IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable

CASE  NO:  113/03
In the matter between :

ROAD ACCIDENT FUND
Appellant
and
DAVID VOGEL
Respondent
___________________________________________________________________________
Coram:
MARAIS JA, JONES et VAN HEERDEN AJJA
Heard:
23 February 2004
Delivered:
11 March 2004
Mobile ground power unit providing electric power to stationary aircraft at airports –
not a motor vehicle as defined in s 1 of Road Accident Fund Act 56 of 1996.
__________________________________________________________________________

J U D G M E N T
___________________________________________________________________________

MARAIS JA/

MARAIS JA:
[1] This appeal raises again the question whether a particular item is a motor
vehicle as defined in s 1 of the Road Accident Fund Act 56 of 1996 (‘the Act’).
The item is a mobile Hobart ground power unit (‘the unit’). After agreeing to
consider separately in terms of Rule 33(4) certain issues, and after hearing
evidence and argument, the Court a quo made orders declaring, first, that the
unit is a motor vehicle in terms of s 1 of the Act, and secondly, that the collision
in which it was involved was caused by the sole and exclusive negligence of one
Botes. Leave to appeal against both orders was refused by the Court a quo
(Daniels J) but leave to appeal against only the first of the declaratory orders
was granted by this Court.
[2] Section 1 of the Act provides that –
‘“Motor vehicle” means 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.’
[3] The interpretation to be given to this definition has been laid down in a
number of cases heard by this Court. These propositions can be extracted from
them. First, 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;
in general parlance, a public road.1
[4] Secondly, 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
[5] The word ‘designed’ in its context means that the enquiry is what ‘the
ordinary, everyday and general purpose for which the [item] in question was
conceived and constructed and how the reasonable person would see its
ordinary, and not some fanciful, use on a road’.3 The appropriate test is whether
a general use on public roads is contemplated.4
[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.5 (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

1 Chauke v Santam Ltd 1997 (1) SA 178 (A) at 181F-G.
2 Matsiba v Santam Versekeringsmaatskappy Bpk 1997 (4) SA 832 (SCA) at 834H; Chauke at 182J - 183A.
3 Chauke at 183B-C.
4 Chauke at 184B.
5 Chauke at 183C.

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 vehicle as defined. In short,
such latter use need not be the only or even the primary use for which it was
designed.6
[9] I must, with respect, confess to being unconvinced about the soundness of
the suggestion in this Court’s judgment in Chauke that the words ‘designed for’
have a less subjective connotation than the words ‘intended for’. The equating of
the words ‘intended for’ with words such as ‘reasonably suitable for’ or
‘reasonably apt for’ by Salmon J in  Daley and Others v Hargreaves7 seems to
me, again with respect, to be unfounded when viewed purely as a matter of the
correct use of language. ‘Intended for’, to my mind, plainly conveys the

6 Mutual and Federal Insurance Co Ltd v Day 2001 (3) SA 775 (SCA) para [14].
7 [1961] All ER 552  (QB).

subjective intention of a human agency; ‘suitable for’ or ‘apt for’, on the other
hand, is a purely objective criterion which has nothing to do with the subjective
intention of the manufacturer of the article under consideration, save to the
extent that it may provide evidence of that intention in cases in which it has not
been clearly expressed. The statutory context in which words such as ‘intended
for’ or ‘designed for’ are used may of course show that, unhappy or
inappropriate though the legislature’s choice of words may have been, they must
be taken to mean something different from what, divorced from their context,
they would mean.
[10] Indeed, when Olivier JA ultimately formulated his own interpretation8 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.
[11] The irreconcilability of the two concepts is, I think, more apparent than
real. Various possibilities can arise. The manufacturer of the item under
consideration may not have designed it to be used generally on ordinary public

8 Chauke at 183B.

roads at all; yet it may, objectively regarded, be eminently suitable for that
purpose. If so, it seems unlikely that parliament would not have wanted to
provide the public with a remedy against the Road Accident Fund if it was
negligently so used and caused injury. At the other end of the spectrum, and
probably extremely unlikely to occur in practice, is an item which was designed
by the manufacturer for general use on ordinary roads, but which an objective
appraisal of its suitability for that purpose shows that the manufacturer has failed
to achieve the result intended. If such a unit is negligently operated on a road
and injures a third party, it seems equally unlikely that parliament would have
wanted the third party to have recourse against the Road Accident Fund.
[12] The net result, so it seems to me, is that while the legislature has not
entirely ignored the subjective intention 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. Whatever reservations I
may have about some of the reasoning of Olivier JA, they do not detract from
the soundness of the test which he ultimately articulated.
[13] I turn to the application of these considerations to the unit. It is called by
its manufacturer the Hobart Ground Power unit. According to the
manufacturer’s promotional brochure it manufactures ‘welding systems, aircraft
ground power equipment and industrial battery chargers’. Its Motor Generator

Division is ‘the world’s largest producer of commercial aircraft ground power
equipment, providing 80 to 90% of all commercial airline requirements’. In
1969 it ‘(a)nnounced first ground power equipment for servicing first of the
jumbo jets, the Boeing 747’ and described it as ‘(a) ground power unit (which)
supplies electricity to the plane while it is on the ground’.
[14] The parts catalogue issued by the manufacturer (Cummins) of the diesel
engine which provides the means of propulsion of the unit lists in separate
columns in the case of each component part the field of application of the
engine. The columns are headed ‘automotive’, ‘off-highway’, ‘construction and
industrial’ and ‘industrial power’. There are 35 pages which bear these column
headings. An ‘x’ has been used to indicate what the field of application of the
relevant parts listed on the page is. On 24 out of 35 pages an ‘x’ has been placed
next to the heading ‘off-highway’. It was argued by counsel for the appellant
that this was significant and showed that use on a highway was not intended. I
shall return to that submission in due course.
[15] Photographs of the unit in its original designed state9 show it to be a large
and lengthy box-like metal structure on four pneumatic tyres. In virtually the
middle of the left side of the structure provision is made to seat the operator of
the unit in such a manner that he or she is seated on the left hand side of the

9 A photograph marked “A” is annexed to this judgment.

structure facing forwards in the direction in which the unit would move if it
were to travel anywhere. There is no enclosed cabin for the operator; he or she is
exposed to the elements of nature.
[16] The unit is equipped with a four cylinder diesel engine and a three speed
gear box with a reverse gear. It has a conventional rack and pinion steering
mechanism and a conventional steering wheel, the shaft of which is almost
vertical. There are left and right turning indicators at both the front and the back
of the unit. There are also broad yellow and black striped chevrons which extend
over the full width of the unit at both the front and back.
[17] Its lighting system comprises two headlights which may be dimmed or
brightened, reflectors at the front, rear and sides of the unit, and brake lights. In
its original designed state it had no windscreen but for use in South Africa a cab
with a windscreen, side windows, and window wiper was fitted.10 It is not
entirely clear whether this was done by the manufacturer at the purchaser’s
request or by the purchaser itself after delivery of the unit. The top speed of the
unit was between 40-60 kph. The operator’s view in the unit’s originally
designed state was unobstructed. The addition of the cab resulted in minor
impairment of the view on the right hand side of the unit.

10 A photograph marked “B” is annexed to this judgment.

[18] It has no speedometer and no safety belt. It has a hooter. Its turning arc is
restricted but comparable to that of a motor vehicle of equivalent size. It is said
to steer and handle like a Land Rover. It was not equipped with rear and side
view mirrors in its original designed state but in South Africa the standard
procedure was to have them fitted to the unit. As it happened, this particular unit
no longer had its mirrors at the time of the incident giving rise to the litigation
but nothing turns on that.
[19] There is no provision for the conveyance of passengers or anything else
but it is fitted with a tow bar. Its ground clearance is 300mm which is
comparable to that of a light delivery vehicle. It has no tendency to oversteer or
understeer and its weight is evenly distributed.
[20] The location of the gear lever is unlike that which is ordinarily found in
motor vehicles designed for general use on public roads. It is situated between
the driver’s legs.
[21] The Court a quo concluded that the primary function or purpose for which
the unit was designed was to supply power to stationary aircraft at airports.
Indeed, the learned judge aptly described it as ‘a mobile power plant’. Although
he did not say so in terms, it appears that he considered general use on a road of
the kind envisaged in the definition to have been either an integral component of

the primary design objective or at least a secondary design objective in the
sense contemplated in the previous decisions of this Court. In my view, he erred.
[22] The basic approach of the Court a quo was that the unit had to be capable
of self-propulsion if it was to serve its  principal purpose. Moreover, it would
have to be capable of being driven along the roads customarily to be found on
airport aprons with relative safety to its operator and to other users of the roads.
Daniels J concluded that the unit was ‘as a probability’ so designed. It is not
clear whether he also thought it to have been designed to be capable of being
driven on public roads other than the roads to be found at airports in similar
safety.
[23] The argument that the ‘off-highway’ designations in the parts catalogue
referred to in para [14] above show that the unit was not designed for use on a
highway is, to my mind, unsound. First, this is not the designation of the
manufacturer of the unit; it is that of the manufacturer of the diesel engine which
powers the unit and relates solely to the engine and its parts. Secondly, there is
no reason to believe that the designations are intended to tell a purchaser of the
engine or spare part what it may not be used for; they are intended to convey the
manifold uses to which the engine and its parts may be put. Automotive is one
of them.

[24] It seems to me to be abundantly clear that this unit was not designed by
its manufacturer for propulsion or haulage on a road of the kind envisaged by
the definition in s 1 of the Act. Its ungainly proportions and appearance; the
absence of provision for conveying anything other than its operator and (if it can
be regarded as conveyance, which I doubt) the power unit which is an integral
part of it; the absence of a speedometer, windscreen, mirrors, safety belt, or
protection against the elements for the operator; the inconvenient and
unconventional location of its gear lever; the low speeds of which it is capable
and, above all, its sole raison d’etre, namely, the provision of electrical power to
stationary aircraft at airports, make it impossible to conclude that it was
designed for general use on public roads other than those which would be
encountered within the operational area of airports.
[25] The existence of some features which are common to motor vehicles
properly so called takes the matter no further. They were obviously required if
the unit was to fulfil its function as a mobile power plant and be able to traverse
terrain upon which people, aircraft, equipment and vehicles would be
encountered. It does not follow that they were provided to enable the unit to be
used on public roads other than the roads to be found within the operational area
of airports.

[26] The additions to the unit which were made or commissioned by its
owner cannot alter the fact that the maker of the unit did not design it for
propulsion or haulage on a road of the kind contemplated by the definition. Nor
can it be said to have been ‘adapted’ for that purpose. Those additions were
obviously to protect the operator from the elements. As soon as a cab was fitted
the partial impediments to rearward visibility which it would create rendered it
desirable that side view mirrors be fitted. These limited adaptations to the
original design of the unit can hardly be regarded as sufficient to convert a unit
which was not designed for the purposes set forth in the definition in s 1 into one
which, by virtue of the adaptation, is thenceforth to be regarded as having been
successfully adapted for such purposes.
[27] The fact that this unit was in fact driven on a few occasions from one
airport to another along public roads proves no more than that it was possible to
use its automotive power to travel relatively long distances but such use of the
unit was not, in my opinion, ‘the ordinary, everyday and general purpose for
which the [unit] was conceived and constructed’ [or adapted], or a use which the
reasonable person would see as ‘ordinary and not fanciful’.

[28] Not only is this a case in which the manufacturer did not subjectively
design the unit for the purposes set forth in s 1; it is a case where, even if it had
purported to do so, the application of the objective test of whether the unit,

objectively regarded, was reasonably suitable for such purposes would have
caused it to fail in its attempt.
[29] In the event of the appeal succeeding, counsel for the appellant asked for
the costs of two counsel. There is, in my opinion, not sufficient justification for
such an order. The principles applicable to a determination of the issue have
been settled in previous decisions of this Court. The factual enquiry involved
was neither lengthy nor complex.
[30] The appeal is upheld with costs. The order of the Court a quo dismissing
the special plea is set aside and substituted by an order upholding the special
plea and dismissing the plaintiff’s claim with costs.

_____________________

R M MARAIS

JUDGE OF APPEAL

JONES AJA
)
VAN HEERDEN AJA )  CONCUR

“A”

“B”