A woman who wanted to claim from the Road Accident Fund (RAF) after she was knocked down by a forklift at work has lost her damages case at the Supreme Court of Appeal (SCA).
The judgment upholds an earlier ruling by Frans Kgomo, the acting deputy judge president of the Limpopo local division of the high court, Thohoyandou.
Ndidzulafhi Nemangwela was on November 4 2016 hit by a Hyster 250 forklift driven by Mashudu Tshishonga at her workplace at Nzhelele Spar, outside Louis Trichardt in Limpopo.
“The forklift knocked her, causing her to fall, where after it drove over her leg. She sustained injuries and was admitted to hospital."
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.
In its plea, the RAF did not deny that the forklift that caused the damage was a motor vehicle, also claiming no knowledge of the allegations relating to the incident as well as denying them.
At the trial, Tshishonga and the RAF agreed that the only remaining issue in respect of the merits was whether the particular forklift was a motor vehicle or not.
According to the RAF Act, a motor vehicle is defined 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".
The vehicle must be propelled by fuel, gas or electricity; be designed for propulsion; and on a road.
“The high court found that the forklift that knocked 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,” read the judgment
“… the forklift under consideration was designed primarily for loading/offloading goods from the receiving area into the Spar store. For this purpose, both parties agreed that the Hyster 250 forklift is equipped with a diesel engine, a battery, and one seat for the driver.
“It has an accelerator, a brake pedal and a steering wheel. The rear wheels only turn when the steering wheel is turned. Although it is equipped with lights, indicators and a hooter, it has no speedometer, brake lights and mirrors."
The RAF argued in court that the accident occurred at a private loading facility and not a public road to be used by the general public, adding that for a collision to occur within the context of the RAF Act, the driver must have driven the vehicle on a public road.
Nemangwela’s legal representative argued that the Hyster 250 forklift is a "motor vehicle" as contemplated in the RAF Act, and compared a forklift to a Reach Stacker, which is regarded as a "motor vehicle" by the RAF Act.
A Reach Stacker is a large industrial vehicle that combines components of a forklift and a mobile crane and is designed primarily for lifting, manoeuvering and stacking containers in the container yards of small terminals of medium- sized ports.
Appeal judge Daisy Sekao Molefe said the comparison was misplaced. “It is trite that the primary purpose of the RAF Act is to provide appropriate cover to all road users within the borders of South Africa, to rehabilitate people injured, and to compensate for injuries or death,” said Molefe.
Delivering the judgment, Molefe said: “… there is no basis for finding that this appeal was unnecessary. The appellant pursued an issue which was raised at the trial for the first time. It had not been pleaded pertinently. Her conduct cannot be said to constitute an abuse of court process.
"It would therefore be fair and just that each party bears its own costs in respect of this appeal. In the result, the appeal is dismissed, each party to pay its own costs,” said Molefe.
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