Za v Smith

On 27 June 2009, the late Mr Pieralberto Za (the deceased) slipped on a snow-covered mountain slope at Conical Peak in the Matroosberg private reserve and fell over a 150-metre sheer precipice to his death. The deceased and his friend Mr Moggee had paid an entrance fee to access the reserve, which was owned by the first respondent (Mr Andre Smith) and operated as a commercial private nature reserve by the second respondent (Matroosberg Reservaat CC). The reserve offered four-wheel drive routes, with the route to Conical Peak being a main attraction, particularly in winter when snow was present. The deceased, an Italian architect from the Dolomites with experience of snow and skiing, visited the area with Moggee on a day trip. They drove up a designated four-wheel drive track to the parking area at Conical Peak where 20-30 other people were already present, including children playing in the snow. The parking area was covered in snow, with a hidden precipice edge not visible from the parking area. Moggee and the deceased alighted and began walking parallel to the precipice edge carrying chairs and beers. Without warning, Moggee slipped on hard ice beneath a thin layer of snow and began sliding toward the precipice, managing to stop himself by grabbing vegetation. The deceased slid past him and fell over the precipice to his death. Expert evidence established that conditions that day were "objectively dangerous" - a thin layer (1-2 cm) of unfrozen snow concealed a hard layer of frozen ice that was extremely slippery, particularly on a slope. This danger was not apparent to inexperienced visitors. Another witness, Mr Rall, testified that he and his wife had walked near the edge without appreciating the danger, believing it to be a gentle slope. The appellant, Ms Federica Za, the deceased's widow and mother of their three minor children (aged 8 to 2), instituted action for loss of support based on the respondents' wrongful and negligent failure to take reasonable steps to prevent the incident. Issues of liability were separated from quantum for trial purposes.

• Whether the respondents owed a legal duty to the deceased and whether their omission to take protective measures was wrongful
• Whether the respondents were negligent in failing to warn visitors of the dangers posed by snow and ice conditions and to take protective measures
• Whether the element of causation was established - i.e., whether but for the respondents' failure to implement safety measures, the deceased's death would have been avoided
• The proper test for wrongfulness in delictual liability for omissions
• The distinction between wrongfulness and negligence in delictual liability
• Whether dangers at the site were 'clear and apparent' such that no duty to warn arose

The appeal was upheld with costs, including costs of two counsel, against the respondents jointly and severally. The order of the trial court (Western Cape Division, Griesel J) was set aside and replaced with: (a) A declaration that the respondents are liable jointly and severally to compensate the plaintiff in her personal capacity and as guardian of her three minor children in such sum as may be agreed or determined in due course; (b) The defendants liable jointly and severally for the plaintiff's costs, including costs of two counsel. The cross-appeal by the respondents was dismissed with costs, including costs of two counsel.

1. Wrongfulness and negligence are discrete elements of delictual liability that must not be conflated. Wrongfulness concerns whether it would be reasonable to impose liability based on policy considerations, while negligence concerns whether the defendant's conduct was reasonable. 2. The test for wrongfulness in delictual liability for omissions focuses on whether, based on policy and legal convictions constitutionally understood, it would be reasonable to impose liability on the defendant for harm caused by the omission, assuming the other elements of delict are present. 3. Those who control property and allow members of the public access for commercial gain owe a legal duty to warn and protect visitors against dangers that are not clear and apparent, particularly where they have created or facilitated access to dangerous areas. 4. The question of whether a danger is "clear and apparent" relates to the negligence inquiry (specifically the second leg of the Kruger v Coetzee test) - whether reasonable steps should be taken to guard against harm - not to wrongfulness. 5. In determining negligence, the reasonableness of taking preventative measures must be assessed with reference to all relevant circumstances of each case, including proportionality considerations such as the likelihood of success, degree of risk, extent of potential harm, and costs involved. 6. In applying the "but-for" test for factual causation in omission cases, a plaintiff must establish on a balance of probabilities (not certainty) that but for the defendant's wrongful and negligent conduct, the harm would not have occurred. This is a practical, common-sense inquiry based on how ordinary minds work against everyday-life experiences. 7. Where safety measures are proposed, the inquiry is whether those measures would probably have been effective in preventing the harm, not whether they would certainly have done so. The defendant cannot escape liability by showing the deceased or others should have been aware of the danger; what matters is whether they were actually aware of it.

1. Brand JA expressed agreement with the academic position of former SCA colleague R.W. Nugent (in his article "Yes, it is always a bad thing for the law") that conflation of wrongfulness and negligence is problematic. The judge reasoned that such conflation may lead to wrongfulness being completely ignored and to liability being imposed without the policy-based "safety valve" of wrongfulness being considered, as would have happened in cases like Telematrix and Minister of Law and Order v Kadir. 2. The court observed that the stereotyped categories of liability for omissions that existed before Minister van Polisie v Ewels (1975), while no longer constituting "straitjackets," still afford useful guidance in answering whether policy considerations dictate that it would be reasonable to impose delictual liability in particular cases. 3. Brand JA commented on the test for wrongfulness articulated in Van Eeden v Minister of Safety and Security (2003), noting that its formulation ("whether it is reasonable to expect the defendant to have taken positive measures") creates potential for confusion with the negligence test ("whether a reasonable person would have taken such measures"), since it would be reasonable to expect the defendant to do what the reasonable person would do. 4. The court noted that the deceased's Italian origins in the Dolomites, where he had skiing experience, created a certain irony that he would meet his fate in South Africa where snow is uncommon. However, the court observed that his experience, rather than protecting him, may have actually contributed to underestimating the danger. 5. The court commented that in a dependant's claim for loss of support, negligence on the part of the deceased - or even less so on the part of a third party like Moggee - would be of no consequence to the claim (though this observation about contributory negligence in dependant's claims touches on established principle). 6. The court observed that the respondents' objection that safety measures would deface the beautiful environment rang hollow given that they had already compromised the natural environment by constructing a four-wheel drive route and erecting signs.

This case is significant in South African delictual law for several reasons: 1. Clarification of wrongfulness vs negligence: The judgment provides important guidance on distinguishing between wrongfulness and negligence as discrete elements of delictual liability, warning against the dangerous conflation of these concepts. It emphasizes that wrongfulness concerns the reasonableness of imposing liability (a policy question), while negligence concerns the reasonableness of the defendant's conduct. 2. Test for wrongfulness: The court endorsed and applied the modern Constitutional Court approach to wrongfulness articulated in cases like Loureiro and Country Cloud Trading, emphasizing that wrongfulness is determined by whether policy and legal convictions, constitutionally understood, regard it as reasonable to impose liability. 3. Liability of property controllers: The case confirms that those who control property and invite the public for commercial gain have duties to protect visitors from non-obvious dangers, particularly where they have created or facilitated access to dangerous areas. 4. "Clear and apparent danger" defence: The judgment clarifies that the visibility or obviousness of danger is a matter of negligence (whether reasonable steps should be taken), not wrongfulness (whether liability should be imposed at all). 5. Causation in omission cases: The case demonstrates the proper application of the "but-for" test for factual causation in omission cases, emphasizing that it is a practical, common-sense inquiry based on probabilities, not certainties. 6. Proportionality in duty to warn: The judgment illustrates how courts should assess proposed safety measures by weighing their likely effectiveness, cost, and proportionality to the risk. 7. Commercial exploitation and duty of care: The case reinforces that commercial operators who profit from providing access to potentially dangerous natural environments have heightened duties to warn and protect visitors from non-obvious dangers. The judgment is an important contribution to South African delict law's ongoing refinement of the elements of delictual liability and their proper application.