The court considered, under the common law the potential confusion between wrongfulness and negligence.

      The court stated that an omission is wrongful: if the defendant is under a legal duty to act positively to prevent the harm suffered by the plaintiff. The test is one of reasonableness. A defendant is under a legal duty to act positively to prevent harm to the plaintiff if it is reasonable to expect of the defendant to have taken positive measures to prevent the harm.'      This is to be compared with the formulation of the test for negligence: negligence would be established if a diligens paterfamilias in the position of the defendant:

·         would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

·         would take reasonable steps to guard against such occurrence; and

the defendant failed to take such steps

In this matter Za (the wife of the deceased and legal guardian of the deceased’s children) sued the owner of a farm (Smith) and a corporation that carried on the business of a private nature reserve on the farm, for loss of support as a result of the death of Pieralberto her husband. Za alleged that the  omission of Smith and the corporation had resulted in his death. The background was that the corporation allowed members of the public to use certain amenities. On the winter day in question the late Mr Pieralberto Za (the deceased) slipped on a snow-covered mountain slope and fell over a 150 metre sheer precipice. The incident occurred at Conical Peak, one of the highest mountain peaks in the Western Cape. He had walked across snow-covered ground to look into the gorge that was close by. Near to, but not at the edge of the gorge, Pieralberto had slipped on ice concealed by the snow, had slid over the edge and fallen to his death.

The proposition emphasised by Smith and the corporation (the respondents on appeal), namely that, since the deceased grew up in the Dolomites, he would probably be in an even better position than Moggee to recognise the dangerous situation that confronted them. The court accepted that but believed the argument again misses the point. The point is not whether Moggee or the deceased should have been more alert and that, if they were, they would have realised the danger. That could perhaps be classified as negligence. But since we are dealing with a dependent’s claim, negligence on the part of the deceased; or even less on the part of Moggee; would be of no consequence.

The expert evidence of members of the Mountain Club of South Africa (Mountain Search and Rescue Team) namely Dr Rik De Decker and Deon Tromp described the prevailing conditions near Conical Peak on the day of the incident as 'objectively dangerous'. De Dekker stated that there was a real and imminent danger which was unlikely to be recognisable by those with no experience of these conditions. What rendered the conditions so dangerous, he said, was the fact that there was a soft layer of unfrozen snow, at places no more than one to two centimetres thick, concealing a hard layer of frozen ice which was extremely slippery and dangerous, particularly on a slope. And if one slipped and fell on the slope, he explained, one could slide for hundreds of metres, only coming to a stop once the incline flattens or something else arrests the slide. He then concluded that the layer of unfrozen snow had been caused by the fact that the top layer had melted. With reference to the deep layer of unfrozen snow encountered by the vehicles on their route up the mountain, as depicted in the photographs, he explained that the temperature was higher at the lower altitudes than at Conical Peak. In addition, the rate of melting also had to do with the elevation and position of the sun, the slope orientation, protruding topographical features, and so forth. In short, because the parking area was higher and the incidence of sunlight less than en route up the mountain, this resulted in less melting of frozen snow than would have been encountered en route. To the unwary everything would, however, look virtually I the same: a mountain area covered by soft snow.

The criterion applied by the court a quo for determining factual causation was the well-known but-for test. What it essentially lays down is the enquiry — in the case of an omission — as to whether, but for the defendant's wrongful and negligent failure to take reasonable steps, the plaintiff's loss would not have ensued. In this regard this court has said on more than one occasion that the application of the 'but-for test' is not based on mathematics, pure science or philosophy. It is a matter of common sense, based on the practical way in which the minds of ordinary people work, against the background of everyday-life experiences. In applying this common-sense, practical test, a plaintiff therefore has to establish that it is more likely than not that, but for the defendant's wrongful and negligent conduct, his or her harm would not have ensued.

In order to succeed in proving that the warning measures proposed by Tromp would have made no difference, the respondents would have to show that the deceased — and, for that matter, Moggee — were actually aware of the danger that they were in. Moggee denied that he was. The respondents contended, however, that this denial is rendered untenable by the inevitable inference from the facts. In support of this contention, they again relied mainly on the evidence of Rall. However, the court this contention unsustainable. Rall himself, did not recognise the real import of the danger that confronted him or his wife on that day. In addition, as Moggee explained, he and the deceased were both the fathers of young children and had good reason not to expose themselves to mortal danger. Their very behaviour that day also indicated that they were not looking for adventure or an adrenalin rush. While they were making their way to the lookout point with their chairs and their beers, they were quite relaxed, until disaster unexpectedly struck. Unlike the court a quo, the court dis not accept think it can be found as a fact that the warning measures proposed by Tromp would be of no consequence. On the contrary, they would probably have been effective. This means that, but for the respondents' wrongful and negligent failure to take reasonable steps, the harm that befell the deceased would not have occurred.

This case is an example of the liability of the land owner for personal injury caused on his property, in this case a natural reserve which is accessible to general public subject to a fee payment. The case shows that under common law in South Africa the land owner who is running a business of a nature reserve is considered to have a legal duty to act positively to prevent harm to the plaintiff if it is reasonable to expect of the defendant that if the positive measures were taken, the harm could have been prevented. It is highly likely that courts around the world, in a situation where the area is commercially operated, would require the owner to take active steps to prevent damage. But individual countries will vary in what action is reasonable to require the landowner to take.

The judgement also  emphasises the role and expertise of members of Mountain Federations, as the court relied heavily on  the expert evidence of members of the Mountain Club of South Africa (Mountain Search and Rescue Team).