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Last Updated: 11 August 2004
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 113/03
In the matter between :
ROAD ACCIDENT FUND Appellant
and
DAVID VOGEL Respondent
___________________________________________________________________________
Coram: MARAIS JA, JONES et VAN HEERDEN AJJA
Heard: 23 February 2004
Delivered: 11 March 2004
Mobile ground power unit providing electric power to stationary aircraft at airports –
not a motor vehicle as defined in s 1 of Road Accident Fund Act 56 of 1996.
__________________________________________________________________________
J U D G M E N T
___________________________________________________________________________
MARAIS JA/
MARAIS JA:
[1] This appeal raises again the question
whether a particular item is a motor vehicle as defined in s 1 of the Road
Accident Fund
Act 56 of 1996 (‘the Act’). The item is a mobile
Hobart ground power unit (‘the unit’). After agreeing to
consider
separately in terms of Rule 33(4) certain issues, and after hearing evidence and
argument, the Court a quo made orders declaring, first, that the unit is
a motor vehicle in terms of s 1 of the Act, and secondly, that the collision in
which
it was involved was caused by the sole and exclusive negligence of one
Botes. Leave to appeal against both orders was refused by
the Court a quo
(Daniels J) but leave to appeal against only the first of the declaratory orders
was granted by this Court.
[2] Section 1 of the Act provides that
–
‘“Motor vehicle” means 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.’
[3] The interpretation to be given to this definition has
been laid down in a number of cases heard by this Court. These propositions
can
be extracted from them. First, 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; in general parlance, a public
road.[1]
[4] Secondly, 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]
[5] The word
‘designed’ in its context means that the enquiry is what ‘the
ordinary, everyday and general purpose
for which the [item] in question was
conceived and constructed and how the reasonable person would see its ordinary,
and not some
fanciful, use on a
road’.[3] The appropriate test
is whether a general use on public roads is
contemplated.[4]
[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.[5] (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.[6]
[9] I must, with
respect, confess to being unconvinced about the soundness of the suggestion in
this Court’s judgment in Chauke that the words ‘designed
for’ have a less subjective connotation than the words ‘intended
for’. The equating
of the words ‘intended for’ with words such
as ‘reasonably suitable for’ or ‘reasonably apt for’
by
Salmon J in Daley and Others v
Hargreaves[7] seems to me,
again with respect, to be unfounded when viewed purely as a matter of the
correct use of language. ‘Intended for’,
to my mind, plainly conveys
the subjective intention of a human agency; ‘suitable for’ or
‘apt for’, on the
other hand, is a purely objective criterion which
has nothing to do with the subjective intention of the manufacturer of the
article
under consideration, save to the extent that it may provide evidence of
that intention in cases in which it has not been clearly
expressed. The
statutory context in which words such as ‘intended for’ or
‘designed for’ are used may of
course show that, unhappy or
inappropriate though the legislature’s choice of words may have been, they
must be taken to mean
something different from what, divorced from their
context, they would mean.
[10] Indeed, when Olivier JA ultimately formulated
his own interpretation[8] 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.
[11] The
irreconcilability of the two concepts is, I think, more apparent than real.
Various possibilities can arise. The manufacturer
of the item under
consideration may not have designed it to be used generally on ordinary public
roads at all; yet it may, objectively
regarded, be eminently suitable for that
purpose. If so, it seems unlikely that parliament would not have wanted to
provide the public
with a remedy against the Road Accident Fund if it was
negligently so used and caused injury. At the other end of the spectrum, and
probably extremely unlikely to occur in practice, is an item which was designed
by the manufacturer for general use on ordinary roads,
but which an objective
appraisal of its suitability for that purpose shows that the manufacturer has
failed to achieve the result
intended. If such a unit is negligently operated on
a road and injures a third party, it seems equally unlikely that parliament
would
have wanted the third party to have recourse against the Road Accident
Fund.
[12] The net result, so it seems to me, is that while the legislature
has not entirely ignored the subjective intention 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.
Whatever
reservations I may have about some of the reasoning of Olivier JA, they do not
detract from the soundness of the test which
he ultimately
articulated.
[13] I turn to the application of these considerations to the
unit. It is called by its manufacturer the Hobart Ground Power unit.
According
to the manufacturer’s promotional brochure it manufactures ‘welding
systems, aircraft ground power equipment
and industrial battery chargers’.
Its Motor Generator Division is ‘the world’s largest producer of
commercial aircraft
ground power equipment, providing 80 to 90% of all
commercial airline requirements’. In 1969 it ‘(a)nnounced first
ground
power equipment for servicing first of the jumbo jets, the Boeing
747’ and described it as ‘(a) ground power unit (which)
supplies
electricity to the plane while it is on the ground’.
[14] The parts
catalogue issued by the manufacturer (Cummins) of the diesel engine which
provides the means of propulsion of the unit
lists in separate columns in the
case of each component part the field of application of the engine. The columns
are headed ‘automotive’,
‘off-highway’,
‘construction and industrial’ and ‘industrial power’.
There are 35 pages which
bear these column headings. An ‘x’ has been
used to indicate what the field of application of the relevant parts listed
on
the page is. On 24 out of 35 pages an ‘x’ has been placed next to
the heading ‘off-highway’. It was argued
by counsel for the
appellant that this was significant and showed that use on a highway was not
intended. I shall return to that
submission in due course.
[15] Photographs
of the unit in its original designed
state[9] show it to be a large and
lengthy box-like metal structure on four pneumatic tyres. In virtually the
middle of the left side of the
structure provision is made to seat the operator
of the unit in such a manner that he or she is seated on the left hand side of
the
structure facing forwards in the direction in which the unit would move if
it were to travel anywhere. There is no enclosed cabin
for the operator; he or
she is exposed to the elements of nature.
[16] The unit is equipped with a
four cylinder diesel engine and a three speed gear box with a reverse gear. It
has a conventional
rack and pinion steering mechanism and a conventional
steering wheel, the shaft of which is almost vertical. There are left and right
turning indicators at both the front and the back of the unit. There are also
broad yellow and black striped chevrons which extend
over the full width of the
unit at both the front and back.
[17] Its lighting system comprises two
headlights which may be dimmed or brightened, reflectors at the front, rear and
sides of the
unit, and brake lights. In its original designed state it had no
windscreen but for use in South Africa a cab with a windscreen,
side windows,
and window wiper was fitted.[10] It
is not entirely clear whether this was done by the manufacturer at the
purchaser’s request or by the purchaser itself after
delivery of the unit.
The top speed of the unit was between 40-60 kph. The operator’s view in
the unit’s originally designed
state was unobstructed. The addition of the
cab resulted in minor impairment of the view on the right hand side of the
unit.
[18] It has no speedometer and no safety belt. It has a hooter. Its
turning arc is restricted but comparable to that of a motor vehicle
of
equivalent size. It is said to steer and handle like a Land Rover. It was not
equipped with rear and side view mirrors in its
original designed state but in
South Africa the standard procedure was to have them fitted to the unit. As it
happened, this particular
unit no longer had its mirrors at the time of the
incident giving rise to the litigation but nothing turns on that.
[19] There
is no provision for the conveyance of passengers or anything else but it is
fitted with a tow bar. Its ground clearance
is 300mm which is comparable to that
of a light delivery vehicle. It has no tendency to oversteer or understeer and
its weight is
evenly distributed.
[20] The location of the gear lever is
unlike that which is ordinarily found in motor vehicles designed for general use
on public
roads. It is situated between the driver’s legs.
[21] The
Court a quo concluded that the primary function or purpose for which the
unit was designed was to supply power to stationary aircraft at airports.
Indeed, the learned judge aptly described it as ‘a mobile power
plant’. Although he did not say so in terms, it appears
that he considered
general use on a road of the kind envisaged in the definition to have been
either an integral component of the
primary design objective or at least a
secondary design objective in the sense contemplated in the previous decisions
of this Court.
In my view, he erred.
[22] The basic approach of the Court
a quo was that the unit had to be capable of self-propulsion if it was to
serve its principal purpose. Moreover, it would have to be capable
of being
driven along the roads customarily to be found on airport aprons with relative
safety to its operator and to other users
of the roads. Daniels J concluded that
the unit was ‘as a probability’ so designed. It is not clear whether
he also thought
it to have been designed to be capable of being driven on public
roads other than the roads to be found at airports in similar
safety.
[23] The argument that the ‘off-highway’ designations in
the parts catalogue referred to in para [14] above show that
the unit was not
designed for use on a highway is, to my mind, unsound. First, this is not the
designation of the manufacturer of
the unit; it is that of the manufacturer of
the diesel engine which powers the unit and relates solely to the engine and its
parts.
Secondly, there is no reason to believe that the designations are
intended to tell a purchaser of the engine or spare part what it
may not be used
for; they are intended to convey the manifold uses to which the engine and its
parts may be put. Automotive is one
of them.
[24] It seems to me to be
abundantly clear that this unit was not designed by its manufacturer for
propulsion or haulage on a road
of the kind envisaged by the definition in s 1
of the Act. Its ungainly proportions and appearance; the absence of provision
for
conveying anything other than its operator and (if it can be regarded as
conveyance, which I doubt) the power unit which is an integral
part of it; the
absence of a speedometer, windscreen, mirrors, safety belt, or protection
against the elements for the operator;
the inconvenient and unconventional
location of its gear lever; the low speeds of which it is capable and, above
all, its sole raison d’etre, namely, the provision of electrical
power to stationary aircraft at airports, make it impossible to conclude that it
was designed
for general use on public roads other than those which would be
encountered within the operational area of airports.
[25] The existence of
some features which are common to motor vehicles properly so called takes the
matter no further. They were obviously
required if the unit was to fulfil its
function as a mobile power plant and be able to traverse terrain upon which
people, aircraft,
equipment and vehicles would be encountered. It does not
follow that they were provided to enable the unit to be used on public roads
other than the roads to be found within the operational area of
airports.
[26] The additions to the unit which were made or commissioned by
its owner cannot alter the fact that the maker of the unit did not
design it for
propulsion or haulage on a road of the kind contemplated by the definition. Nor
can it be said to have been ‘adapted’
for that purpose. Those
additions were obviously to protect the operator from the elements. As soon as a
cab was fitted the partial
impediments to rearward visibility which it would
create rendered it desirable that side view mirrors be fitted. These limited
adaptations
to the original design of the unit can hardly be regarded as
sufficient to convert a unit which was not designed for the purposes
set forth
in the definition in s 1 into one which, by virtue of the adaptation, is
thenceforth to be regarded as having been successfully
adapted for such
purposes.
[27] The fact that this unit was in fact driven on a few occasions
from one airport to another along public roads proves no more than
that it was
possible to use its automotive power to travel relatively long distances but
such use of the unit was not, in my opinion,
‘the ordinary, everyday and
general purpose for which the [unit] was conceived and constructed’ [or
adapted], or a use
which the reasonable person would see as ‘ordinary and
not fanciful’.
[28] Not only is this a case in which the manufacturer
did not subjectively design the unit for the purposes set forth in s 1; it
is a
case where, even if it had purported to do so, the application of the objective
test of whether the unit, objectively regarded,
was reasonably suitable for such
purposes would have caused it to fail in its attempt.
[29] In the event of
the appeal succeeding, counsel for the appellant asked for the costs of two
counsel. There is, in my opinion,
not sufficient justification for such an
order. The principles applicable to a determination of the issue have been
settled in previous
decisions of this Court. The factual enquiry involved was
neither lengthy nor complex.
[30] The appeal is upheld with costs. The order
of the Court a quo dismissing the special plea is set aside and
substituted by an order upholding the special plea and dismissing the
plaintiff’s
claim with costs.
_____________________
R M MARAIS
JUDGE OF
APPEAL
JONES AJA )
VAN HEERDEN AJA )
CONCUR
“A”
“B”
[1] Chauke v Santam Ltd 1997
(1) SA 178 (A) at 181F-G.
[2]
Matsiba v Santam Versekeringsmaatskappy Bpk 1997 (4) SA 832 (SCA) at
834H; Chauke at 182J -
183A.
[3] Chauke at
183B-C.
[4] Chauke at
184B.
[5] Chauke at
183C.
[6] Mutual and Federal
Insurance Co Ltd v Day 2001 (3) SA 775 (SCA) para
[14].
[7] [1961] All ER 552
(QB).
[8] Chauke at
183B.
[9] A photograph marked
“A” is annexed to this
judgment.
[10] A photograph
marked “B” is annexed to this judgment.
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