Abstract

KGOALE, Thupane Justice  and  ODEKU, Kola. An analysis of legal accountability for artificial intelligence systems in the South African financial sector. De Jure (Pretoria) [online]. 2023, vol.56, n.1, pp.191-205. ISSN 2225-7160.  http://dx.doi.org/10.17159/2225-7160/2023/v56a14.

While the deployment and use of Artificial Intelligence Systems (AIS) have continued to grow at an exponential rate in the world, and they are generally viewed as positive for economic growth and productivity. However, there is a concern about how to hold AIS legally liable and responsible just as a person. This is said against the backdrop that AIS has become indistinguishable from humans and as such they should be entitled to a status comparable to natural persons in order for them to enjoy legal rights and incur liabilities like juristic and natural persons. Especially in the financial sector where the use is ubiquitous in virtually all aspects of the sector from credit assessment to credit rating, credit and loan facilities, customer services, and decision-making for and on behalf of corporations. The situation in South Africa is precarious because, presently, the AIS has not been granted clear legal status in any South African statutes. It is pertinent to point out that while there is no legislative framework dealing specifically with AIS and related legal issues in the financial sector such as the banking industry, a raft of legislation is in place to regulate potential risks posed by the use of AIS in the sector in South Africa. These include legislation in the areas of financial and banking regulations. The problem is the fragmented way the regulations and legislation have been approached. Notably, the financial sector in South Africa uses AIS for their operations and as such sometimes, AIS commits errors, omissions, etcetera, making them eligible for accountability. But the problem still remains that there is no single legislation in South Africa upon which AIS will be held legally accountable save for fragmented pieces of legislative frameworks which have accountability components, but these are not adequate. It is against the backdrop of this specific accountability vacuum for AIS in the financial sector that this article explores germane provisions of the Constitution of the Republic of South Africa 1996 (Constitution) as well as existing fragmented legislative frameworks and foreign law jurisprudence where AIS accountability is well developed and have the potential to hold AIS responsible for their omissions or commission was explored and useful lessons are drawn accordingly.

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