LAW OF DAMAGES TAKE HOME PORTFOLIO, FOR SEMESTER 2- 2023
NAME:
STUDENT NUMBER
MODULE CODE LPL4802 ( LAW OF DAMAGES)
SIGNATURE:
DUE DATE
ACADEMIC DECLARATION OF HONESTY
Declaration: ……………………………..
♦ I understand what academic dishonesty entails and am aware of UNISA’s policies
in this regard.
♦ I declare that this Exam is my own, original work. Where I have used someone
else’s work, I have indicated this by using the prescribed style of referencing. Every
contribution to, and quotation in this take-home exam from the work or works of other
people has been referenced according to this style.
♦ I have not allowed, and will not allow, anyone to copy my work with the intention of
passing it off as his or her own work.
♦ I did not make use of another student’s work and submitted it as my own.
,QUESTION 1 NATURE AND ASSESSMENT OF NON- PATRIMONY LOSS
a. The critical appreciation or analysis of the costs reasoning to disqualify the
forklift as a motor for purposes of claiming damages from the Road Accident
Fund.
Introduction
This is an appeal from Limpopo Local Division of the High Court, Thoyoyandohu. 1 The
case in Nemangwela v Road Accident Fund (43/2022) [2023] ZASCA 90 (8 June)
concerned the issue where a Hyster 250 Forklif could be regarded as a motor vehicle as
envisaged in section 1 of the Road Accident Fund Act 56 of 1996.
The facts of the cade were briefly as follows:
On 4 November 2016, MS Ndidzulafhi Nemangwela was knocked down by a Hyster
250 Forklift driven by Mr . Mashudu Tshivhembe at her workplace at Nzahele Spar,
Vhembe district, Limpopo. [ para 2] She then instituted an action against RAF for
damages arising out of the injuries she sustained in the accident. The RAF concerned
the merits at 80/20% in favor or Ms. Nemangwela, but on the assumption that the high
court finds that the Forklift is really and indeed a motor vehicle. 2
The central issue before the court was whether a Hyster 250 forklift is a motor vehicle
as contemplate in section 1 of the Road Accident Fund Act 56 of 1996. The appeal is
1
Nemangwela v Road Accident Fund (43/2022) [2023] ZASCA 90 (8 June) 1.
2
Nemangwela v Road Accident Fund 2.
, against the order of the Limpopo Division of the High Court, Thohoyandou (the high
court), where Kgomo ADJP stated that the forklift is not a motor vehicle as
contemplated in RAF Act.3
The central issue was whether the forklift qualify as a motor vehicle, the High Court had
regard to the three requirements to be met for a vehicle to qualify as a motor vehicle
under the RAF Act. The requirements are as follows:
(a) The vehicle must be propelled by fuel, gas or electricity;
(b) Be designed for propulsion; and
(c) On a road.4
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 started further, that the
Collison occurred in an area militated against the RAF incurring liability for her injuries. 5
In its reasoning, the Supreme Court of Appeal highlighted its judgment in the matter
between RAF v Mbendera, where it held that the word ‘road’ in section 1 of the RAF Act
is not limited to a public road. The issue in Mbendera was whether a caterpillar 769
truck could be regarded as a motor vehicle for the purposes of the RAF Act. It held that
the truck in issue looked like a motor vehicle, and its purpose was to travel on roads to
haul loads. The court stated that it was designed and suitable for that purpose, although
not suitable for use on ordinary roads as it was simply too big. In orbiter dictum, it was
indicated that the purposes of forklifts, cranes, lawnmowers and mobile power units are
very different from the truck in that matter. The fact that they can travel on a road I’d
identical to their purpose. Thus in the Mbendera matter the SCA found that the
caterpillar 769 truck was a motor vehicle as defined in the RAF. 6
3
Nemangwela v Road Accident Fund 1.
4
Nemangwela v Road Accident Fund 7.
5
Nemangwela v Road Accident Fund 7.
6
Nemangwela v Road Accident Fund 10.
NAME:
STUDENT NUMBER
MODULE CODE LPL4802 ( LAW OF DAMAGES)
SIGNATURE:
DUE DATE
ACADEMIC DECLARATION OF HONESTY
Declaration: ……………………………..
♦ I understand what academic dishonesty entails and am aware of UNISA’s policies
in this regard.
♦ I declare that this Exam is my own, original work. Where I have used someone
else’s work, I have indicated this by using the prescribed style of referencing. Every
contribution to, and quotation in this take-home exam from the work or works of other
people has been referenced according to this style.
♦ I have not allowed, and will not allow, anyone to copy my work with the intention of
passing it off as his or her own work.
♦ I did not make use of another student’s work and submitted it as my own.
,QUESTION 1 NATURE AND ASSESSMENT OF NON- PATRIMONY LOSS
a. The critical appreciation or analysis of the costs reasoning to disqualify the
forklift as a motor for purposes of claiming damages from the Road Accident
Fund.
Introduction
This is an appeal from Limpopo Local Division of the High Court, Thoyoyandohu. 1 The
case in Nemangwela v Road Accident Fund (43/2022) [2023] ZASCA 90 (8 June)
concerned the issue where a Hyster 250 Forklif could be regarded as a motor vehicle as
envisaged in section 1 of the Road Accident Fund Act 56 of 1996.
The facts of the cade were briefly as follows:
On 4 November 2016, MS Ndidzulafhi Nemangwela was knocked down by a Hyster
250 Forklift driven by Mr . Mashudu Tshivhembe at her workplace at Nzahele Spar,
Vhembe district, Limpopo. [ para 2] She then instituted an action against RAF for
damages arising out of the injuries she sustained in the accident. The RAF concerned
the merits at 80/20% in favor or Ms. Nemangwela, but on the assumption that the high
court finds that the Forklift is really and indeed a motor vehicle. 2
The central issue before the court was whether a Hyster 250 forklift is a motor vehicle
as contemplate in section 1 of the Road Accident Fund Act 56 of 1996. The appeal is
1
Nemangwela v Road Accident Fund (43/2022) [2023] ZASCA 90 (8 June) 1.
2
Nemangwela v Road Accident Fund 2.
, against the order of the Limpopo Division of the High Court, Thohoyandou (the high
court), where Kgomo ADJP stated that the forklift is not a motor vehicle as
contemplated in RAF Act.3
The central issue was whether the forklift qualify as a motor vehicle, the High Court had
regard to the three requirements to be met for a vehicle to qualify as a motor vehicle
under the RAF Act. The requirements are as follows:
(a) The vehicle must be propelled by fuel, gas or electricity;
(b) Be designed for propulsion; and
(c) On a road.4
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 started further, that the
Collison occurred in an area militated against the RAF incurring liability for her injuries. 5
In its reasoning, the Supreme Court of Appeal highlighted its judgment in the matter
between RAF v Mbendera, where it held that the word ‘road’ in section 1 of the RAF Act
is not limited to a public road. The issue in Mbendera was whether a caterpillar 769
truck could be regarded as a motor vehicle for the purposes of the RAF Act. It held that
the truck in issue looked like a motor vehicle, and its purpose was to travel on roads to
haul loads. The court stated that it was designed and suitable for that purpose, although
not suitable for use on ordinary roads as it was simply too big. In orbiter dictum, it was
indicated that the purposes of forklifts, cranes, lawnmowers and mobile power units are
very different from the truck in that matter. The fact that they can travel on a road I’d
identical to their purpose. Thus in the Mbendera matter the SCA found that the
caterpillar 769 truck was a motor vehicle as defined in the RAF. 6
3
Nemangwela v Road Accident Fund 1.
4
Nemangwela v Road Accident Fund 7.
5
Nemangwela v Road Accident Fund 7.
6
Nemangwela v Road Accident Fund 10.
