THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO:  209/03
Reportable
In the matter between
ROAD ACCIDENT FUND
Appellant
and
S MBENDERA                                                              First Respondent
JK MOTSWAPULENG                                           Second Respondent
TROLLOPE MINING SERVICES                           Third Respondent
CORAM:   HARMS, LEWIS JJA and PATEL AJA
HEARD:              7 May 2004
DELIVERED:    17 May 2004
Summary: A truck designed and suitable for use on haul roads is a motor vehicle as
defined by s 1 of the Road Accident Fund Act 56 of 1998.
JUDGMENT

CH LEWIS JA

[1] The question to be determined in this appeal is whether a
Caterpillar 769 truck is to be regarded as a motor vehicle for the
purpose of the Road Accident Fund Act 56 of 1996. If it is then the
first respondent will be entitled to sue the Road Accident Fund for
damages suffered by her, and her children, as a result of the death
of her husband in a collision between the truck and a taxi in which
the deceased had been a passenger.
[2] The second respondent was the driver of the truck when the
collision occurred and it was alleged that it was solely through his
negligence that the deceased was killed. The third respondent was
the latter’s employer. The action was brought against the RAF and
the other respondents, each of whom pleaded that the others were
liable. The trial court (Botha J in the Pretoria High Court), at the
request of the parties, ruled that the question whether the truck
was a motor vehicle for the purposes of the Act would be
adjudicated separately in terms of Uniform rule 33(4). The trial
court found for the plaintiff that the truck was a motor vehicle for
the purpose of the Act. It is against this finding that the appeal lies
with the leave of that court.

[3] The definition of a motor vehicle in the Act –  ‘any vehicle
designed or adapted for propulsion or haulage on a road by means
of fuel, gas or electricity . . .’. – has been fertile ground for
litigation, as were the definitions in the previous statutes that dealt
with the question of compulsory third-party insurance. A brief
account of the legislative history of compulsory motor vehicle
insurance is set out in Chauke v Santam Ltd 1997 (1) SA 178 (A).
[4] In Chauke the court was required to determine whether a
forklift was a motor vehicle for the purpose of the Act. Olivier JA
stated the test to be applied as follows (at 183A-D):
‘The correct approach . . . is to take [the definition] 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.’

[5] The soundness of this dictum was questioned by this court
recently in Road Accident Fund v Vogel (as yet unreported, case
113/03, handed down on 11 March 2004, paras 10-12). The court
in Vogel  clarified the apparent conflict between the ‘subjective
test’ posed (the purpose for which the vehicle was conceived and
constructed) and the ‘objective test’ (the reasonable person’s
perception of the vehicle) by stating that ‘while the legislature has
not entirely ignored the subjective test of the designer, it is not per
se conclusive and the item’s objective suitability for use in the
manner contemplated by s 1 is to be the ultimate touchstone.’
[6] The balance between the subjective view of the designer,
and the suitability of the vehicle for general use on roads, is not,
however, the principal issue in this appeal. The appellant argues
that on any basis the truck is not a motor vehicle designed for use
on a public road. It does not argue that the truck is not a vehicle as
normally understood; such an argument would not be tenable,
given that the truck is designed and used precisely for travelling on
roads (albeit of a special nature), and transporting large quantities
of rubble and materials mined. The essence of the appellant’s
argument is that the truck is not suitable for use on public or

‘ordinary’ roads. Before dealing with that contention, however, I
shall describe briefly various features of the truck.
[7] It is, according to the manufacturer’s description, an off-
highway diesel-powered haul truck designed for use in the mining
and construction industry. It is very large, being five metres wide,
four metres high, and weighing in the order of 68 tons. It is too
heavy and too wide for use on typical roads: it is designed for use
on specially prepared haul roads, on which it can travel at
approximately 75 kilometres per hour. According to the
uncontested evidence of experts there is a large network of such
roads in South Africa, especially for opencast mines, and these
roads also carry other vehicular and pedestrian traffic. The truck is
fitted with various safety features indicative of design and
suitability for use on roads that carry traffic. It has direction
indicators, side and rear-view mirrors, brake lights, reverse lights,
parking lights and a hooter.
[8] It is common cause that the truck is neither designed nor
suitable for use on ordinary roads: it is simply too large. It can in
fact be used on an ordinary road provided that the road is wide
enough. But it cannot safely be driven other than on haul roads.

(The collision which resulted in the death of the first respondent’s
husband occurred on a public road, the driver allegedly having
taken the truck for his own purposes.) But does this preclude the
application of the Act?
[9] The appellant argues that the definition of motor vehicle
requires that it be intended and suitable for use on a public road.
Although the definition itself refers only to a road, the word has in
two recent cases been interpreted by this court to mean a public
road. The appellant argues that it is also implicit in the decision of
Olivier JA in Chauke because the court referred there (at 182A-
183A) to two English cases which had held that, for the purpose of
the Road and Rail Traffic Act of 1933, and regulations thereunder,
certain vehicles were not ‘intended’ (in the sense of being suitable
or apt) for use on roads. In Daley & others v Hargreaves [1961] 1
All ER 552 (QB) the court was asked to determine whether
mechanically-propelled dumpers were motor vehicles. And in
Burns v Currell [1963] 2 All ER 297 (QB) the court dealt with the
same question in relation to a go-kart. In both cases the appellants
had been criminally prosecuted for using the vehicles on ordinary
roads. And in both the courts found that there was insufficient
evidence to prove beyond a reasonable doubt that the vehicles

would be regarded by a reasonable person as fit for use on a road.
The relevant regulations thus did not apply. The English cases do
not, in my view, support the proposition of the appellant: they do
not deal with the nature of the road at all since the charges related
to contraventions of the statute and regulations in using unlicensed
vehicles on particular roads. And the determinative principle was
whether the vehicle was ‘intended or adapted for use on roads’.
[10] The central principle discussed in Chauke was whether the
court must have regard to the designer’s intention, or the objective
suitability for driving on a road, in determining whether a vehicle
falls within the ambit of the Act. The court, as indicated earlier,
adopted a mixed formulation: the purpose for which the vehicle
was conceived and constructed, on the one hand, and suitability
for use on a road, as perceived by the ordinary, reasonable person
on the other. (See also the gloss added in RAF v Vogel, above).
The nature of the road was not in contention.  The court was
concerned merely to determine whether a forklift was designed
and suitable for propulsion or haulage on a road. It decided that it
was not. In reaching that conclusion Olivier JA adopted the
definition of a road in the Concise Oxford Dictionary (7 ed): ‘a line
of communication, especially a specially prepared track between

places for use by pedestrians, riders and vehicles’. There is no
suggestion in that case that a road must be generally accessible to
the public in order for a machine to qualify as a motor vehicle.
[11] However this court in Mutual and Federal Insurance Co Ltd v
Day 2001 (3) SA 775 (SCA) did invoke the Chauke test with
reference to a ‘public road’ (paras 13 and 16) in determining
whether another type of forklift was a motor vehicle. That it could
be used on public roads, said the court, purportedly following
Chauke, did not mean that it was suitable for such use (para 16).
But the real issue in the Day case too was the nature and purpose
of the forklift. It was common cause that its primary purpose was to
‘lift and move loads in places such as storage and lumbar yards,
steel mills and wharves’.  Unlike the truck in this case, although it
could and did travel on roads, its purpose was not to travel up and
down them and it was not suitable for doing so.  So too in Prinsloo
v Santam Insurance Ltd [1996] 3 All SA 221 (E), the court,
adopting a ‘down-to-earth common sense approach’ held that the
forklift is issue was not a motor vehicle for the purpose of the
Multilateral Motor Vehicle Accidents Fund Act 93 of 1989. In
reaching this conclusion the court had regard to the use to which a
forklift is put – moving crates and pallets loaded with goods in

warehouses, and at airports and stations. The forklift in question
was neither designed nor suitable for use on roads whether public
or private.
[12] In Road Accident Fund v Vogel (above) the court referred
repeatedly to use on a public road. But that case was also not
concerned with a vehicle designed and suitable for travelling on
roads of any kind. The court held that a mobile ground power unit
that provided electric power to stationary aircraft at airports was
not a motor vehicle for the purpose of the Act. Although it could be
driven on a road, it was in general driven only within operational
areas of airports, specifically on the apron. The conclusion of the
court that the raison d’etre of the power unit – the provision of
electrical power to aircraft – made it impossible to conclude that it
was designed for general use on ‘public roads’ (para 24) is not in
any way dependent on the nature of the road on which it was
driven. The overriding consideration was the purpose of the unit,
and its suitability for travelling on a road.
[13] The truck in issue in this case is of a different order. Its very
purpose is to travel along specially constructed roads carrying
loads. It is designed for that purpose and there is no suggestion at

all that it is unsuitable so to do. It is also constructed in such a way
that it is safe for use on those roads when there is other traffic.
That it is not safe for use on a public road cannot be a
determinative criterion as to whether it is a motor vehicle for the
purpose of the Act. It is designed and suitable for use on haul
roads, and the Act applies throughout the Republic and not just to
vehicles used on public roads. As counsel for the second and third
respondents contended, if a standard motor vehicle were to collide
with another and injure the driver or a passenger, or to injure a
pedestrian, on a haul road, the injured party would be able to claim
compensation under the Act. It would be anomalous to hold that
where injuries were caused as a result of the negligence of the
driver of a truck of the kind in question, no action would be
available to the injured party against the Fund.
[14] I accept the contention of the second and third respondents
that the court must adopt a common sense approach in
determining whether a vehicle is a motor vehicle for the purpose of
the Act. The truck in issue looks like a motor vehicle, and its
purpose is to travel on roads to haul loads. It is designed and
suitable for that purpose. The purposes of forklifts, cranes,

lawnmowers and mobile power units are very different. That they
can travel on a road is incidental to their purpose.
[15] In my view, the truck is a motor vehicle as defined in the Act.
[16] The appeal is dismissed with costs.
_____________
C H Lewis
Judge of Appeal
Concur:
Harms JA
Patel AJA