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Last Updated: 3 December 2005
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
________________________________________________________________________
Before: SCOTT, STREICHER & PONNAN JJA
Heard: 3 NOVEMBER 2005
Delivered: 16 NOVEMBER 2005
Summary: Road Accident Fund Act 56 of 1996 - meaning of 'motor vehicle' − 'designed ... for propulsion ... on a road' to be determined objectively − general use being made of vehicle a relevant consideration − Hamm GRW 18 pneumatic tyre roller found to be a motor vehicle as defined
________________________________________________________________________
J U D G M E N T
________________________________________________________________________
STREICHER JA
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 instituted
action in the High Court, Johannesburg (‘the court a quo’) against
the Road Accident Fund,
the appellant, for the payment of damages suffered by
her and her two minor sons when her husband and the father of her minor children
died as a result of injuries suffered by him when he was involved in a collision
with a PTR. The appellant, in a special plea, alleged
that a PTR does not fall
within the definition of a motor vehicle in s 1 of the Act and claimed that the
respondent’s claim
should be dismissed for that reason. The court a quo,
having ruled that this issue should be determined first, held that a PTR does
fall within the definition but granted 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 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’.
[4] The PTR is depicted below.
[image edited out by
SAFLII]
The vehicle is approximately 2 meters wide, 4,7 meters long and 3,3
meters high. Its basic weight is 13,8 tons but it may carry ballast
of up to 28
tons. It is fitted with a three speed gearbox, pneumatic tyres, headlights, rear
lights, parking lights, 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
steering. It has a facility to reduce the pressure in its tyres.
[5] It is
common cause that the PTR was designed for propulsion by means of fuel. What is
in dispute is whether it was so designed
for 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 importance, as was the case in Mbendera.
[6] The test to
determine whether 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 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.’
[7] In Vogel[2]
Marais JA said that Olivier JA posited both a subjective and an objective test.
He added:
‘To say that the word “conveys the ordinary,
everyday and general purpose for which the vehicle was conceived and
constructed” (his 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.’
I
disagree with this interpretation of the passage referred to. 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 constructed, he was in my
view, referring to the general 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 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.[3]
[9] Only one witness,
one Harvey, who was called by the respondent, testified at the trial. He is a
mechanical engineer who had been
involved in the construction industry for
approximately 28 years. At present he is employed by a company which markets and
sells
construction vehicles and equipment including Hamm PTR’s. According
to his evidence, which is not disputed by the appellant,
another general use to
which the PTR is put is to travel on public roads from one construction site to
another. He mentioned as an
example the Maputo Corridor Project which comprised
the rehabilitation of pieces of a road 550 kilometre long. For this purpose the
project was split into 21 separate contracts. Equipment such as a PTR would have
been taken to the construction sites on a trailer
but once there it would have
travelled on the public road from one point where it was needed to another. In
doing so it would 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 undisputed 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 road. However, the purposes for which the PTR is generally
used are objectively determinable and is a fact that cannot
be ignored when
attempting to objectively determine the use for which it had been
designed.
[11] It is the design of the PTR that makes it possible for the
vehicle to be used as aforesaid. It is fitted with all the paraphernalia
required to be fitted to a motorcar so as to enable it to be used with safety on
a public road, such as headlamps, direction indicators,
brake lights and rear
view mirrors. These features may of course also be required for its primary
purpose of compacting but that
is in my view an irrelevant consideration. The
third gear, which enables the PTR to travel at a maximum speed of 20 kilometres
per
hour and the facility to reduce the tyre pressure from 7 bar required for
compacting to 2 bar are not required for compacting purposes
but for travelling
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 would perceive that the
driving of the vehicle in question on a road and 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.’
[13] The
judge a quo held that the driving of the PTR on stretches of public road between
construction sites cannot be regarded as
‘extraordinarily difficult and
hazardous unless special precautions or adaptations were effected’. I
agree and 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 may 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 magnitude that he would conclude 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 drivers of motor vehicles
are aware of that fact. The PTR is a large
vehicle and should be clearly visible
to other users of the road especially if the rotating beacon is used, as it
should be, if required
by the particular circumstances.
[15] It was never
suggested to Harvey that the PTR was more likely to skid than an ordinary motor
vehicle with treaded tyres and no
basis for the submission is to be found in the
evidence. Being fitted with 8 wheels there is in my view no reason to believe
that
the PTR would be prone to skidding.
[16] Harvey did testify that it is
highlighted in the operator’s manual that when ‘ballasted’ to
the full the centre
of gravity of the PTR ‘is quite high and you have to
be careful of the cross slopes’ as there is a danger that it may
tip over.
That is not, however, to say that there is any danger that it would tip over on
a public road and there was no suggestion
that this has ever
occurred.
[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.
[18] The appeal is dismissed with
costs.
________________
STREICHER JA
SCOTT JA)
PONNAN JA) CONCUR
[1] Vogel at para
[12].
[2] Para
[10].
[3] See Chauke at 182
E-J and Vogel para [8].
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