File photo: African News Agency (ANA)

Cape Town – A mother has won a nearly decade-long high court battle for compensation from the Road Accident Fund (RAF) after her husband was killed by a container lifter at the harbour.

But an uncertainty over the payout still hangs over Thandiswa Mbele’s head, as her lawyer said the RAF intended to approach the Supreme Court of Appeal (SCA).

In February 2010, Simphiwe Makutoana worked as a stevedore at the Cape Town harbour. He was struck by a reach stacker, which is used to lift ocean containers and place them on-board vessels.

Makutoana succumbed to his injuries the day after he was struck. His widow Mbele submitted a claim, but said the RAF had rejected it.

Mbele then set out to sue the RAF for damages for the loss of support to her and the couple's three children, then aged five months to nine years.

Mbele had, in the Western Cape High Court, argued negligence by Eugene Andrea, who was alleged to have operated the reach stacker when a container struck her husband.

The RAF had disputed liability, charging, among others, that the reach stacker was not a motor vehicle as defined under its act.

The matter had appeared before Western Cape High Court Judge Siraj Desai, who found that the reach stacker was not a vehicle as defined under the act.

Mbele then appealed Judge Desai’s ruling and a full bench of the Western Cape High Court found the vehicle was indeed a “motor vehicle” as contemplated in the act.

“The designers of the reach stacker would have contemplated that it would be required to be propelled along such roads in the harbour these roads are ordinarily used by duly authorised contractors when travelling around the harbour,” the judgment read.

Mbele’s lawyer, Chris Smit, from DSC Attorneys said his client had suffered enough.

“The RAF, which fought the claim on this technicality has not yet relented even following this clear and unequivocal judgment, and are currently threatening to approach the SCA for leave to appeal, something which would inevitably take some time - and money - and which would further delay Ms Mbele and her children's access to much-needed compensation.

“The children are at this stage aged between 9 and 18 years old and have had to survive without their father for nine long years.

"It is to be hoped that having overcome this technical hurdle, they can receive what is due to them without further delay.”

RAF spokesman Seretse Nkuna said the fund would respond to questions on the matter in due course.

Cape Times