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| what were they thinking? |

In the case of AA Mutual Insurance Association v Sibothobotho one has to wonder what was Mr Sibothobotho thinking! The case was concerned with whether, according to the facts Mr Sibothobotho was ‘conveyed’ in terms of the Compulsory Motor Vehicle Insurance Act (the predecessor to the Road Accident Fund Act, a similar definition still exists in the RAF Act).

 

The Facts were as follows:

Mr Sibothobotho was employed essentially as a pall-bearer. He, along with a number of other pall-bearers was sent to a funeral on the outskirts of Whittlesea in the Eastern Cape. The party consisted of a hearse, conveying the coffin and a second hearse in which Mr Sibothobotho and the other pall-bearers drove. Just outside Cathcart, the second hearse suffered a set back, the engine choked and the vehicle came to a stand still.

 

Damane, who was the man in charge, had some knowledge about cars. After looking at the engine it was decided that the problem was that the petrol was not getting into the engine. They siphoned petrol from the tank and poured the petrol into the carburettor. The car started, but the success was short lived and the hearse stalled and came to a stop a few metres down the road.

 

At this point Mr Sibothobotho came up with a new plan, he stated, ‘"Father, I think the best plan is that we take a cooldrink tin and then we open a little hole underneath where I shall be able to close that hole with my finger, then we pour petrol into the tin, then I sit here on top in the car, and catch the tin or hold the tin over the carburettor and then try to put in a little petrol by removing my finger now and again."

 

Basically the plan was for him to sit on the engine of the moving car and to drip petrol into the carburetor all the way to Whittlesea. The driver, Damane would peer through the opening under the bonnet in order to see the road ahead.

 

 As one would have anticipated the story does not end well. The car jerked forward; there was a flame and the hearse backfired and Mr Sibothobotho disappeared over the front of the radiator. He suffered injuries and in due course instituted an action for damages.

 

The courts preferred a narrow interpretation of the word ‘convey.’ It was taken to mean, ‘carry for the purpose of transportation.’ The courts held Mr Sibothobotho did not fall into this category as he was sitting on the engine for the purpose of getting the engine started. The fact that the car had moved forward a few paces could not be construed as the transportation of a passenger in terms of the act. He was accordingly not awarded damages.

 

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delport ward & pienaar

attorneys, notaries &  conveyancers
1st floor - cornerstone house

16 loop street

cape town

8001

 

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