Cape Town – In a victory for a mother of four, the Supreme Court of Appeal (SCA) has dismissed the Road Accident Fund (RAF) application challenging its liability in an accident at Cape Town harbour 10 years ago.
Thandiswa Mbele’s husband, Simphiwe Makutoana, was a pedestrian at the Multipurpose Terminal at the harbour in February 2010 when the operator of a reach stacker, or container lifter, knocked him down and killed him.
He was employed as a stevedore at the harbour, and Mbele sued the RAF for damages for herself and her four children. At the centre of the case was whether the reach stacker is a “motor vehicle” as defined in the Road Accident Fund Act.
The reach stacker under consideration was designed primarily for lifting, manoeuvring and stacking containers in the container yards of small terminals or medium-sized ports. It is able to transport containers for short distances relatively quickly and stack them.
The RAF contended it is not a motor vehicle and that Mbele’s claim was not competent in terms of the act. The matter had appeared before Western Cape High Court judge Siraj Desai, who found the reach stacker was not a vehicle as defined under the act.
With leave, Mbele then appealed against Judge Desai’s ruling, and a full Bench in the high court upheld her appeal. The RAF then took the finding to the SCA, where Appeal Judge Dumisani Zondi found the stacker was indeed covered in the act.
“Despite its imposing and gigantic size in terms of mass (71.8 tons), width (4.15m), length (11.5m), height (4.5m) and speed limitation of 24km/* , objectively viewed, it cannot be said its driving on a road used by pedestrians and other vehicles would be extraordinarily difficult and hazardous,” Judge Zondi’s judgment read.
“It is fitted with controls and features required to be fitted to a motor vehicle so as to enable it to be used with safety on a road outside the container yard and port terminal where it primarily operates.
“Moreover, because of its operation on Transnet premises, the reach stacker was required to be registered and was registered for use on public roads in terms of the National Road Traffic Act. It’s on a road where there’s other public traffic’,” Judge Zondi said.
The RAF’s appeal was dismissed with costs.