THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 555/19

In the matter between:
THE ROAD ACCIDENT FUND

APPELLANT
and
THANDISWA LINAH MBELE

RESPONDENT
(In her personal capacity and on
behalf of her four minor children)
Neutral citation:
The Road Accident Fund v Mbele (555/19) [2020] ZASCA 72
(22 June 2020)
Coram:
MAYA P and ZONDI, PLASKET and NICHOLLS JJA and EKSTEEN
AJA
Heard:
No oral hearing in terms of s 19(a) of the Superior Courts Act 10 of

2013
Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time
for hand-down is deemed to be 10h00 on 22 June 2020.
Summary: Motor vehicle accidents – claim for damages under Road Accident
Fund Act 56 of 1996 – whether a Reach Stacker is a ‘motor vehicle’ as defined in
the Road Accident Fund Act – purposes for which vehicle is generally used ought
to be taken into account in determining objectively the use for which it had been
designed – Reach Stacker found to be a motor vehicle as defined.

ORDER

On appeal from: Western Cape Division of the High Court (Gamble, Le Grange
JJ and Sievers AJ, sitting as court of appeal):
The appeal is dismissed with costs including the costs of two counsel where
employed.

JUDGMENT

Zondi JA (Maya P and Plasket and Nicholls JJA and Eksteen AJA concurring)
[1] The issue in this appeal is whether a large industrial vehicle called a Reach
Stacker is a motor vehicle as contemplated in s 1 of the Road Accident Fund Act
56 of 1996 (RAF Act). A photograph of this vehicle is attached to this judgment as
annexure ‘A’. The appellant, the Road Accident Fund (RAF), contended that a
Reach Stacker is not a motor vehicle and that the respondent’s claim was not
competent in terms of the RAF Act. The precise nature of a Reach Stacker is
important because it determines the competence of a claim under the RAF Act by
a person who alleges that he or she has suffered damage or loss resulting from a
collision with a Reach Stacker. The full bench of the Western Cape Division of the
High Court (high court), reversing the decision of the court of first instance, held
that a Reach Stacker is a motor vehicle as contemplated in s 1 of the RAF Act.

[2] The issue arose in the following circumstances. On 20 February 2010
Mr Simphiwe Robert Makutoana (the deceased) was a pedestrian at the
Multipurpose Terminal, Cape Town Harbour, where he was employed as a
stevedore when a Reach Stacker operated by one Mr Eugene Andrea collided with
him. The deceased died as a result of the injuries he sustained in the collision. The
respondent, Ms Thandiswa Linah Mbele, the deceased’s common law wife,
instituted action for loss of support in the high court against the RAF for the
payment of damages she and her four minor children suffered as a result of the

death of the deceased. Ms Mbele’s claim against the RAF for loss of support was
based on the provisions of the RAF Act.

[3] The RAF disputed liability and alleged, among others, that the Reach
Stacker was not a motor vehicle as defined in the RAF Act, thereby asserting that
Ms Mbele did not have a claim under the Act. By agreement between the parties
the high court made an order in terms of rule 33(4) of the Uniform Rules of Court
that the question whether the Reach Stacker was a motor vehicle as defined in the
RAF Act be adjudicated first, and that all other issues be postponed for later
determination.

[4] In the event, the trial proceeded before Desai J, who after hearing evidence
on the separated issue, determined that the Reach Stacker was not a motor
vehicle as contemplated in the RAF Act and dismissed Ms Mbele’s claim. Ms
Mbele, with leave granted by Desai J, appealed to the full bench of the same
Division. The full bench (Gamble, Le Grange JJ and Sievers AJ concurring) upheld
the appeal. It found that the Reach Stacker concerned was a motor vehicle as
contemplated in s 1 of the RAF Act. The full bench accordingly set aside the order
made by Desai J and ordered the RAF to pay Ms Mbele’s costs, including the
qualifying expenses of her expert witness, Mr Barry Grobbelaar. The appeal, with
the special leave of this Court, is against this finding. The parties agreed to have it
determined without an oral hearing in terms of s 19(a) of the Superior Courts Act
10 of 2013.

[5] As I have already stated, the issue is whether the Reach Stacker is a motor
vehicle as defined in s 1 of the RAF Act. This section defines a ‘motor vehicle’ as
‘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’. The definition
displays three requirements before a vehicle qualifies as a motor vehicle for
purposes of the RAF Act. The vehicle (a) must be propelled by fuel, electricity or

gas and (b) must be designed for propulsion (c) on a road. Such a vehicle includes
a trailer, caravan or implements designed to be drawn by a motor vehicle as
defined.

The design of a Reach Stacker
[6] The Reach Stacker under consideration was designed primarily for lifting,
manoeuvring and stacking containers in the container yards of small terminals or
medium sized ports. It is able to transport containers for short distances relatively
quickly and stack them. It is able to operate in tight spaces. For this purpose, the
Reach Stacker is equipped with a boom capable of being extended and raised
hydraulically. The boom is mounted on a chassis. The vehicle has six wheels. The
four front wheels (two left and two right) are driven by the engine and the machine
is steered by means of its rear wheels (one left and one right). It is the latter that
provides the manoeuvrability in tight spaces. It is fitted with rear-view mirrors.

[7] This specific Reach Stacker is equipped with full road-going lighting,
including high beam and low beam headlights, tail lights, indicators, brake lights,
reverse lights and position lights. It is furthermore fitted with windscreen wipers
and washers, a hooter and a handbrake. The overall length of the Reach Stacker
(without the boom) is 11.5m. The height and width of the reach stacker are
indicated in the specifications as being 4.5m and 4.15m, respectively. Its service
weight is 71 800kg.

[8] The Reach Stacker has no suspension system between the wheels and the
body. Suspension is only provided by the spring characteristics of the pneumatic
tyres. The top speed of the Reach Stacker is 24.5km/h when it is unloaded, and
22km/h at the rated load. It is fitted with a four speed automatic gearbox with four
forward and four reverse gears. The Reach Stacker is registered for use on public
roads and has the registration number CA825213. It is fitted with a Scania six
cylinder, four-stroke diesel engine with a 12 litre capacity. The power and torque

ratings of the engine are provided as being 243kW at 2 100rpm and 1 589Nm at
1 400rpm.

[9] It is clear from its features that the Reach Stacker is propelled by means of
diesel fuel and the evidence was that it transported containers on roads within the
port premises. This Court in Road Accident Fund v Mbendera 2004 (4) All SA 25
(SCA) (para13) held that the word ‘road’ in s 1 of the RAF Act is not limited to a
public road. To that extent the Reach Stacker meets two of the requirements of the
definition section, that is, ‘propulsion by diesel on a road’. The question is whether
the fact that it was designed primarily for use in container yards and to load
containers onto ships, off load them and stack them, disqualifies it from being a
‘motor vehicle’ as contemplated in the RAF Act. Put differently, the question is
whether the Reach Stacker was designed for or adapted for propulsion or haulage
on a road.

Whether the Reach Stacker was designed for or adapted for propulsion or
haulage on a road
[10] The meaning of the words ‘motor vehicle’ appearing in s 1 of the RAF Act
has received judicial attention in cases such as Chauke v Santam Limited 1997 (1)
SA 178 (SCA); [1997] 4 All SA 59 (A); Road Accident Fund v Mbendera, supra;
Mutual and Federal Insurance Co Ltd v Day 2001 (3) SA 775 (SCA); [2001] 4 All
SA 6 (A); Road Accident Fund v Vogel 2004 (5) SA 1 (SCA); Road Accident Fund
v Van den Berg 2006 (2) SA 250 (SCA); and Bell v Road Accident Fund 2007 (6)
SA 48 (SCA).

[11] This Court in Chauke, which concerned whether a forklift is a motor vehicle,
set out the test to be applied in determining whether a vehicle is a motor vehicle
as defined in the RAF Act as follows (at 183A-D):
‘The correct approach to the interpretation of the legislative phrase quoted above is to take
it 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. If so adapted such vehicle would fall within
the ambit of the definition not by virtue of being intended for use on a road but because it
had been adapted for such use.’

[12] The test whether a vehicle is designed for use on a road is objective. The
question is whether a reasonable person viewing the vehicle in question would
come to the conclusion that such vehicle when used on a road will not create a
danger to other road users. In this regard, design features such as lights,
indicators, field of vision, hooter, maximum speed and engine output are all
considerations which apply in deciding whether or not there is compliance with the
definition.

[13] Courts have not been consistent in their application and interpretation of the
Chauke test. Chauke concerned a ‘Clark forklift’. The forklift in question had neither
lights nor indicators. It did not have a hooter. It had a top speed of 8km/h. It was
not used on a road. It was used in and out of the warehouse and in the yard. The
evidence established that it operated in a restricted area and under limited
conditions. The forklift drivers were not allowed to drive out of the premises. It could
not be registered in terms of the statutory licensing rules unless modified.

[14] In Day, a ‘Komatsu forklift’ was not held to be a motor vehicle as it posed a
hazard to other road users and steering it in traffic was considered extraordinarily
difficult and hazardous.

[15] In Bell, a ‘flatbed transporter’ operating on the airside area of the airport was
held to be a motor vehicle. It was used at the airport to ‘transport baggage and

cargo from its place of origin within the confines of the terminal, to next to an
aircraft, on the airside of the airport’.1

[16] In Vogel, Marais JA pointed out that it was clear from this Court’s
interpretation of s 1 of the RAF Act that 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; and in general parlance, a public road. . .  [and] 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
The learned judge emphasised that the appropriate test is whether general use on
public roads is contemplated. He went on to state:
‘[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
[Chauke at 183C]. (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

1 Bell para 6.
2 Vogel paras 3-4.

vehicle as defined. In short, such latter use need not be the only or even the primary use
for which it was designed.’3

[17] Marais JA doubted the soundness of the suggestion in Chauke that the
words ‘designed for’ have a less subjective connotation than the words ‘intended
for’. He stated at para 10:
‘Indeed, when Olivier JA ultimately formulated his own interpretation [Chauke at 183B] 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.’ Footnotes omitted.

[18] In Van den Berg, Streicher JA rejected Marais JA’s interpretation of the
Chauke test. He stated at para 7 that:
‘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
construed, he was, in my view, referring to the general purpose for which the vehicle,
objectively determined, was conceived and construed.’

[19] Streicher JA went on to say at paras 8 and 17:
‘[8]
It is common cause that the PTR [pneumatic tyre roller] 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.’
‘[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.’

3 Day para 14.

[20] The full bench in this matter, applying the reasoning in Van den Berg, held
at para 29 that ‘it is clear that the Reach Stacker was designed and equipped to
be self- propelled around the harbour along roads and over areas such as parking
and storage lots adjacent thereto, in the ordinary course of its work. The fact that
it may need to be escorted along certain of those routes does not. . . detract from
the fact that this is part and parcel of its everyday work, just as an. . . electrical
transformer, would similarly be required to be escorted along a public road due to
the fact that it exceeds the permissible width for travel without an escort.’

[21] The appellant attacked the reasoning of the full bench on two grounds. First,
that it erred in its application of the law by relying upon the findings in Van den
Berg in its judgment. The appellant argued that Van den Berg was distinguishable
from Chauke. The argument was that when Streicher JA in Van den Berg applied
the reasonable person test, he did so from the point of view that the PTR was
designed for road use, and the only design limitation, being the maximum speed,
did not constitute a danger of such magnitude so as to ‘conclude that the vehicle
was not designed for use on a road’.

[22] For this reason, so it was argued, Streicher JA did not have to fully apply
the second leg of the Chauke test to all the design features and limitations of PTR,
that is, determining whether a reasonable person would perceive the vehicle’s
‘ordinary use’ on a road as ‘extraordinarily difficult and hazardous’. This was
because, the argument proceeded, the evidence showed that the PTR had been
designed for propulsion on the road, and safely so, whether for compacting road
surfaces or travelling between construction sites.

[23] Secondly, it was submitted by the appellant that the full bench erred in its
application of the test enunciated in Chauke in its determination of the features,
purpose and intended use of the Reach Stacker. The appellant argued that in
relying on Van den Berg the full bench ignored the fact that the design features
and limitations of the vehicles were distinguishable between Chauke and Van den

Berg. Further, in Van den Berg the court did not consider the second leg of the
Chauke test, that is, the ‘ordinary use’ as perceived by a reasonable person,
because the court, at the outset, had determined that the PTR had been designed
to travel on roads, and safely so, from the time it was ‘conceived and constructed.’
It was accordingly submitted by the appellant that had the full bench properly
applied the Chauke test to the vehicle under consideration, as was applied in Day
and Vogel, it should have found that the ‘ordinary, everyday and general purpose’
of the Reach Stacker and its ‘ordinary use’ on the road, did not render it a ‘motor
vehicle’ in terms of RAF Act.

[24] The criticism of the full bench’s reasoning is unjustified. The full bench made
it clear in para 33 of its judgment that ‘[o]bjectively viewed, the designers of the
Reach Stacker would have contemplated that it would be required to be propelled
along such roads in the harbour.’ It reached this conclusion after analysing
evidence regarding the Reach Stacker’s area of operation as well as its design
features. The intended utility of the Reach Stacker is wholly different to the vehicle
in Day, a Clark forklift, and Vogel, a mobile Hobart ground power unit, whose
primary function was to supply power to stationary aircraft. The vehicle under
consideration is designed and suitable for travelling on a road within the port. This
Court in Mbendera (para14) made it clear that the purposes of forklifts, cranes,
lawnmowers and mobile power units are very different.

[25] In my view, the Reach Stacker under consideration is a motor vehicle as
defined in s 1 of the RAF Act. Despite its imposing and gigantic size in terms of
mass (71.8 tons), width (4.15m), length (11.5m), height (4.5m) and speed limitation
of 24km/h, objectively viewed, it cannot be said that its driving on a road used by
pedestrians and other vehicles would be extraordinarily difficult and hazardous. It
is fitted with all the controls and features required to be fitted to a motor vehicle so
as to enable it to be used with safety on a road outside the container yard and port
terminal where it primarily operates.

[26] It has a number of features of a motor vehicle mentioned above and is
driven in a manner similar to a motor vehicle. Mr Harry Sonnie, the RAF’s expert
witness, conceded that the Reach Stacker has been adapted for use on a road. It
is apparent that certain features of the Reach Stacker such as its huge size,
pneumatic tyres, four wheels at the front and a steering axle at the back, are there
in order to enable it to perform its primary function of lifting heavy cargo containers
including manoeuvring in very tight spaces. Its other features, such as its maximum
speed of 24km/h, driving lights, indicators, windscreen wipers and a hooter enable
it to be used with safety on a public road when it travels from port to port to either
load or transport containers.

[27] Moreover, because of its operation on Transnet premises, the Reach
Stacker was required to be registered and was registered for use on public roads
in terms of the National Road Traffic Act. Mr Grobbelaar, the respondent’s expert
witness explained that that was so ‘because there is other traffic on the road when
it travels between two ports, it’s on a road where there’s other public traffic’. Mr
Sonnie’s contrary version that the Reach Stacker was registered ‘solely for
Bidvest’s identification’ as in general Reach Stackers are not required to have a
roadworthy certificate, but only a load test one as they are built for the purpose of
lifting cargo, cannot be correct. The reasons advanced by Mr Grobbelaar appear
to me to be so compelling that I have no hesitation in accepting them. The
probabilities are that the Reach Stacker was registered because of the nature of
the area and the surroundings in which it operated.

[28] It was Grobbelaar’s evidence that the use of the vehicle under consideration
is not hazardous ‘if it’s used the way it’s supposed to be used and. . . driven [the]
way it’s supposed to be driven’ and he added that ‘when it travels within the
confines of … where the incident happened and where there is that road, there it
travels on its own, and when it travels from where it’s stored to where it works. But
if it were to go outside that environment, it would have to have escort vehicles at
the front and the back to take it, and it does, it does travel.’ When asked why it

would travel outside of the confined area, Mr Grobbelaar responded ‘[t]o take it to
a different section in the harbour’. As regards the layout of the road of the scene
of the incident, Mr Grobbelaar testified, based on the observation he made when
he visited the scene, that the road used by the Reach Stackers to travel from one
container yard to the other is ‘a normal road between [the] buildings with a centre
line, a broken centre line, and which carries traffic in both directions’ and that they
use ‘a two-way road, where there’s also other traffic, to convey these containers.’
I did not understand Mr Sonnie to be disputing this evidence.

[29] In the result the appeal is dismissed with costs including costs of two
counsel where employed.

_________________
ZONDI JA
JUDGE OF APPEAL

Appearances:

For appellant:
R Jaga SC (with him D Pillay)
Instructed by:
Mayats Attorneys, Claremont
c/o Symington De Kock Attorneys, Bloemfontein

For respondent:
R van Rooyen SC (with him E Benade and N Mashava)

Instructed by:
DSC Attorneys, Cape Town
c/o Rosendorff, Reitz & Barry Attorneys, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

22 June 2020

STATUS

Immediate

The Road Accident Fund v Mbele (Case no 555/2019) [2020] ZASCA 72 (22 June 2020)
Please note that the media summary is intended for the benefit of the media and does not form part of
the judgment of the Supreme Court of Appeal.
Today the Supreme Court of Appeal (the SCA) dismissed the appeal by the appellant, the Road
Accident Fund (the RAF), against the decision of the Western Cape Division of the High Court (the high
court).
Mr Simphiwe Robert Makutoana (the deceased) was a pedestrian at the Multipurpose Terminal, Cape
Town Harbour when a large industrial vehicle Reach Stacker collided with him. The deceased died as
a result of the injuries he sustained in the collision. The respondent, Ms Thandiswa Linah Mbele, the
deceased’s common law wife, instituted action for loss of support in the high court against the RAF for
the payment of damages she and her four minor children suffered as a result of the death of the
deceased. Ms Mbele’s claim against the RAF for loss of support was based on the provisions of the
Road Accident Fund Act 56 of 1996 (the RAF Act). The RAF defended the action and contended that
Ms Mbele’s claim was incompetent as a Reach Stacker was not a motor vehicle as contemplated in s
1 of the RAF Act. The issue in this appeal therefore is whether the Reach Stacker is a motor vehicle as
contemplated in s 1 of the RAF Act.
The SCA held that the definition of a motor vehicle in terms of the RAF Act displays three requirements:
(a) the vehicle must be propelled by fuel, electricity or gas and (b) must be designed for propulsion (c)
on a road. Regarding the first requirement, the SCA held that it was clear from its features that the
Reach Stacker was propelled by means of diesel fuel; and the evidence was that it transported
containers on roads within the port premises.
The SCA held that the test whether a vehicle is designed for use on a road is objective. The question
is whether a reasonable person viewing the vehicle in question would come to the conclusion that such
vehicle when used on a road will not create a danger to other road users. In this regard, design features
such as lights, indicators, field of vision, hooter, maximum speed and engine output are all
considerations which apply in deciding whether or not there is compliance with the definition.
The SCA held that, regarding the second and third requirement, despite its imposing and gigantic size
in terms of mass, width, length, height and low speed limitation, objectively viewed, it cannot be said
that driving the Reach Stacker on a road used by pedestrians and other vehicles would be
extraordinarily difficult and hazardous. This is on the basis that it was fitted with all the controls and
features required to be fitted to a motor vehicle so as to enable it to be used with safety on a road
outside the container yard and port terminal where it primarily operates. It also had a number of features
of a motor vehicle and was driven in a manner similar to a motor vehicle. Moreover, because of its
operation on terminal premises, the Reach Stacker was required to be registered and was registered
for use on public roads in terms of road traffic legislation.

In the circumstances, the SCA held that the Reach Stacker was a motor vehicle as defined in s 1 of the
RAF Act, and the appeal was accordingly dismissed.