According to s 3 of the Road Accident Fund Act 56 of 1996 (hereafter “the Act”), the object of the Fund is the payment of compensation for loss or damage wrongfully caused by the driving of a motor vehicle. The definition of a motor vehicle in s 1 of the Act reads as follows “any vehicle designed or adapted for propulsion or haulage on a road by means of fuel, gas or electricity”. As will be discussed here, the question arises whether a forklift is included in this definition. In other words, does loss caused by a forklift give rise to a claim against the Fund?
In 2023, the Supreme Court of Appeal, in Nemangwela v Road Accident Fund [2023] ZASCA 90 (8 June 2023) identified three requirements for a vehicle to qualify as a motor vehicle in terms of the Act. These requirements are as follows: (i) the vehicle must be propelled by fuel, gas or electricity; (ii) designed for propulsion; (iii) on a public road (para 7).
In a recent judgment in the Mpumalanga Division, Strydom v Road Accident Fund [2024] ZAMPMHC 62 (19 November 2024), the claimant, a pedestrian at the time, sustained serious injury when the load of a Hangcha 5t Series forklift fell on him in a public parking lot. The Fund disputed that the specific Hangcha forklift was a motor vehicle for purposes of the Act and consequently whether the claimant’s claim for compensation qualified in terms of the relevant legislation (para 6). This judgment builds on the Nemangwela judgment, by incorporating technical evidence and manufacturer specifications which were not available in Nemangwela, thus providing a more nuanced understanding of the issue.
The claimant argued that this specific Hangcha forklift had been improved by the inclusion of additional features, so making it suitable for travelling on a road and that it thus qualified as a motor vehicle in terms of the definition in the Act.
It was common cause between the parties that the forklift in question was propelled by fuel, as it was fitted with a diesel combustion engine. The incident took place in a public parking lot, which falls within the definition of a public road, and accordingly the only issue in contention was whether the forklift was designed or adapted for propulsion or haulage on a public road.
While it was noted that the Hangcha 5t Series forklift had been substantially improved in comparison to its predecessors, the question remained whether general use on the road was contemplated when designing the forklift. To answer this question, Justice Langa considered the use of a forklift, which is primarily purposed to lift and move loads in places such as storage and lumber yards, steel mills and wharves. Its purpose is not to travel on roads.
The court further noted that nothing in the operations manual by the manufacturer supported the claimant’s assertion that the forklift could be operated on public roads. For instance, the court found that the operations manual directed that the forklift be operated on cement, blacktop or beton surfaces, which ought to be flat and which had to be inspected; any holes, drop-offs, obstacles and rough spots needed to be eliminated. In the circumstances, the court held that the forklift could not be operated on all road surfaces (para 21). The operations manual warned that it would be dangerous to apply brakes suddenly as this could cause the forklift to capsize. The court held that any vehicle which is not designed to make a sudden stop without causing an accident is not safe for use on the road and cannot be said to be designed or adapted for use on public roads (para 22). The maximum speed of the forklift is also very low in comparison to a normal vehicle, 25km/h, and this made the forklift inherently dangerous to other road users.
Justice Langa J concluded that the core purpose of the Hangcha Forklist is to lift and move loads around designated places – there was no evidence that it was designed as an all-terrain vehicle (para 29) and thus it was not designed and/or adapted for use on the roads, as required by the Act (para 30). The claim was accordingly dismissed.
Section 21(1) of the Act abolishes the common law right of an injured claimant to sue the wrongdoer (that is a driver, owner of the vehicle or the driver’s employer). Put differently, the Fund steps into the shoes of the wrongdoer. However, where a vehicle is not a vehicle in terms of the Act, as in the Strydom v Road Accident Fund case, this abolition then falls away and the injured person’s claim against the wrongdoer is re-instated (see in this regard Groep v Golden Arrow Bus Services (Pty) Ltd [2018] 1 All SA 508 (WCC).
As a result, an injured person should properly consider the identity of the person liable for the loss that they have suffered in any given situation. They should also be mindful of other legislation, for example the Prescription Act 68 of 1969, which extinguishes debts (“claims”) after a certain period. It is essential to consult your attorney to investigate and advise on any such matters.
