By Dzhavhelo Mavhunga, Legal Intern, Ndungu Attorneys Inc
28 November 2022
The Covid-19 pandemic pushed South Africa to the door of the Fourth Industrial Revolution. Most services were rendered online, and legal services were of no exception. Legal practice, a traditional career known for orthodox methods and formal in-person and in-court presentations had to shift from manual to digital services. Of course, legislators had to twitch regulations and rules to accommodate the legal use of technology.
One conventional thing that is set to shift from manual (or automatic) to technology-driven operations is motor vehicles. The Department of Transport foresees the trade of Connected Autonomous Vehicles (CAVs) in South Africa soon, and likewise, plans to establish a legislative and regulatory framework that will govern CAVs This raises two questions: firstly, to what extent will South African laws and regulations embrace CAVs? And secondly; what will be the implication of CAVs on legal liability?
Legal Personality of CAVs
In lay-persons’ terms, CAVs are self-driving cars. Automated vehicles are those which use ‘technology to steer, accelerate, and brake with little to no human input.’ Quite similar, connected vehicles use ‘technology to either communicate with each other, connect with traffic signals, signs and other road items, or obtain data from cloud.’ In essence, a CAV is a vehicle that uses technologies, artificial intelligence-based (AI) technologies, to read road signs and move without human effort. CAVs can operate without being driven by a driver.
Section 1(xlii) of the National Road Traffic Act, 1996 (the Traffic Act) defines a motor vehicle as:
A vehicle having pedals and an engine or electric motor as an integral part thereof or attached thereto and which is designed to be propelled by means of such pedals, engine or motor, but does not include vehicles controlled by a pedestrian.
The Act further defines a driver as ‘any person who drives or attempts to drive any vehicle.’
The word person in this instance refers to a legal subject, who is a carrier of juridical competencies, subjective rights, and capacities. These qualities expand to legal entities, known otherwise as juristic persons. As it stands, South African legislation and precedence do not extend legal personality to autonomous entities.
The concept of legal personality draws strength from the principle of communis opinio populi. It means, in simple terms, that a community can concede for a particular entity to be vested with the functions of a legal subject, and therefore be allowed to act according to those functions. It has been contended that applying the principle of communis opinio populi to grant other entities the status of a legal person would be absurd, because only ‘people and natural communities [are] the bearers of juridical capacities, subjective rights and duties.’
For communio opinio populi to be extended to CAVs, it will require South Africa’s legislative and regulatory framework to be adjusted to accommodate such vehicles. It would mean, for example, that the word “driver” in the Traffic Act will have to be amended to include an autonomous driver. Furthermore, the law will need to be amended to deal with the issue of liability for purposes of delictual claims.
Is autonomous liability a thing?
For the law to be effective, there should be legal liability which confers responsibility on an actor for when things go wrong. Because CAVs have no driver (i.e. a legal person) the question of liability relates to who will be held liable for the negligence caused by CAVs. In South Africa, for example, when there is a motor vehicle accident, a number of laws are implicated. These include insurance law, the law of delict, and sometimes criminal law. The common denominator here is the liability of the driver. South African law has not stretched its arms to define liability in the context of CAVs, or an autonomous driver. One has to look elsewhere for guidance.
In the United Kingdom, policy makers emphasise that where a CAV is in self-driving mode, the driver will be absolved of liability, and such liability will be burdened upon the manufacturer of the vehicle
The concept of holding the manufacturer liable for CAV related accidents is based on the idea that CAVs are powered by artificial intelligence, thus giving them the capacity to think on their own. This means that a case of autonomous liability will be treated in accordance with the rules applicable to product liability. ‘Product liability is the theory of legal liability under which the manufacturer or seller of a defective product is held liable for injuries to a consumer caused by that product’s use.’
The problem with product liability in CAVs is that these vehicles have a mind of their own; they study the environment and apply their discretion. It will therefore be challenging to prove that the manufacturer was at fault. Likewise, it will be challenging to detect how the CAV had studied its environment when its operation became faulty.
On the contrary, where the driver-passenger is held liable, the principle of reasonableness will be applicable. The implication of this is that the ‘driver’ must be well-versed in the language of the CAV to be able to study the signals the CAV is sending, and equally be alert on the road.
Conclusion
The Covid-19 pandemic proved that South African laws are not rigid and can be twitched to accommodate the unconventional legal usage of technology. CAVs are a reality and South Africa has no option but to grapple with the legal implication of embracing such technology. Current legislation defines a driver to be the person who propels a vehicle to move, under his or her control. This definition does not cover situations where motor vehicles are driven not by humans, but by technology. South Africa is at a cross road. It will be interesting to see how the country moves forward; whether it will take a leap of faith and accept the new forms of driving technology- and therefore adjust its laws, or whether it will stay the course and remain with the old.
