ROAD ACCIDENT FUND TRIVIA: WHAT IS A MOTOR VEHICLE?

It sounds obvious enough, but the first thing that a potential RAF claimant must prove is that he / she was involved in a motor vehicle collision (failing which he / she cannot successfully claim from the RAF). Section 3 of the Act that guides the Fund expressly and unequivocally states that the objective of the Fund is to compensate victims of motor vehicle collisions. So what do the courts regard as fitting the description: “motor vehicle”?

Section 1 of the Act is the point of departure and it 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, an agricultural or any other implement designed or adapted to be drawn by such motor vehicle.” As broad as this definition is, courts are, from time to time, called upon to adjudicate on whether a vehicle qualifies as a motor vehicle for the purposes of the Act. This can, to a certain degree, be attributed to ever-introduced inventions, developments and technical advancements etc, most of which the legislature could not have foreseen during the implementation of the Act.

The courts have previously been called on to decide whether shuttles; Golf Cars; Caterpillar 769 trucks; mobile Hobart ground power unist; flatbed transporters; folks lifts; and Hamm 18 pneumatic tyre rollers (PTRs) are motor vehicles. In determining whether or not a ‘vehicle’ qualifies as a motor vehicle, courts seem to be more inclined to adopt a broad interpretation of the definition and generally commence by construing a “motor vehicle” definition, then defining the key words of the definition, and thereafter considering and applying tests that have been developed over the years.

In Berry, D C and Another vs SPE Security Patrol Experts and RAF, the court held that a Golf Cart is a motor vehicle. In RAF vs Mbendera and Others, the SCA held that a Caterpillar 769 is also a motor vehicle as defined by the Act.

The issue In Vogel vs RAF, was whether the Hobart ground power unit, which supplies electricity to jumbo jet aircraft, was a motor vehicle. The High Court found that it did qualify. But on appeal by the RAF, the SCA overturned the High Court’s decision.

In Chauke vs Santam, the Plaintiff was injured by a forklift while walking and he instituted action against Santam in the Magistrate Court. The Defendant successfully raised a Special Plea that the forklift is not a motor vehicle in terms of the Motor Vehicles Accidents Act. The Plaintiff subsequently appealed unsuccessfully to the Witwatersrand Local Division of the Supreme Court and later, to the SCA. In RAF vs Van Den Berg, the issue was whether a PTR qualified as a motor vehicle and the SCA held that it did.

The determination of whether something qualifies as a “motor vehicle” in terms of the Act is then largely based on the court’s interpretation of “motor vehicle” definition – key words of the definition, interpreted against the vehicle’s features, what the vehicle is able to do and an expert witness’s description of the vehicle. Courts have developed tests, whereby they look at the features of the motor vehicle in question, its intended use, where it is intended to be used, etc. Further, courts have developed approaches to apply in such cases and an objective approach i.e. a reasonable man approach and “common sense approach” are ostensibly preferred by courts. The court would, therefore, ask whether a reasonable man would see or think that a vehicle in question is a motor vehicle. In addition to this, courts ordinarily call an expert (someone who has a superior knowledge of the motor vehicle concerned) to provide necessary evidence about the vehicle. For example, in Santam, Mr Bhayla, who was a foreman at Santam was called to provide a thorough description of the forklift, how it operated and provided court with several photographs of the concerned forklift.

In Berry, Mr Johnson, who was a director at E-Z-Go (from where the Plaintiffs had hired a Golf Car) was called to give evidence about the Golf Cars. The courts consider the presence or lack thereof, of features, like petrol driven engine, steering wheel, headlights, rear lights, pedals, forward and reverse gears, side and rear mirrors, safety belts, whether a vehicle is inherently unsafe or could be unsafe, speed limit, gearbox, direction indicators, type and make of tyres, hooter, the size of the vehicle, etc. The presence of most of these features would ordinarily suggest that a vehicle concerned is a motor vehicle.

In addition to features, courts consider the purpose of the motor vehicle, where it is intended to be used and whether it would be expected to be seen on public roads. For example, in Berry’s case, the court considered that a Golf Car is ordinarily used at airports, holiday resorts, hospitals, residential estates, and is used for moving people on road surfaces. In Mbendera, the court considered that a truck was intended to be used in the mining and construction industry, to travel on roads and haul loads. In Santam, in concluding that a forklift is not a motor vehicle, the court considered that a forklift is used for lifting, conveying and depositing heavy loads, it is not used on public roads and it lacks various common motor vehicle features. And in Van Den Berg, the court in concluding that a PTR qualifies as a motor vehicle, it considered the presence of various features; it being designed for propulsion by means of fuel; intended to be used in construction of roads, etc.

From the case law jurisprudence, it is clear that each vehicle needs to be considered on its own i.e. features, purpose, place/area where the vehicle is intended to be used, etc.

Considering that the features, purpose and intended use play a pivotal role in the determination of whether a vehicle is a motor vehicle or not, it may well be that a certain model of a vehicle is disqualified but another model of that same vehicle (e.g. forklift) is qualified – depending on the presence or lack thereof, of certain features, safety for use on public roads, etc.

It would certainly be interesting to see more cases of this nature, particularly in light of the developments and inventions of vehicles for use in various industries.

MTHO MAPHUMULO

Associate
Litigation Attorney

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