THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO: 19/05
In the matter between :
ROAD ACCIDENT FUND Appellant
and
ERIKA VAN DEN BERG Respondent
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Before: SCOTT, STREICHER & PONNAN JJA
Heard: 3 NOVEMBER 2005
Delivered: 16 NOVEMBER 2005
Summary: Road Accident Fund Act 56 of 1996 - me aning of ' motor vehicle' −
'designed ... for propulsion ... on a road' to be determined
objectively − gener al use be ing made of vehic le a relevant
consideration − Hamm GRW 18 pneumatic tyre roller found to be a
motor vehicle as defined
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J U D G M E N T
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STREICHER JA
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STREICHER JA:
[1] Does a Hamm GRW 18 pneumatic tyre roller (‘a PTR’) qualify as
a ‘motor vehicle’ as defined in s 1 of the Road Accident Fund Act 56 of
1996 (‘the Act’). That is the question to be decided in this appeal.
[2] The respondent insti tuted action in t he High Court, Johannesburg
(‘the court a quo’) against the Road Accident Fund, the appellant, for the
payment of damages suffe red by her and her two minor sons when her
husband and the father of her m inor children died as a result of injuries
suffered by him when he was involv ed in a collision with a PTR. Th e
appellant, in a speci al plea, al leged that a PTR d oes not fall within the
definition of a m otor vehicle in s 1 of the Act and claimed that th e
respondent’s claim should be dism issed for t hat reason. The court a quo,
having rul ed that this issue should be determ ined first, held that a PTR
does fall within the definition but grante d leave to the appellant to appeal
to this court.
[3] The definition of ‘motor vehicle’ in s 1 of the Act reads as follows:
‘”motor vehicle” means any vehicle designed or adapted for propulsion or haulage on
a road by m eans of fuel, gas or electri city, including a tra iler, a caravan, a n
agricultural or any other im plement designed or adapted to be drawn by such m otor
vehicle’.
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[4] The PTR is depicted below.
The vehicle is approxim ately 2 m eters wide, 4,7 m eters long and 3,3
meters high. Its basic weight is 13,8 tons but it may carry ballast of up t o
28 tons. It is fitte d with a three speed gearb ox, pneumatic tyres,
headlights, rear lights, parking light s, hazard lights, a rotating beacon, a
hooter, two side view mirrors, direction indicators and reflectors. It has a
footbrake similar to those found in trucks, a hand brake and an emergency
handbrake. It is powered by a four cylinder turbo diesel engine commonly
used in trucks and has power steeri ng. It has a facility to reduce the
pressure in its tyres.
[5] It is comm on cause that the PTR was designed fo r propulsion by
means of fuel. What is i n disput e is w hether it was so designed for
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propulsion on a road. In Road Accident Fund v Mbendera [2004] 4 All
SA 25 (SCA) para [11] to [13] it was held that ‘road’ in the definition
should not be interpreted to be a public road as was held in Mutual and
Federal Insurance Co Ltd v Day 2001 (3) SA 775 (SCA) para [13] and
[16] and Road Accident Fund v Vogel 2004 (5) SA 1 (SCA) para [5] , in
which the nature of the road referred to was not of critical im portance, as
was the case in Mbendera.
[6] The test to determ ine wh ether a vehicle was designed for
propulsion on a road as required by the definition is an objective one. 1 In
Chauke v Santam Ltd 1997 (1) SA 178 (A) at 183B-C Olivier JA said:
‘The word “designed” in the presen t context conveys the notion of the
ordinary, everyday and general purpose for which the vehicle in question w as
conceived and constructed and how the reas onable person would see its ordinary, and
not some fanciful, use on a road. If the or dinary, reasonable person w ould perceive
that the driving of the vehi cle 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.’
[7] In Vogel2 Marais JA said that Olivie r JA posited both a subjective
and an objective test. He added:
‘To say that the word “ conveys the ordinary, everyday and general pu rpose
for which the vehicle was conceived and constructed” (his emphasis) is to postu late a
1 Vogel at para [12].
2 Para [10].
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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.’
I disagree with this interpretation of the passage referred to. Olivier JA
made it cl ear that he was of the vi ew that ‘an objective, comm on sense
meaning’ shoul d be applied t o the phrase ‘designed for’. When he
immediately thereafter said that th e word ‘designed’ in the present
context conveys the notion of t he ordinary, everyday and general purpose
for which the vehicle in questi on was conceived and cons tructed, he was
in m y view, referring to the genera l 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 t hat it was not designe d to be used for other
purposes as well. If one of those othe r purposes it was de signed for is to
travel on a road it falls within the definition and qualifies as a m otor
vehicle as defined.3
[9] Only one witness, one Harvey , who was called by the respondent,
testified at the trial. He is a mech anical engineer who had been involved
in the construction i ndustry for approx imately 28 years. At present he is
employed by a company which markets and sells constructi on vehicles
and equipment including Hamm PTR’s. According to his evidence, which
is not disputed by the appellant, anot her general use to which the PTR is
3 See Chauke at 182 E-J and Vogel para [8].
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put is to travel on public roads from one construction site to another. He
mentioned as an exam ple the Maput o Corridor Project which comprised
the rehabilitation of pieces of a road 550 kilometre long. For this purpose
the project was split into 21 se parate contracts. Equipment such as a PT R
would have been taken to the constr uction sites on a trailer but once there
it would have travelled on the public roa d from one point where it was
needed to another. In doi ng so it w ould have covered distances of up to
10 kilometres at a time. It would have done so on a regular basis, two or
three times a week. At times it may have been escorted by a bakkie. On a
60 kilometre road contract the position would, according to Harvey, be no
different. Harvey’s undispute d evidence was, therefore, that the PTR is
generally used to travel on public roads from one construction site to
another.
[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 roa d.
However, the purposes for which the PTR is generally used ar e
objectively determ inable and is a f act that cannot be ignored when
attempting to objectively determ ine th e use for which it had been
designed.
[11] It is the de sign of the PTR that makes it possible for the vehicl e to
be used as aforesaid. It is fitted w ith all the parapherna lia required to be
fitted to a m otorcar so as to enable it to be used with safety on a public
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road, such as headlamps, direction i ndicators, brake lights and rear view
mirrors. These featu res may of course also be required for its prim ary
purpose of compacting but that is in my view an irrelevant consideration.
The third gear, which enab les the PTR to travel at a m aximum speed of
20 kilometres per hour and the facility to reduce the tyre pressure from 7
bar required for com pacting to 2 ba r are not required for co mpacting
purposes but for t ravelling on roads to and from the site where
compacting is required.
[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.
In this regard he relied on Chauke at 183B-C and Vogel at 4H. In Chauke,
at the place cited, Olivier JA said:
‘If the ordinary, reasonable person w ould perceive that the driving of the
vehicle in question on a ro ad and by pedestrians and other vehicles would be
extraordinarily difficult and hazardo us unless special precautions or adaptation were
effected, the vehicle would not be regarded as a ‘motor vehicle’ for the purposes of
the Act.’
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[13] The judge a quo hel d that the driving of the PTR on stretches of
public road between construction sites cannot be regarded as
‘extraordinarily difficult and hazar dous unless special precautions or
adaptations were eff ected’. I agree a nd shall deal with each of the three
reasons advanced in turn.
[14] I accept that a vehicle travelling at a speed of 20 km per hour m ay
under certain circumstances constitute a greater danger on the road than a
vehicle traveling at a higher speed. I do not, however, think that an
objective observer would perceive the danger to be of such m agnitude
that he would concl ude that the vehicle was not designed for use on a
road. Vehicles do from time to time travel at speeds of 20 km per hour or
less and all reasonable dri vers of m otor vehicles are awar e of that fact.
The PTR is a large vehicle and shoul d be clearly visible to ot her users of
the road especially if the rotating beacon is used, as it shoul d be, if
required by the particular circumstances.
[15] It was never suggest ed to Harv ey that the PTR was m ore likely t o
skid than an ordinary m otor vehicl e with treaded tyres and no basis for
the submission is to be found in th e evidence. Being fitted with 8 wheels
there is in m y view no reason t o believe that the PTR would be prone to
skidding.
[16] Harvey did testify t hat it is highli ghted in the operator’s manual
that when ‘ballasted’ to the full the centre of gravity of the PTR ‘is quite
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high and you have to be careful of th e cross slopes’ as there is a danger
that it may tip over. That is not, how ever, to say that there is any danger
that it would tip over on a public road and there was no suggestion t hat
this has ever occurred.
[17] In the light of the fact that th e PTR is in fact generally used for
travelling on a publi c road from one construction site to another and that
its design is such that it can safely be done, I am of the vi ew that one
cannot but conclude that it was designed for that purpose, whatever other
purposes it may have been designed for.
[18] The appeal is dismissed with costs.
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STREICHER JA
SCOTT JA)
PONNAN JA) CONCUR