Nemangwela v Road Accident Fund
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Mocumie JA, Molefe JA, Nhlangulela JA, Daffue AJA and Masipa AJA |
| Judgment Date | 08 June 2023 |
| Citation | 2023 JDR 2034 (SCA) |
| Hearing Date | 19 May 2023 |
| Docket Number | 437/2022 |
| Court | Supreme Court of Appeal |
Molefe JA (Mocumie JA and Nhlangulela, Daffue and Masipa AJJA concurring):
The issue in this appeal is whether a Hyster 250 forklift is a 'motor vehicle' as contemplated in s 1 of the Road Accident Fund Act 56 of 1996 (the RAF Act). The appeal is against the order of the Limpopo Division of the High Court, Thohoyandou (the high court). It held per Kgomo ADJP that the forklift is not a 'motor vehicle' as contemplated in the RAF Act. This appeal is with leave of the high court.
The issue arose in the following circumstances. On 4 November 2016, Ms. Ndidzulafhi Nemangwela [1] was knocked down by a Hyster 250 forklift driven by Mr. Mashudu Tshishonga at her workplace at Nzhelele Spar, Vhembe district, Limpopo. She instituted an action against the RAF for damages arising out of the injuries she sustained in the accident. The RAF conceded the merits at 80/20% in favour of Ms. Nemangwela, but on the assumption that the high court finds that the forklift is indeed a motor vehicle.
2023 JDR 2034 p3
Molefe JA (Mocumie JA and Nhlangulela, Daffue and Masipa AJJA concurring)
In its plea the RAF did not expressly deny that the forklift that caused the damage was a motor vehicle. It claimed no knowledge of the allegations relating to the incident, denied them and put Ms Nemangwela to the proof thereof. At the trial, and before evidence was led on the merits, the parties agreed that the only remaining issue in respect of the merits was whether the particular forklift was a motor vehicle or not.
Ms. Nemangwela was the only witness called upon to testify in her case. She testified that on 4 November 2016, at approximately 06h45, she reported for duty. She was merchandising for Sasko at the premises of the Nzhelele Spar store. At her workplace inside the Spar premises she saw the forklift reversing towards the receiving bay. The forklift knocked her, causing her to fall where after it drove over her leg. She sustained injuries and was admitted to hospital. In her testimony, she described a few key points in relation to the accident area. She testified that the forklift was generally used to carry loads within the Nzhelele Spar premises; that the receiving zone is used for stock loading; and the receiving zone is separated from the outside parking area by a gate. The forklift would however, sometimes be driven outside the Spar premises, crossing over the public road to Boxer store.
The driver of the forklift testified on behalf of the RAF. He testified that he was licensed to drive the forklift and had been driving it for nine months before the incident occurred. He was trained on its operation and use by its manufacturers and/or distributors. He used the forklift for loading and offloading goods from the Spar receiving area. He denied that the forklift would sometimes be driven outside the premises or around the parking areas. He testified that he was specifically told and trained not to drive the forklift on the main road. In his day-to-day activities he carried the load from the receiving zone to the store, but avoided the store entrance used by the customers.
As I already stated, the issue is whether the Hyster 250 forklift is a motor vehicle as defined in s 1 of the RAF Act. This section defines a 'motor vehicle' as 'any vehicle designed or adopted 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'.
2023 JDR 2034 p4
Molefe JA (Mocumie JA and Nhlangulela, Daffue and Masipa AJJA concurring)
There are three requirements to be met for a vehicle to qualify as a 'motor vehicle' under the RAF Act. The vehicle must: (a) be propelled by fuel, gas or electricity; (b) be designed for propulsion; and (c) on a road. The high court found that the forklift that knocked Ms. Nemangwela down cannot be classified as a motor vehicle for the purpose of the RAF Act. It held, furthermore, that the collision occurred in an area militated against the RAF incurring liability for her injuries.
The design of a Hyster 250 forklift
Despite the absence of technical evidence and the specifications of the forklift by the manufacturer in the high court, the forklift under consideration was designed primarily for loading/offloading goods from the receiving area into the...
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