IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 12070/2020
In the matter between:
PATRICK ANDREW DARVEL APPLICANT
and
THE ROAD ACCIDENT FUND RESPONDENT
Neutral citation: Darvel v Road Accident Fund (Case no: 12070/2020) [2025]
ZAWCHC … (2 October 2025)
Coram: NUKU J
Heard: 19 August 2025
Delivered: 2 October 2025
Summary: Practice – Application for leave to appeal, in terms of section 17(1) of
the Superior Courts Act, 10 of 2013 , against the judgment and order that found a
forklift with significantly improved design qualities not to be a motor vehicle as
defined in section 1 of the Road Accident Fund Act – such significantly improved
design qualities constituting compelling reason why the application for leave to
appeal should be granted – in addition to the reasonable prospects of success.
ORDER
The application for leave to appeal is granted to the Supreme Court of Appeal and
costs shall be costs in the appeal.
JUDGMENT
Nuku J :
[1] The applicant is the plaintiff in the main action. He instituted a damages
claim against the respondent due to injuries he suffered on 19 September 2019,
when a Toyota 8 series 8FD25 forklift collided with him as he was crossing
Lonedown Road, Hanover Park, Western Cape.
[2] The success of the applicant’s claim depended, among other factors, on
whether the forklift that collided with him qualified as a motor vehicle under the
definition in the Road Accident Fund Act, 56 of 1996. The applicant believed it
qualified, while the r espondent held a different view. The disagreement between
the parties focused on one of the requirements of a motor vehicle in the definition,
specifically whether the forklift was designed for road propulsion.
[3] The matter was decided in favour of the res pondent, and the applicant’s
claim was accordingly dismissed. That judgment is now the subject of this
application for leave to appeal.
[4] In concluding that the forklift in question was not designed for road
propulsion, this Court considered the dictum in Chauke1, which states that the key
test is whether general use on the road is intended.
[5] One of the grounds of appeal by the applicant is that the Court ignored the
evidence of Mr. Barry Grobbelaar (Mr. Grobbelaar), an expert forensic engineer,
who was called by the applicant and whose testimony indicated that the forklift in
question was designed with features that make it safe and suitable for road use,
including features that are not required if the forklift is only intended for
warehouse use.
[6] The applicant also argues that the Court erred in considering evidence from
previous cases involving forklifts with inferior designs compared to the current
one.
[7] Additionally, it was submitted that the court ignored what was stated in
Vogel2 to the effect that ‘ even if a vehicle is designed for a purpose other than its
general use on the roads, it does not necessarily disqualify a vehicle from being
considered a motor vehicle as defined if it is also designed for other uses .’ The
core of this argument was that the safety features of the current forklift, combined
1 Chauke v Santam 1997 (1) SA 178 (A).
2 Road Accident Fund v Vogel 2004 (5) SA 1 (SCA) at para [8].
with the fact that it has been seen, at least by Mr. Grobbelaar, being driven on the
roads, should have led the court to conclude that although it may have been
primarily designed for use in warehouses, such design does not disqualify it from
meeting the definition of a motor vehicle as defined.
[8] There is some merit in the applicant’s grounds of appeal because, although it
may have been simpler to conclude that older forklifts were n ot designed for road
propulsion, advancements in forklift design have complicated the issue. In this
regard, as the judgment records, the present forklift is definitely of superior design
compared to those considered by the courts previously. In fact, in o ne of those
cases examining older forklifts, it was the evidence of Mr. Grobbel aar that was
relied upon to conclude that such a forklift was not designed for road propulsion3.
[9] In addition to the above, there are also court statements that do not clarify
what ultimately determines the issue. For example, there is a part in Vogel where it
is stated that ‘it is sufficient if it is also designed or adapted to enable it to be used
for other purposes, which entails use thereof on roads.’
[10] In another part of the same judgment, it is stated that “ the existence of some
of the features that are common to motor vehicles properly so called does not take
the matter further. These features are obviously needed if the vehicle is to fulfill its
primary function as a mobile power source and be able to trave rse terrain where
people, equipment, and vehicles would be encountered. It does not mean that they
were provided to enable the unit to be used on public roads other than those within
the operational area of airports .”4 The same case also states that “ The use of a
particular item on a road may not be inherently difficult or dangerous, but it may
3 Mutual and Federal Insurance Co Ltd v Day 2001 (3) SA 775 (SCA).
4 Vogel at 4H-5C.
still not qualify as a vehicle designed for the purposes set out in the definition of
section 1 of the Act,”5
[11] Added to the above is the observation that in most o f the cases that
considered the question, a lot of attention was paid to the features of the forklift or
piece of machinery in question. And as Navsa JA stated in Day6 ‘It is, however,
conceivable that in a particular case a forklift owner, designer or manufacturer
may be able to persuade a Court that the kind of problem described by Grobbelaar
has been overcome’. This may well be such a matter where a Court has to consid er
whether the design qualities of the forklift in question has overcome the problems
that disqualified previous forklifts.
[12] For all the reasons stated above, I believe the appeal has reasonable
prospects of success. Additionally, the fact that the forklif t in question has a
superior design compared to forklifts previously reviewed by the Courts is, in my
opinion, a compelling reason to grant leave to appeal. Accordingly, leave to appeal
is granted.
[13] It was submitted on behalf of the applicant that leave to appeal should be
granted to the Supreme Court of Appeal. The motivation related to the novelty
concerning the design features of the forklift in question, and it was argued that a
full court might find itself in the same position as this Court, since the body of
precedent relates to forklifts that are not comparable to the present one. It was
argued that because of the general applicability of the issue involved, a decision by
the Supreme Court of Appeal is required.
5 Vogel at 5C.
6 Mutual and Federal Insurance Co Ltd v Day 2001 (3) SA 775 (SCA) at para [18 ].
[14] There is merit in the applicant’s argu ment, and it is therefore directed that
the Supreme Court of Appeal will hear the appeal.
Order
[15] In the result, the following order shall issue:
15.1 The application for leave to appeal is granted to the Supreme Court of
Appeal,
15.2 The costs shall be the costs in the appeal.
_____________________________
LG NUKU
JUDGE OF THE HIGH COURT
Appearances
For applicant: HJO (Wallis) Roux
Instructed by: A Batchelor and Associates, Cape Town
For respondent: C Thomas
Instructed by: State Attorney, Cape Town.