicle accidents – claim
for damages under
Road Accident Fund Act 56 of 1996
– whether a
Reach Stacker is a ‘motor vehicle’ as defined in the
Road
Accident Fund Act – purposes
for which vehicle is generally
used ought to be taken into account in determining objectively the
use for which it had been designed
– Reach Stacker found to be
a motor vehicle as defined.
ORDER
On
appeal from:
Western Cape Division of
the High Court (Gamble, Le Grange JJ and Sievers AJ, sitting as court
of appeal):
The appeal is dismissed
with costs including the costs of two counsel where employed.
JUDGMENT
Zondi JA (Maya P and
Plasket and Nicholls JJA and Eksteen AJA concurring)
[1]
The issue in this appeal is whether a large industrial vehicle called
a Reach Stacker is a motor vehicle as contemplated in
s 1 of the Road
Accident Fund Act 56 of 1996 (RAF Act). A photograph of this vehicle
is attached to this judgment as annexure ‘A’.
The
appellant, the Road Accident Fund (RAF), contended that a Reach
Stacker is not a motor vehicle and that the respondent’s
claim
was not competent in terms of the RAF Act. The precise nature of a
Reach Stacker is important because it determines the competence
of a
claim under the RAF Act by a person who alleges that he or she has
suffered damage or loss resulting from a collision with
a Reach
Stacker. The full bench of the Western Cape Division of the High
Court (high court), reversing the decision of the court
of first
instance, held that a Reach Stacker is a motor vehicle as
contemplated in s 1 of the RAF Act.
[2]
The issue arose in the following circumstances. On 20 February 2010
Mr Simphiwe Robert Makutoana (the deceased) was a pedestrian
at
the Multipurpose Terminal, Cape Town Harbour, where he was employed
as a stevedore when a Reach Stacker operated by one Mr Eugene
Andrea collided with him. The deceased died as a result of the
injuries he sustained in the collision. The respondent, Ms Thandiswa
Linah Mbele, the deceased’s common law wife, instituted action
for loss of support in the high court against the RAF for
the payment
of damages she and her four minor children suffered as a result of
the death of the deceased. Ms Mbele’s claim
against the RAF for
loss of support was based on the provisions of the RAF Act.
[3]
The RAF disputed liability and alleged, among others, that the Reach
Stacker was not a motor vehicle as defined in the RAF Act,
thereby
asserting that Ms Mbele did not have a claim under the Act. By
agreement between the parties the high court made an order
in terms
of rule 33(4) of the Uniform Rules of Court that the question whether
the Reach Stacker was a motor vehicle as defined
in the RAF Act be
adjudicated first, and that all other issues be postponed for later
determination.
[4]
In the event, the trial proceeded before Desai J, who after hearing
evidence on the separated issue, determined that the Reach
Stacker
was not a motor vehicle as contemplated in the RAF Act and dismissed
Ms Mbele’s claim. Ms Mbele, with leave granted
by Desai J,
appealed to the full bench of the same Division. The full bench
(Gamble, Le Grange JJ and Sievers AJ concurring) upheld
the appeal.
It found that the Reach Stacker concerned was a motor vehicle as
contemplated in s 1 of the RAF Act. The full bench
accordingly set
aside the order made by Desai J and ordered the RAF to pay Ms Mbele’s
costs, including the qualifying expenses
of her expert witness, Mr
Barry Grobbelaar. The appeal, with the special leave of this Court,
is against this finding. The parties
agreed to have it determined
without an oral hearing in terms of
s 19
(a)
of the
Superior Courts Act 10 of 2013
.
[5]
As I have already stated, the issue is whether the Reach Stacker is a
motor vehicle as defined in s 1 of the RAF Act. This section
defines
a ‘motor vehicle’ 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’. The definition displays
three
requirements before a vehicle qualifies as a motor vehicle for
purposes of the RAF Act. The vehicle (a) must be propelled
by fuel,
electricity or gas and (b) must be designed for propulsion (c) on a
road. Such a vehicle includes a trailer, caravan or
implements
designed to be drawn by a motor vehicle as defined.
The design of a Reach
Stacker
[6]
The Reach Stacker under consideration was designed primarily for
lifting, manoeuvring and stacking containers in the container
yards
of small terminals or medium sized ports. It is able to transport
containers for short distances relatively quickly and stack
them. It
is able to operate in tight spaces. For this purpose, the Reach
Stacker is equipped with a boom capable of being extended
and raised
hydraulically. The boom is mounted on a chassis. The vehicle has six
wheels. The four front wheels (two left and two
right) are driven by
the engine and the machine is steered by means of its rear wheels
(one left and one right). It is the latter
that provides the
manoeuvrability in tight spaces. It is fitted with rear-view mirrors.
[7]
This specific Reach Stacker is equipped with full road-going
lighting, including high beam and low beam headlights, tail lights,
indicators, brake lights, reverse lights and position lights. It is
furthermore fitted with windscreen wipers and washers, a hooter
and a
handbrake. The overall length of the Reach Stacker (without the boom)
is 11.5m. The height and width of the reach stacker
are indicated in
the specifications as being 4.5m and 4.15m, respectively. Its service
weight is 71 800kg.
[8]
The Reach Stacker has no suspension system between the wheels and the
body. Suspension is only provided by the spring characteristics
of
the pneumatic tyres. The top speed of the Reach Stacker is 24.5km/h
when it is unloaded, and 22km/h at the rated load. It is
fitted with
a four speed automatic gearbox with four forward and four reverse
gears. The Reach Stacker is registered for use on
public roads and
has the registration number CA825213. It is fitted with a Scania six
cylinder, four-stroke diesel engine with
a 12 litre capacity. The
power and torque ratings of the engine are provided as being 243kW at
2 100rpm and 1 589Nm at
1 400rpm.
[9] It is clear from its
features that the Reach Stacker is propelled by means of diesel fuel
and the evidence was that it transported
containers on roads within
the port premises. This Court in
Road Accident Fund v Mbendera
2004 (4) All SA 25 (SCA) (para13) held that the word ‘road’
in s 1 of the RAF Act is not limited to a public road.
To that extent
the Reach Stacker meets two of the requirements of the definition
section, that is, ‘propulsion by diesel
on a road’. The
question is whether the fact that it was designed primarily for use
in container yards and to load containers
onto ships, off load them
and stack them, disqualifies it from being a ‘motor vehicle’
as contemplated in the RAF Act.
Put differently, the question is
whether the Reach Stacker was designed for or adapted for propulsion
or haulage on a road.
Whether the Reach
Stacker was designed for or adapted for propulsion or haulage on a
road
[10]
The meaning of the words ‘motor vehicle’ appearing in s 1
of the RAF Act has received judicial attention in cases
such as
Chauke v Santam Limited
[1996] ZASCA 120
;
1997
(1) SA 178
(SCA);
[1997] 4 All SA 59
(A);
Road
Accident Fund v Mbendera
, supra;
Mutual
and Federal Insurance Co Ltd v Day
2001
(3) SA 775
(SCA);
[2001] 4 All SA 6
(A);
Road
Accident Fund v Vogel
2004 (5) SA 1
(SCA);
Road Accident Fund v Van den Berg
2006 (2) SA 250
(SCA); and
Bell
v Road Accident Fund
2007 (6) SA 48
(SCA).
[11] This Court in
Chauke
, which concerned whether a forklift is a motor vehicle,
set out the test to be applied in determining whether a vehicle is a
motor
vehicle as defined in the RAF Act as follows (at 183A-D):
‘
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.’
[12]
The test whether a vehicle is designed for use on a road is
objective. The question is whether a reasonable person viewing
the
vehicle in question would come to the conclusion that such vehicle
when used on a road will not create a danger to other road
users. In
this regard, design features such as lights, indicators, field of
vision, hooter, maximum speed and engine output are
all
considerations which apply in deciding whether or not there is
compliance with the definition.
[13]
Courts have not been consistent in their application and
interpretation of the
Chauke
test.
Chauke
concerned a ‘Clark forklift’. The forklift in question
had neither lights nor indicators. It did not have a hooter.
It had a
top speed of 8km/h. It was not used on a road. It was used in and out
of the warehouse and in the yard. The evidence established
that it
operated in a restricted area and under limited conditions. The
forklift drivers were not allowed to drive out of the premises.
It
could not be registered in terms of the statutory licensing rules
unless modified.
[14]
In
Day
, a
‘Komatsu forklift’ was not held to be a motor vehicle as
it posed a hazard to other road users and steering it in
traffic was
considered extraordinarily difficult and hazardous.
[15]
In
Bell
,
a ‘flatbed transporter’ operating on the airside area of
the airport was held to be a motor vehicle. It was used at
the
airport 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’.
[1]
[16]
In
Vogel
,
Marais JA pointed out that it was clear from this Court’s
interpretation of s 1 of the RAF Act that the road referred to
in the
definition ‘is not just any kind of road however restricted
public access, whether vehicular or on foot, may be, but
a road which
the public at large and other vehicles are entitled to use and do
use; and in general parlance, a public road. . .
[and] the mere fact that the item is capable of being driven on a
public road is not per se sufficient to bring it within the
definition.’
[2]
The learned judge
emphasised that the appropriate test is whether general use on public
roads is contemplated. He went on to state:
‘
[6]
If, objectively regarded, the use of the item on a public road would
be more than ordinarily difficult and inherently potentially
hazardous to its operator and other users of the road, it cannot be
said to be a motor vehicle within the meaning of the definition
[
Chauke
at
183C]. (I infer that this is because it then cannot reasonably be
said to have been designed for ordinary and general use on
public
roads.)
[7] I should add that I
do not read the previous judgments of this Court as laying down that
unless the item in question can be
characterised as in para [6] it
must be regarded as satisfying the requirements of the definition of
motor vehicle. I understand
this characterisation to be merely one of
many conceivable indications that an item was not designed for
general use on public
roads. The use of a particular item on a public
road may not be inherently difficult or dangerous but it may still
not qualify
as a vehicle designed for the purposes set out in the
definition of s 1 of the Act.
[8]
That an item may have been designed primarily for a purpose not
covered by the definition of motor vehicle in the Act does not
necessarily disqualify it from being regarded as a motor vehicle as
defined. If it was also designed to enable it to be used on
public
roads in the usual manner in which motor vehicles are used and if it
can be so used without the attendant difficulties and
hazards
referred to in para [6], it would qualify as a motor vehicle as
defined. In short, such latter use need not be the only
or even the
primary use for which it was designed.’
[3]
[17] Marais JA doubted
the soundness of the suggestion in
Chauke
that the words
‘designed for’ have a less subjective connotation than
the words ‘intended for’. He stated
at para 10:
‘
Indeed,
when Olivier JA ultimately formulated his own interpretation [
Chauke
at 183B] of what the word “designed”, in the context of
the Act, conveyed, he posited both a subjective and an objective
test. To say that the word “conveys the ordinary, everyday and
general purpose for
which the vehicle
was conceived and constructed
”
(my emphasis) is to postulate a subjective test. To add “and
how the reasonable person would see its ordinary, and
not some
fanciful, use on a road” postulates an objective test.’
Footnotes omitted.
[18] In
Van den Berg
,
Streicher JA rejected Marais JA’s interpretation of the
Chauke
test. He stated at para 7 that:
‘
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 construed,
he was, in my view, referring
to the general purpose for which the vehicle,
objectively
determined
, was conceived and
construed.’
[19] Streicher JA went on
to say at paras 8 and 17:
‘
[8]
It is common cause that the PTR [pneumatic tyre roller] 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.’
‘
[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 safely be 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.’
[20]
The full bench in this matter, applying the reasoning in
Van
den Berg
, held at para 29 that ‘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. . . detract from the fact that this
is part and parcel
of its everyday work, just 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.’
[21]
The appellant attacked the reasoning of the full bench on two
grounds. First, that it erred in its application of the law by
relying upon the findings in
Van den
Berg
in its judgment. The appellant
argued that
Van den Berg
was
distinguishable from
Chauke
.
The argument was that when Streicher JA in
Van
den Berg
applied the reasonable person
test, he did so from the point of view that the PTR was designed for
road use, and the only design
limitation, being the maximum speed,
did not constitute a danger of such magnitude so as to ‘
conclude
that the vehicle was not designed for use on a road
’.
[22]
For this reason, so it was argued, Streicher JA did not have to fully
apply the second leg of the
Chauke
test
to all the design features and limitations of PTR, that is,
determining whether a reasonable person would perceive the vehicle’s
‘
ordinary use
’
on a road as ‘
extraordinarily
difficult and hazardous
’. This
was because, the argument proceeded, the evidence showed that the PTR
had been designed for propulsion on the road,
and safely so, whether
for compacting road surfaces or travelling between construction
sites.
[23]
Secondly, it was submitted by the appellant that the full bench erred
in its application of the test enunciated in
Chauke
in its determination of the features, purpose and intended use of the
Reach Stacker. The appellant argued that in relying on
Van
den Berg
the full bench ignored the
fact that the design features and limitations of the vehicles were
distinguishable between
Chauke
and
Van den Berg.
Further,
in
Van den Berg
the court did not consider the second leg of the
Chauke
test, that is, the ‘ordinary use’ as perceived by a
reasonable person, because the court, at the outset, had determined
that the PTR had been designed to travel on roads, and safely so,
from the time it was ‘conceived and constructed.’
It was
accordingly submitted by the appellant that had the full bench
properly applied the
Chauke
test to the vehicle under consideration, as was applied in
Day
and
Vogel
,
it should have found that the ‘ordinary, everyday and general
purpose’ of the Reach Stacker and its ‘ordinary
use’
on the road, did not render it a ‘motor vehicle’ in terms
of RAF Act.
[24]
The criticism of the full bench’s reasoning is unjustified. The
full bench made it clear in para 33 of its judgment that
‘[o]bjectively viewed, the designers of the Reach Stacker would
have contemplated that it would be required to be propelled
along
such roads in the harbour.’ It reached this conclusion after
analysing evidence regarding the Reach Stacker’s
area of
operation as well as its design features. The intended utility of the
Reach Stacker is wholly different to the vehicle
in
Day
,
a Clark forklift, and
Vogel
,
a mobile Hobart ground power unit, whose primary function was to
supply power to stationary aircraft. The vehicle under consideration
is designed and suitable for travelling on a road within the port.
This Court in
Mbendera
(para14) made it clear that the purposes of forklifts, cranes,
lawnmowers and mobile power units are very different.
[25]
In my view, the Reach Stacker under consideration is a motor vehicle
as defined in s 1 of the RAF Act. Despite its imposing
and gigantic
size in terms of mass (71.8 tons), width (4.15m), length (11.5m),
height (4.5m) and speed limitation of 24km/h, objectively
viewed, it
cannot be said that its driving on a road used by pedestrians and
other vehicles would be extraordinarily difficult
and hazardous. It
is fitted with all the controls and features required to be fitted to
a motor vehicle so as to enable it to be
used with safety on a road
outside the container yard and port terminal where it primarily
operates.
[26]
It has a number of features of a motor vehicle mentioned above and is
driven in a manner similar to a motor vehicle. Mr Harry
Sonnie, the
RAF’s expert witness, conceded that the Reach Stacker has been
adapted for use on a road. It is apparent that
certain features of
the Reach Stacker such as its huge size, pneumatic tyres, four wheels
at the front and a steering axle at the
back, are there in order to
enable it to perform its primary function of lifting heavy cargo
containers including manoeuvring in
very tight spaces. Its other
features, such as its maximum speed of 24km/h, driving lights,
indicators, windscreen wipers and a
hooter enable it to be used with
safety on a public road when it travels from port to port to either
load or transport containers.
[27]
Moreover, because of its operation on Transnet premises, the Reach
Stacker was required to be registered and was registered
for use on
public roads in terms of the National Road Traffic Act. Mr
Grobbelaar, the respondent’s expert witness explained
that that
was so ‘because there is other traffic on the road when it
travels between two ports, it’s on a road where
there’s
other public traffic’. Mr Sonnie’s contrary version that
the Reach Stacker was registered ‘solely
for Bidvest’s
identification’ as in general Reach Stackers are not required
to have a roadworthy certificate, but only
a load test one as they
are built for the purpose of lifting cargo, cannot be correct. The
reasons advanced by Mr Grobbelaar appear
to me to be so compelling
that I have no hesitation in accepting them. The probabilities are
that the Reach Stacker was registered
because of the nature of the
area and the surroundings in which it operated.
[28]
It was Grobbelaar’s evidence that the use of the vehicle under
consideration is not hazardous ‘if it’s used
the way it’s
supposed to be used and. . . driven [the] way it’s
supposed to be driven’ and he added
that ‘when it travels
within the confines of … where the incident happened and where
there is that road, there it
travels on its own, and when it travels
from where it’s stored to where it works. But if it were to go
outside that environment,
it would have to have escort vehicles at
the front and the back to take it, and it does, it does travel.’
When asked why
it would travel outside of the confined area, Mr
Grobbelaar responded ‘[t]o take it to a different section in
the harbour’.
As regards the layout of the road of the scene of
the incident, Mr Grobbelaar testified, based on the observation
he made
when he visited the scene, that the road used by the Reach
Stackers to travel from one container yard to the other is ‘a
normal road between [the] buildings with a centre line, a broken
centre line, and which carries traffic in both directions’
and
that they use ‘a two-way road, where there’s also other
traffic, to convey these containers.’ I did not understand
Mr
Sonnie to be disputing this evidence.
[29]
In the result the appeal is dismissed with costs including costs of
two counsel where employed.
_________________
ZONDI JA
JUDGE
OF APPEAL
Appearances:
For
appellant: R Jaga SC (with him D Pillay)
Instructed
by: Mayats Attorneys, Claremont
c/o
Symington De Kock Attorneys, Bloemfontein
For
respondent: R van Rooyen SC (with him E Benade and N
Mashava)
Instructed
by: DSC Attorneys, Cape Town
c/o
Rosendorff, Reitz & Barry Attorneys, Bloemfontein
[1]
Bell
para 6.
[2]
Vogel
paras
3-4.
[3]
Day
para 14.