South Africa: Motor Vehicle Collisions Liability Regime Applied to Automated Vehicles

South Africa is home to some of the world’s most dangerous roads, with 12,921 people killed by motor vehicle accidents in 2018, the majority of which were caused by human error (Road Traffic Management Corporation (2019) State of Road Safety Report: Calendar available at https://www.arrivealive.co.za/documents/State%20of%20Road%20Safety%20Report%202019.pdf Accessed 19 October 2020.). According to the eNatis system there were 12,283,777 licensed drivers on the roads (This was as at 28 February 2017. See http://www.enatis.com/index.php/statistics Accessed 19 October 2020.) and 12,932,873 registered vehicles (This was as at 31 August 2020. See http://www.enatis.com/index.php/statistics Accessed 19 October 2020.). These statistics demonstrate that there is an increased need to regulate and improve the safety of South African roads. The introduction of driver assistance technologies over the last decade has been accompanied by the suggestion that these technologies will improve road safety and reduce the occurrence of accidents. Legal regimes and principles often play catch-up to ever-changing and advancing technology—this is no different in South Africa. In this chapter we consider how automated vehicles (“AVs”), at all levels of automation as per the SAE J3016 standard will be regulated in South Africa and discuss the existing laws and regulations that govern liability arising from motor vehicle collisions in South Africa. An application of the relevant law reveals that the South African legal regime is currently flexible enough to continue to apply to motor vehicle collisions involving SAE Level 0 to 3 AVs. However, when one begins to consider how the relevant law may be applied to SAE Level 4 to 5 AVs it becomes clear that the delictual principles are no longer capable of being satisfied. South Africa’s legislative enactments which seek to compensate individuals for harms suffered on the roads or as a result of defective products still rely on the common law delictual principles, leaving a lacuna in the law when it comes to SAE Level 4 to 5 AVs. To address this lacuna, an argument to extend the actio de pauperie, however public policy considerations may impede the success of such arguments.