Published Date: July 18, 2020

On 22 June 2020, the Supreme Court of Appeal not only delivered an interesting judgement for the legal fraternity but brought a widow one step closer to finally realising justice after 10 years.

The judgement is crucial for litigators because the matter deals with a fairly regular and familiar issue, concerning a motor vehicle qualifying for RAF Act. This determination is critical because, if it does not qualify as a ‘motor vehicle’ for the purposes of the Act, the claimant has no claim against the RAF. This issue is bound to arise from time to time.

Many of these cases end up reaching the Supreme Court of Appeal and over the years, the courts have developed tests and the relevant enquiries to determine whether a certain mode of transport is deemed to be a vehicle within the bounds of the RAF Act, given the occurrence of technological advancements in this area. To avoid massive cost implications, litigators should be able to tell from the onset whether a mode of transport is likely to qualify as a motor vehicle in terms of the Act or not. Due to the frequency of such cases, it is worthwhile inspecting the recent matter of Mbhele.

Summary of the facts

The accident occurred on 20 February 2010 when the deceased, Mr. Makutoana, who was a pedestrian at the time, collided with a large industrial vehicle – a Stack Reacher. The accident occurred at the Cape Town Harbour Multipurpose Terminal, where the deceased was employed as a stevedore. The deceased’s common law wife, Mrs. Mbhele, proceeded to institute legal action in the Western Cape against the RAF, seeking loss of support payment for herself and their four minor children.

The RAF denied liability on the basis that the Stack Reacher was not a motor vehicle as defined in Section 1 of the RAF Act. The issues were then separated in terms of Rule 33(4) of the Court Uniform Rules, when the parties agreed that the court should first determine whether the mode of transport concerned qualified as a vehicle.

In the first instance, the court found that the Stack Reacher did not qualify as a motor vehicle in terms of the RAF Act. Mrs. Mbhele then took the matter on appeal to the full bench, which overturned the decision, finding the Stack Reacher to be a motor vehicle in terms of the Act. Dissatisfied by this outcome, the RAF then took the matter to the Supreme Court of Appeal which confirmed the full bench’s decision.

Determination process

As stated above, the determination of whether a mode of transport qualifies as a motor vehicle in terms of the RAF Act, is significant because if it does not qualify, then there is no claim against the RAF. In the Mbhele case, the court relied heavily upon the already established principles of determination. These principles included:

  • The natural use of the vehicle and the type of road/surface it is naturally adapted to drive on.
  • The size, height, width, and length of the vehicle (11.5m, without the boom).
  • The submission of the witness expert (the reputable accident reconstructionist, Mr. Barry Grobbelaar).
  • The design and features of the vehicle: engine size; number of wheels; whether the vehicle is fitted with full road-going lighting; high beam lights and low beam headlights; tail lights; indicators; brake lights; reverse lights and position lights; windscreen wipers and washers; a hooter and a handbrake.
  • The speed of the Stack Reacher (which is 24.5km/h unloaded, and 22km/h loaded) and the fact that it is fitted with a four-speed automatic gearbox with four forward and four reverse gears.
  • The fact that the said vehicle was registered for use on the public road; had a registration number and was fitted with a Scania six cylinder, four-stroke diesel engine with a 12-litre capacity.

Moreover, the court considered the fact that the Stack Reacher is propelled by means of the diesel fuel and the evidence was that it transported containers on roads within the ports’ premises. The road was not an issue in this matter because the issue of what qualifies as a ‘road’ for the purposes of the RAF Act was long buried in 2004 with the matter of Mbendera. The court took into account the convincing evidence of the accident reconstructionist, considered all the aforementioned factors, including images of the Stack Reacher, juxtaposing these against the definition of the RAF Act.

The court concluded that the Stack Reacher could indeed be classed as a motor vehicle as defined by the RAF Act. In reaching this conclusion, the court stated that despite it imposing and gigantic size in terms of mass and the speed limitation, objectively viewed, it cannot be said that the driving of this vehicle on the road used by pedestrians and other vehicles, would be extraordinarily hazardous and difficult.

A significant judgement

The judgement is significant for litigators as it provides further details and considerations in determining what qualifies as a motor vehicle. Furthermore, this outcome by the Supreme Court of Appeal means that Mrs. Mbhele is now left with only one hurdle in her claim i.e. the quantification of her claim. It may have been more than 10 years since the demise of her husband, but fortunately, the difficult part of her claiming process is now behind her.

As stated above, such cases be likely be a familiar occurrence in the future as different vehicles are invented, modified, and improved on a regular basis. Although the RAF should continue contesting what qualifies as a ‘vehicle’ in future (where they genuinely believe such contests are necessary), they should take cognisance of the wide interpretation of the definition of the motor vehicle in the Act.