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Last Updated: 4 September 2004
THE SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
CASE NO: 209/03
In the matter between
ROAD ACCIDENT FUND Appellant
and
S MBENDERA
First Respondent
JK MOTSWAPULENG
Second Respondent
TROLLOPE MINING SERVICES
Third Respondent
CORAM: HARMS, LEWIS JJA and PATEL
AJA
HEARD: 7 May
2004
DELIVERED: 17 May
2004
Summary: A truck designed and suitable for use on
haul roads is a motor vehicle as defined by s 1 of the Road Accident Fund Act 56
of 1998.
JUDGMENT
CH LEWIS JA
[1] The question
to be determined in this appeal is whether a Caterpillar 769 truck is to be
regarded as a motor vehicle for the purpose
of the Road Accident Fund Act 56 of
1996. If it is then the first respondent will be entitled to sue the Road
Accident Fund for damages
suffered by her, and her children, as a result of the
death of her husband in a collision between the truck and a taxi in which the
deceased had been a passenger.
[2] The second respondent was the driver
of the truck when the collision occurred and it was alleged that it was solely
through his
negligence that the deceased was killed. The third respondent was
the latter’s employer. The action was brought against the
RAF and the
other respondents, each of whom pleaded that the others were liable. The trial
court (Botha J in the Pretoria High Court),
at the request of the parties, ruled
that the question whether the truck was a motor vehicle for the purposes of the
Act would be
adjudicated separately in terms of Uniform rule 33(4). The trial
court found for the plaintiff that the truck was a motor vehicle
for the purpose
of the Act. It is against this finding that the appeal lies with the leave of
that court.
[3] The definition of a motor vehicle in the Act –
‘any vehicle designed or adapted for propulsion or haulage on a road
by
means of fuel, gas or electricity . . .’. – has been fertile ground
for litigation, as were the definitions in the
previous statutes that dealt with
the question of compulsory third-party insurance. A brief account of the
legislative history of
compulsory motor vehicle insurance is set out in
Chauke v Santam Ltd 1997 (1) SA 178 (A).
[4] In
Chauke the court was required to determine whether a forklift was a motor
vehicle for the purpose of the Act. Olivier JA stated the test
to be applied as
follows (at 183A-D):
‘The correct approach . . . is to take [the
definition] 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.’
[5] The soundness of this dictum was questioned by this court
recently in Road Accident Fund v Vogel (as yet unreported, case 113/03,
handed down on 11 March 2004, paras 10-12). The court in Vogel clarified
the apparent conflict between the ‘subjective test’ posed (the
purpose for which the vehicle was conceived
and constructed) and the
‘objective test’ (the reasonable person’s perception of the
vehicle) by stating that ‘while
the legislature has not entirely ignored
the subjective test of the designer, it is not per se conclusive and the
item’s objective suitability for use in the manner contemplated by s 1 is
to be the ultimate touchstone.’
[6] The balance between the
subjective view of the designer, and the suitability of the vehicle for general
use on roads, is not,
however, the principal issue in this appeal. The
appellant argues that on any basis the truck is not a motor vehicle designed for
use on a public road. It does not argue that the truck is not a vehicle
as normally understood; such an argument would not be tenable, given that
the
truck is designed and used precisely for travelling on roads (albeit of a
special nature), and transporting large quantities
of rubble and materials
mined. The essence of the appellant’s argument is that the truck is not
suitable for use on public
or ‘ordinary’ roads. Before dealing with
that contention, however, I shall describe briefly various features of the
truck.
[7] It is, according to the manufacturer’s description, an
off-highway diesel-powered haul truck designed for use in the mining
and
construction industry. It is very large, being five metres wide, four metres
high, and weighing in the order of 68 tons. It is
too heavy and too wide for use
on typical roads: it is designed for use on specially prepared haul roads, on
which it can travel
at approximately 75 kilometres per hour. According to the
uncontested evidence of experts there is a large network of such roads
in South
Africa, especially for opencast mines, and these roads also carry other
vehicular and pedestrian traffic. The truck is fitted
with various safety
features indicative of design and suitability for use on roads that carry
traffic. It has direction indicators,
side and rear-view mirrors, brake lights,
reverse lights, parking lights and a hooter.
[8] It is common cause that
the truck is neither designed nor suitable for use on ordinary roads: it is
simply too large. It can in
fact be used on an ordinary road provided that the
road is wide enough. But it cannot safely be driven other than on haul
roads. (The collision which resulted in the death of the first
respondent’s husband occurred on
a public road, the driver allegedly
having taken the truck for his own purposes.) But does this preclude the
application of the Act?
[9] The appellant argues that the definition of
motor vehicle requires that it be intended and suitable for use on a
public road. Although the definition itself refers only to a road, the
word has in two recent cases been interpreted by this court to mean
a public
road. The appellant argues that it is also implicit in the decision of Olivier
JA in Chauke because the court referred there (at 182A-183A) to two
English cases which had held that, for the purpose of the Road and Rail Traffic
Act of 1933, and regulations thereunder, certain vehicles were not
‘intended’ (in the sense of being suitable or apt)
for use on roads.
In Daley & others v Hargreaves [1961] 1 All ER 552 (QB) the court was
asked to determine whether mechanically-propelled dumpers were motor vehicles.
And in Burns v Currell [1963] 2 All ER 297 (QB) the court dealt with the
same question in relation to a go-kart. In both cases the appellants had been
criminally
prosecuted for using the vehicles on ordinary roads. And in both the
courts found that there was insufficient evidence to prove beyond
a reasonable
doubt that the vehicles would be regarded by a reasonable person as fit for use
on a road. The relevant regulations
thus did not apply. The English cases do
not, in my view, support the proposition of the appellant: they do not deal with
the nature
of the road at all since the charges related to contraventions of the
statute and regulations in using unlicensed vehicles on particular
roads. And
the determinative principle was whether the vehicle was ‘intended or
adapted for use on roads’.
[10] The central principle discussed in
Chauke was whether the court must have regard to the designer’s
intention, or the objective suitability for driving on a road, in determining
whether a vehicle falls within the ambit of the Act. The court, as indicated
earlier, adopted a mixed formulation: the purpose for
which the vehicle was
conceived and constructed, on the one hand, and suitability for use on a road,
as perceived by the ordinary,
reasonable person on the other. (See also the
gloss added in RAF v Vogel, above). The nature of the road was not in
contention. The court was concerned merely to determine whether a forklift was
designed
and suitable for propulsion or haulage on a road. It decided that it
was not. In reaching that conclusion Olivier JA adopted the
definition of a road
in the Concise Oxford Dictionary (7 ed): ‘a line of communication,
especially a specially prepared track between places for use by pedestrians,
riders and vehicles’.
There is no suggestion in that case that a road must
be generally accessible to the public in order for a machine to qualify as a
motor vehicle.
[11] However this court in Mutual and Federal Insurance
Co Ltd v Day 2001 (3) SA 775 (SCA) did invoke the Chauke test with
reference to a ‘public road’ (paras 13 and 16) in determining
whether another type of forklift was a motor vehicle.
That it could be used on
public roads, said the court, purportedly following Chauke, did not mean
that it was suitable for such use (para 16). But the real issue in the
Day case too was the nature and purpose of the forklift. It was common
cause that its primary purpose was to ‘lift and move loads
in places such
as storage and lumbar yards, steel mills and wharves’. Unlike the truck
in this case, although it could and
did travel on roads, its purpose was not to
travel up and down them and it was not suitable for doing so. So too in
Prinsloo v Santam Insurance Ltd [1996] 3 All SA 221 (E), the court,
adopting a ‘down-to-earth common sense approach’ held that the
forklift is issue was
not a motor vehicle for the purpose of the Multilateral
Motor Vehicle Accidents Fund Act 93 of 1989. In reaching this conclusion
the
court had regard to the use to which a forklift is put – moving crates and
pallets loaded with goods in warehouses, and
at airports and stations. The
forklift in question was neither designed nor suitable for use on roads whether
public or private.
[12] In Road Accident Fund v Vogel (above) the
court referred repeatedly to use on a public road. But that case was also not
concerned with a vehicle designed and suitable
for travelling on roads of any
kind. The court held that a mobile ground power unit that provided electric
power to stationary aircraft
at airports was not a motor vehicle for the purpose
of the Act. Although it could be driven on a road, it was in general driven only
within operational areas of airports, specifically on the apron. The conclusion
of the court that the raison d’etre of the power unit – the
provision of electrical power to aircraft – made it impossible to conclude
that it was designed
for general use on ‘public roads’ (para 24) is
not in any way dependent on the nature of the road on which it was driven.
The
overriding consideration was the purpose of the unit, and its suitability for
travelling on a road.
[13] The truck in issue in this case is of a
different order. Its very purpose is to travel along specially constructed roads
carrying
loads. It is designed for that purpose and there is no suggestion at
all that it is unsuitable so to do. It is also constructed in
such a way that it
is safe for use on those roads when there is other traffic. That it is not safe
for use on a public road cannot be a determinative criterion as to
whether it is a motor vehicle for the purpose of the Act. It is designed and
suitable
for use on haul roads, and the Act applies throughout the Republic and
not just to vehicles used on public roads. As counsel for
the second and third
respondents contended, if a standard motor vehicle were to collide with another
and injure the driver or a passenger,
or to injure a pedestrian, on a haul road,
the injured party would be able to claim compensation under the Act. It would be
anomalous
to hold that where injuries were caused as a result of the negligence
of the driver of a truck of the kind in question, no action
would be available
to the injured party against the Fund.
[14] I accept the contention of
the second and third respondents that the court must adopt a common sense
approach in determining
whether a vehicle is a motor vehicle for the purpose of
the Act. The truck in issue looks like a motor vehicle, and its purpose is
to
travel on roads to haul loads. It is designed and suitable for that purpose. The
purposes of forklifts, cranes, lawnmowers and
mobile power units are very
different. That they can travel on a road is incidental to their
purpose.
[15] In my view, the truck is a motor vehicle as defined in the
Act.
[16] The appeal is dismissed with costs.
_____________
C H Lewis
Judge of Appeal
Concur:
Harms JA
Patel AJA
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