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Matroosberg - Winter Death Trap

Posted: Wed Jun 19, 2013 9:05 am
by Justin
Interesting video about the Matroosberg mountain drive by Carte Blanche talking about the dangers of the commercial drive up the mountain.

"Over 600 people a day visit the area in peak season, but day trippers are oblivious (not made aware) to the dangers."

Matroosberg - Winter Death Trap

Re: Matroosberg - Winter Death Trap

Posted: Wed Jun 19, 2013 9:14 am
by Thermophage
I don't know about day trippers not being made aware. I was there last winter and they were so adamant about making sure to tell us to not even lick the icicles in case your tongue got stuck to it :P Will give the vid a watch soon though...The Ski Club of RSA has a hut there too and a ski lift as well. So perhaps in a combined effort things can be made safer and more accessible?

Re: Matroosberg - Winter Death Trap

Posted: Wed Jun 19, 2013 9:25 am
by Justin
Thermophage wrote:I don't know about day trippers not being made aware. I was there last winter and they were so adamant about making sure to tell us to not even lick the icicles in case your tongue got stuck to it :P
That's probably because a court case is about to be heard.

Re: Matroosberg - Winter Death Trap

Posted: Wed Jun 19, 2013 9:37 am
by Thermophage
Justin wrote:
Thermophage wrote:I don't know about day trippers not being made aware. I was there last winter and they were so adamant about making sure to tell us to not even lick the icicles in case your tongue got stuck to it :P
That's probably because a court case is about to be heard.
Good point :?

Re: Matroosberg - Winter Death Trap

Posted: Wed Jun 19, 2013 10:30 am
by Nic Le Maitre
The Carte Blanche piece is a little sensationalist, especially the title but they do have a point. In the past the farmer/operator has sold the trip as a safe, fun-filled day playing in the snow and has ferried truckloads of tourists and allowed anyone with a 4x4 up to a viewpoint overlooking a huge (100-400m) drop without, in my opinion (I have read and signed his indemnity/waiver/warning many times), properly informing the tourists of the risks. Three deaths later he did nothing. It is only now with the lawsuit pending that he has moved to place warning signs indicating areas beyond which it is dangerous to walk etc.

I strongly believe that you should be responsible for your own safety in the mountains and are responsible for the consequences of your actions however in this case I do believe that the operator has a duty of care towards his paying customers and he failed in that duty.

The consequences for landowners should the court find in favour of the family are very scary however. It would imply that anyone can sue a landowner on whose property they sustain an injury which could lead to closure of areas and restrictions on access.

Re: Matroosberg - Winter Death Trap

Posted: Wed Jun 19, 2013 1:02 pm
by ant
I wrote a Master's thesis on (nearly) this topic.
Matroosberg was not one of my 15 case sites.

It can be read at http://hpc.uct.ac.za/NegotiatedAccess-AntHall.pdf

It is NOT an authoritative legal reference.
Reference pages 38 & 39 regarding liability and
Reference pages 77 & 78 for a suggestion about how this might apply to issues of wilderness access, and what type of landowner might have what type of duty of care

Now, my personal opinion:
- That prosecution of the landowners is against public interest - particularly the possible implications for recreation and enjoyment of natural areas, nationwide.
- But that the status quo at Matroosberg is untenable. That EITHER the road should be removed, OR adequate reception facilities should be installed up top. 'Adequate' would probably look something like the board-walks and railings around the upper Cable Car station. I probably prefer the former, but the latter is necessary if the landowner wants to continue facilitating access and enjoyment of this natural area for a different profile of user (those who ride up the road)

Both the construction of a road and a set of board-walks (depending on the extent of the board-walks) mandate at least a basic EIA.
Yes even on private property, and the law is there for a reason (not just saving plants and the pristine-ness of natural areas - it looks at people and their use as well)
I don't have my facts about if and how this was done for the road.

Re: Matroosberg - Winter Death Trap

Posted: Thu Jun 20, 2013 10:22 am
by Chris F
Interesting Ant. I'd like to read it all at some point.

Minor note thought; Scottish access laws differ from England; we've always had the right to roam even prior to CRoW.

Re: Matroosberg - Winter Death Trap

Posted: Thu Jun 20, 2013 11:13 am
by ant
Thanks Chris.
Indeed. Right to roam was/is common law. CRoW 'codifies' it - effectively 'bumping it up the hierarchy' of legislation.

Re: Matroosberg - Winter Death Trap

Posted: Thu Apr 03, 2014 11:37 am
by Justin
http://www.legalbrief.co.za reports:

Nature reserve not liable for man’s death – ruling

The widow of an Italian man who fell to his death off a snowy precipice at a popular Cape winter scenic spot has lost her bid to hold a private nature reserve liable for damages.

Here is the report from 2010 Tourist dies after falling off Matroosberg Mountain

And if you were wondering why it was so cold yesterday, the snow on Matroosberg might have had something to do with it!

Re: Matroosberg - Winter Death Trap

Posted: Sun May 31, 2015 6:26 pm
by Nic Le Maitre
So after losing the first case in the Cape High Court (You can read the whole judgement here: http://www.saflii.org/za/cases/ZAWCHC/2014/35.pdf), the family appealed the judgement and won their appeal, you can read the judgement here: http://www.justice.gov.za/sca/judgments ... 15-075.pdf

So, if there are any lawyers that climb, I'd love you to give your input on what precedent this establishes with respect to landowners responsibilities to the people they allow to access their land.

Re: Matroosberg - Winter Death Trap

Posted: Mon Jun 01, 2015 10:12 am
by friend1.0
This is very interesting for me as I was involved in preparing Mrs Za's claim when I was a young attorney. I attended the initial consultations with the plaintiff's witnesses and counsel and prepared the initial instruction to counsel.

Whilst I was initially concerned that this case, if successful, could result in access restrictions and other negative consequences for us climbers, I soon came to realise that the matter would not in fact be changing the way in which these types of cases are dealt with in the law of delict: simply put, those in control of dangerous property are under a duty to render the property reasonably safe for those who could be expected to visit that property. This is confirmed in the judgment of Brand JA where he discusses the element of wrongfulness (this is, by the way, a very useful exposition of the law on the element of wrongfulness, which has traditionally been a source of much confusion, and I wouldn't be surprised if for this reason this judgment becomes a prescribed text in law-schools ). But I digress. The point is that given the specific way in which access to Conical Peak is managed and controlled (for profit), and the very peculiar dangers at the top of the peak, which are not necessarily obvious to visitors (melted snow on top of frozen snow, which is accessed by way of 4X4s, thereby placing visitors right at the site of the danger right away i.e. they're not hiking up to the point and allowing themselves time to get a feel for the snow and adjust to the dangerous conditions, as is evident from the fact that three visitors have already died there), the owners have put themselves in a position where they should be taking reasonable measures to protect their visitors from these dangers before allowing them access. This is to be distinguished, I think, from the situation where we go hiking on someone's farm or climbing in a kloof as the dangers there are not so obscure.

My feeling is therefore that (1) the SCA judgment is correct and (2) we as climbers don't need to be too concerned about the consequences for access. In short, I do not think that this judgment will result in, for example, Thys closing De Pakhuys out of fear for a wrongful-death suit, or Cape Nature building a via-ferrata up to Du Toitskloof to make access "safer". If anything, this judgment will motivate landowners to communicate more clearly with their visitors, which I think would be a good thing.

Re: Matroosberg - Winter Death Trap

Posted: Mon Jun 01, 2015 10:51 am
by Justin
Thanks for the reply. The question I have is - what if a bolt fails and a person is injured (due to the bolt failure).
Will landowners be(come) responsible for the climbing bolts on their property?

Re: Matroosberg - Winter Death Trap

Posted: Mon Jun 01, 2015 11:18 am
by Nic Le Maitre
My take (as a lay person but the wording is quite clear) on the judgement was that he explicitly stated that each case should be tried on it's own merits and the wrongfulness/negligence on the part of the land owners was because they failed to make visitors aware of "objective hazards" - non-obvious hazards - like that slipping and falling could result in more than a bruise, you could slide over the edge and they had not taken "reasonable steps" to highlight the hazards.

So if the hazards are obvious then you don't need to do anything, and if you've notified people of non-obvious hazards by taking reasonable steps you should be ok.

That's the way I read it

Re: Matroosberg - Winter Death Trap

Posted: Mon Jun 01, 2015 11:30 am
by friend1.0
I have no idea Justin. Possibly. It would probably depend on how the owner regulates access to the route and whether or not they know the bolts are dodgy or that the route is dangerously bolted.

To put this in relation to the Matroosberg case, the owner could probably be held liable if through their actions they caused the climber to have a "false sense of security" which led to the climber not being on their guard when using the bolts. As you can see, this scenario seems quite unlikely. In most cases, climbers use bolts without communicating directly with the owner or bolter and therefore the owner/bolter cannot be said to ever have been in a position to take preventative action. On the other hand, if the route is bolted in an inherently dangerous way, and the owner/bolter is aware of this and doesn't take action to prevent future users of the route from getting hurt, this would constitute gross negligence and could (probably rightly, in my view) lead to liability. I mean come on, you can't for argument's sake go setting a trap for future climbers to get hurt and then want to escape liability on the grounds that climbing is "inherently dangerous"!

Re: Matroosberg - Winter Death Trap

Posted: Mon Jun 01, 2015 11:31 am
by friend1.0
I agree, Nic. Well said.