Reportable
Case No: 278/99
In the matter between:
MUTUAL AND FEDERAL INSURANCE COMPANY                APPELLANT
LIMITED
and
FAITH DAY
RESPONDENT

Coram:
Marais, Navsa and Mpati JJA
Date of hearing:
27 February 2001
Date of delivery:    26 March 2001
Summary:
MVA -  whether a forklift with certain features is a motor vehicle as defined in
Article 1  of the Agreement Establishing a Multilateral Motor Vehicle Accidents
Fund  given the force of law in terms of s 2 of the Multilateral Motor Vehicle
Accidents Fund Act 93 of 1989.

NAVSA JA:
[1] This is an appeal against a judgment of the Full Bench of the Eastern Cape
Division of the High Court (“the Full Bench”) reported as Mutual and Federal
Insurance CO LTD v Day 1999(4) SA 813(E).  The only issue is whether a forklift
involved in a collision giving rise to the present appeal is a motor vehicle as defined in
Article 1  of the Agreement Establishing a Multilateral Motor Vehicle Accidents Fund
(“the Agreement”) given the force of law in terms of s 2 of the Multilateral Motor
Vehicle Accidents Fund Act 93 of 1989.  The forklift in question is a Komatsu model
FD60 to which I will refer as “the Komatsu”.
The background
[2] The respondent sued the appellant, an appointed agent in terms of the
Agreement, for compensation for damages suffered as a result of bodily injuries
sustained in consequence of a collision which occurred on 4 February 1993 in Byron
Road, Kensington, Port Elizabeth.   In her particulars of claim the respondent asserts
that the Komatsu  collided with a parked motor vehicle which in turn collided with her
at a time when she was a pedestrian.  The respondent claims that the collision was
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Agreement.  If either contention is correct, the appellant cannot be held liable for such
damages as may have been suffered by the respondent.
[3] At the commencement of proceedings in the South Eastern Cape Local Division
of the High Court the parties agreed that Jennett J should at that stage decide only
whether the Komatsu was a motor vehicle as defined in Article 1 of the Agreement.
The learned judge who heard evidence on this aspect decided the question in favour
of the respondent.  The appellant appealed unsuccessfully against that decision to the
Full Bench.  Leave to appeal to this Court was sought and granted.
The definition  in Article 1 of the Agreement and the decision in  Chauke  v
Santam Limited 1997(1)SA 178(AD)
[4] The following is the applicable definition:
“ ‘ Motor vehicle’ means any vehicle designed or adapted for propulsion
or haulage on a road by means of fuel, gas or electricity and includes a
trailer, a caravan, an agricultural or any other implement designed or
adapted to be drawn by such motor vehicle.”
[5] In the Chauke case, supra, this court considered whether a Clark model
forklift with certain features fell within the definition.  In that case as in the present one
the question of the forklift being adapted did not arise. The words “designed for”

At 181 G-H the Court said the following about the connotation of these words:
“... connotes the idea of a mental plan, the established form of a product,
and the general idea of its purpose...”

At 183 A-C the Court stated:
“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”
[6] In the Chauke case at 181 I-J Olivier JA  had regard to section 253(1) of the
English Road Traffic Act 1960 which provides:
“In this Act ‘motor vehicle’ means a mechanically propelled vehicle
intended or adapted for use on roads...”

At 182 F-I  the learned judge of appeal considered a dictum from the English case of
Burns v Currel [1963] 2 All ER 297 (QB) part of which reads as follows:
“The real question is: is some general use on the roads contemplated as
one of the users? (my underlining).  Approaching the matter in that way
at the end of the case, the Justices would have to ask themselves: has it
been proved beyond a reasonable doubt that any reasonable person
looking at the Go-Kart would say that one of its uses would be use on
the road?” (per Lord Parker CJ at 300 E-F of the judgment in the Burns
case.)
In the Burns case section 253(1) of the English Road Traffic act was being
considered.
At 182 J-183 A of the Chauke case Olivier JA went on to state:
“Not only do I, respectfully, agree with the approach of Lord Parker, but
would add that the same reasoning should apply, in my view, to the even
more objective definition in the South African legislation under
discussion: a fortiori - just because a vehicle can be used on a road by
no means implies that it was ‘designed for propulsion on a road’.”

[7] At 183 D-F of the Chauke case the features of the Clark model forklift were

speed of 8 kmph.  A hoist for lifting weights positioned on the forklift substantially
obstructed the view of the driver when it was not in use.  There were no brake lights.
It was steered by its rear wheels.  The Court considered that the forklift was used in
and out of a warehouse and in a yard.  It was not used on the road.  After a
consideration of these factors the Court in the Chauke case concluded as follows at
183 I-J:
“Applying the test discussed above it is clear that the forklift under
discussion cannot fairly be defined as a motor vehicle for the purposes
of the Act: its use on a road would be regarded as extraordinary and in
fact as hazardous, and clearly, even in daytime, not an activity for which
it was designed.  Apart from its low speed and the driver’s limited view,
the driver cannot warn following traffic of his intention to turn or slow
down or stop, the device not being fitted with appropriate indicators or
lights.  Furthermore, it would not be possible to use the vehicle after dark
as it has no headlights.  That it may be required to cross a road, for
example between warehouses(an example used by counsel for the
appellant), does not detract from the conclusion reached above.  Such
use surely would be unusual;  and the appropriate test is whether a
general use on the road is contemplated...”

[8] The  Komatsu  has a number of features that the forklift in Chauke’s case did
not have.  It has headlights with a bright and dim facility, a hooter, indicators and brake
lights.  It is equipped with reflectors, two rear view mirrors and can, as an option, be
fitted with a windscreen.  It has pneumatic tyres which aid suspension and it has better
wheel clearance. The Komatsu has a top speed of 32 kmph. It also has improved
forward vision when compared to the forklift in the Chauke case.  However, it must
be said that a photograph produced at the trial shows that its mast still provides a
substantial obstruction to a driver’s forward vision.
[9] There was uncontested evidence that the Komatsu often travelled on public
roads  close to the yard in which it was principally employed. It was used to lift and
shift loads in a yard some 2-3 hectares in extent.  It also travelled distances(unloaded)
on  public roads to reach places where it was to serve its primary purpose, namely
lifting and moving goods.  In order to reach a venue at which maintenance operations
were performed on it the Komatsu travelled a distance of some 8 kilometers.
[10] The Komatsu’s size, steering mechanism and a counterweight attached to its
rear are important features which require further and careful consideration
In this

with expertise in vehicle design, deserves attention.  Grobbelaar testified in support of
the appellant’s case.
[11] The Komatsu is a larger forklift than the one in the Chauke case.  It has the
ability to lift 6 tons and therefore has a sizeable counterweight.  Like the forklift in the
Chauke case the Komatsu has a rear wheel steering system.  This, according to
Grobbelaar,  makes steering it a  difficult task.  It is common cause that there is no
other vehicle in use on public roads which has rear wheel steering.  Rear wheel steering
has the effect of swinging the rear of the vehicle outwards in a direction opposite to
the one in which it is being steered.   This is a phenomenon known as over-steering.
Grobbelaar was adamant that sudden steering movements could lead to a loss of
control with the probability that the Komatsu would capsize.  He stated that this could
occur even at a speed of 20 kmph. Grobbelaar testified that in the event of a sudden
steering movement on a public road to avoid other vehicles or pedestrians the
counterweight added to the risk of the vehicle capsizing.  He repeatedly stated that a
skilled driver could not necessarily avoid such a consequence.  Grobbelaar accepted
that when the Komatsu was serving its primary purpose other forklifts and vehicles

given its size it could be assumed that in serving its primary purpose the Komatsu
would be employed in extensive areas such as timber mills or wharves.  He was
adamant that such an environment was very different to conditions that would be
encountered on a public road.  The essence of Grobbelaar’s evidence is that the
steering mechanism and counterweight are design limitations that render the Komatsu
hazardous for general use on public roads.
[12] Mr Clarke(“Clarke”) an engineer who testified in support of the respondent’s
case conceded that the design of the vehicle was such that over-steering was a
problem but offered the simplistic and rather unpersuasive argument that he
experienced no problem driving his motor vehicle in reverse.  Clarke did not drive the
Komatsu. Grobbelaar drove it and completed his expert report after doing so.  In my
view it is quite clear that Grobbelaar was the more impressive and more technically
skilled witness in respect of the design characteristics of the Komatsu.
[13] Before us counsel for the parties were agreed that the Komatsu had superior
design features when compared to the forklift in the Chauke case.  They were also
agreed that this did not necessarily mean that the vehicle was designed for use on a

primary purpose.  It was agreed that the Komatsu’s primary purpose was to lift and
move loads in places such as storage and lumbar yards, steel mills and wharves.  It
was also accepted that features such as headlights and a windscreen enhanced the
vehicle for its primary purpose.  For example, headlights may be used at night time in
a particular location or even during the day in large dark storage sheds. A windscreen
is useful in inclement weather.  It should also be borne in mind that Regulation 436 of
the Road Traffic Regulations promulgated in terms of Act 29 of 1989 prohibits the
night time use on public roads of all forklifts.
[14] The fact that the Komatsu has a primary purpose does not mean that it could
not have been designed for a secondary purpose such as for use on public roads
thereby falling within the definition under consideration. It is clear that this was not a
limitation sought to be imposed by the judgment in the Chauke case.
[15] It is significant that there is no reference, either in the Komatsu’s operating
manuals or in promotional material, to its public road use or capability.  There is
reference in the manuals to it being transported from venue to venue by way of a low-
bed trailer.

CONCLUSIONS
[16] It was submitted on behalf of the respondent, with reference to the Burns case,
supra, that the use to which the Komatsu was put is a relevant consideration.  In
Chauke’s case at 182J it was clearly stated that just because a vehicle can be used on
a public road does not mean that it was “designed” for propulsion on a road.  In
Matsiba v Santam Versekeringsmaatskappy 1997 (4) SA  832 (SCA) at 834 H,
Marais JA, in considering whether a type of lawnmower was a vehicle within the
definition presently under consideration, stated:
“Dat dit moontlik is om hierdie grassnyer op ‘n pad te bestuur, is nie
deurslaggewend nie.”
The question remains: was the Komatsu “designed” for use on a public road?
[17] Both the trial court and the Full Bench thought it significant that regulation 436
of the Road Traffic regulations provides for the use of forklifts on public roads.
Before us it was submitted on behalf of the respondent that regulation 436 bolstered
the respondent’s case.  At 819 D - 819 F of the judgment of the Full Bench the
following appears:

Traffic Regulations shows that not only does the Komatsu comply with
those requirements but it in fact has features that are not required in terms
of the regulations which improve its suitability for use on a road.  In this
case the fact is not merely that the Komatsu ‘can be used on a road’.
The various features referred to above, all part of its original design,
show that it is because of its design, show that it is because of its design
that it is suitable for propulsion on a road.  There is nothing fanciful in the
idea that a manufacturer may design a forklift which would be suitable to
move from one workplace to another along a road in order to eliminate
the necessity of having it transported by other means.”
[18] Regulation 436 exempts forklifts and other specialised equipment such as
mobile cranes, straddle trucks, drilling and roadmaking machines from some of the
standard requirements for other vehicles.  It provides, however, that such exempted
vehicles should have certain minimum features in order to qualify for operation on
public roads.  It does not follow that a forklift with these minimum features is a motor
vehicle within the meaning of the definition under consideration.  The expert witnesses
for both parties testified that as far as they knew all forklifts have rear wheel steering.
It is, however, conceivable that in a particular case a forklift owner, designer or
manufacturer may be able to persuade a Court that the kind of steering problem

to the definition under consideration.
[19] I agree with the submission on behalf of the appellant that the trial court and the
Full Bench unjustifiably paid little or no attention to the safety concerns raised by
Grobbelaar.  In his judgment  Jennett J deals cursorily with Grobbelaar’s misgivings
about the forward view afforded to a driver of the Komatsu.  Insofar as the hazards
of driving the Komatsu is concerned the learned Judge said the following (at p10):
“ I do not perceive anything in the driving thereof on roads as
‘extraordinarily difficult and hazardous’.”
In the judgment of the Full Bench, Liebenberg J did not refer to Grobbelaar’s evidence
relating to the Komatsu’s steering difficulties and its inherent design limitations.
[20] Applying the test set out in Chauke’s case it appears to me to be clear that the
Komatsu cannot be defined as a motor vehicle within the definition under
consideration.  The Komatsu poses a hazard to other road users and steering it in
traffic, confronted with the emergencies that commonly arise on public roads,  as
distinct from steering it within its accepted field of operation, should, in my view, be
considered extraordinarily difficult and hazardous.  Whilst this conclusion may appear

was not without other remedies and could have chosen to sue the local authority which
owns the Komatsu or could have joined it in the action against the appellant.
[21] It follows that in my view the appeal should be upheld.  I make the following
order:
1.
The appeal is upheld with costs including the costs of the application for special
leave to appeal to this court.
2.
The order of the Full Bench is set aside and for it is substituted the following:
2.1
The appeal succeeds with costs; including the costs of the application for leave
to appeal.
2.2
The order of the Trial Court is set aside and the following is substituted:
2.2.1 The forklift vehicle in the present case, registration number CB 234 050, is not
a “motor vehicle” as defined in Article 1of the Agreement Establishing a Multilateral
Motor Vehicle Accidents Fund  given the force of law in terms of s2 of the Multilateral
Motor Vehicle Accidents Fund Act 93 of 1989;

2.2.2 The plaintiff is to pay the defendant’s costs including the qualifying expenses
of Mr Grobbelaar and the pre - trial inspection in loco.

M S NAVSA
JUDGE OF APPEAL
CONCUR
MARAIS JA
MPATI JA