South Africa: Wearing Technology Whilst Driving

Last Updated: 5 May 2015
Article by Anneke Meiring and Mpho Manyala

Most Read Contributor in South Africa, September 2016

Google Glass is a wearable computer with an optical head mounted display. The wearer is enabled to communicate with the internet via voice commands. The glasses visually connect the wearer to an Android-run heads up display that offers many of the features of an Android smartphone, and connects the wearer to many of Google's key cloud features (for example apps, calendar, and Gmail). Numerous third party apps can also be accessed in this manner.

The use of Google Glass and smart watches is likely to fall within the ambit of the National Road Traffic Act 93 of 1996, which states:

308A. Prohibition on use of communication device while driving

(1) No person shall drive a vehicle on a public road-
  1. while holding a cellular or mobile telephone or any other communication device in one or both hands or with any other part of the body;
  2. while using or operating a cellular or mobile telephone or other communication device unless such a cellular or mobile telephone or other communication device is affixed to the vehicle or is part of the fixture in the vehicle and remains so affixed while being used or operated, or is specially adapted or designed to be affixed to the person of the driver as headgear, and is so used, to enable such driver to use or operate such telephone or communication device without holding it in the manner contemplated in paragraph (a), and remains so affixed while being used or operated.
  1. The word "headgear" includes for the purpose of this regulation a device which is specially designed or adapted to allow the driver to use a cellular or mobile telephone or other communication device in such a manner that he or she does not hold it in one or both hands or with any other part of the body, and which is connected to the cellular or mobile telephone or other communication device concerned, directly or indirectly, while being fitted to or attached to one or both ears of the driver; and
  2. the phrases "cellular or mobile telephone or any other communication device" and "cellular or mobile telephone or other communication device, excludes land mobile radio transmission and reception equipment operating in the frequency band 2 megahertz to 500 megahertz that is affixed to the vehicle or is part of the fixture in the vehicle.

From an interpretation of the above, it should be clear that Google Glass falls in a grey area. The Regulations are not very clear on what "any other communications device" is. Considering the functionality offered by Google Glass, it should in our view, qualify as a communications device. Whilst it is clearly a type of headgear, being something affixed to the head and in fact being fitted to both ears, it is debatable whether it would fall within the definition of "headgear" under the Regulations. The basis of the exclusion of headgear, is that it is a separate device which allows the driver to use the other, primary device (e.g. the mobile phone) in such a manner that the driver does not have to hold it in her hand. The headgear should also be connected to the primary device. The Google Glass doesn't meet either of these requirements. The purpose of the Google Glass is not to enable the use or operation of the primary device. It is also not connected to a primary device. The Google Glass is the device. It is unlikely, if not improbable, that the legislature considered the inclusion of a device such as the Google Glass to fall within the definition of "headgear" at the time that the regulations were drafted. That was back in 1996, and the mobile phone itself was still a new thing.

However, if we apply the common sense approach here, there could be a possibility that one's view may be obscured or that one may be distracted by the visuals on a switched on Google Glass whilst driving (I haven't worn a Google Glass myself, and it is unlikely that I will find R27k to fork out on it). Would the reasonable person have foreseen making an accident whilst wearing headgear or using a device which could impair her vision or distract her? Possibly. Drivers should not be distracted whilst driving. That is why the Department of Environmental Affairs and Tourism (DEAT) and the National Department of Transport (NDoT) compiled the South African Manual for Outdoor Advertising Control (SAMOAC). The manual, amongst other things, restricts the actual size and the type of content which can be displayed on a billboard.

As for the Smart watch, the Regulations apply to cellular or mobile telephone or any other communication device held in one or both hands or with any other part of the body. One is not holding the watch with one's hands because it is affixed to your body (in the same way a normal wrist watch is). It is, however, a Smart watch with user interfaces (not too dissimilar from a Smart phone). It is not headgear. If you were to use and operate your Smart watch whilst driving (other than for checking the time), you are most likely doing what you would do on a Smart Phone. The Smart watch is possibly less of a grey area than the Google Glass.

The purpose of the Regulations is to ensure that you keep your eyes on the road when you are driving. If you are operating your mobile phone or your Smart watch, or distracted by any other device really, your eyes may very well not be one the road. Headgear or looking on a built-in GPS monitor may not be prohibited, but it doesn't make it safe either. You could be wearing a headset and listening to music which is so loud that you cannot hear what is going on in the traffic around you, people hooting from behind, ambulances trying to get past you etc. You might be looking out of the corner of your eye at your GPS.

In the US, the trend appears to be to legislate against the wearing of "head-mounted" computers whilst driving. In the UK, police have warned that Google Glass wearers will be penalised, regardless of whether the device is turned on or not. The approach towards other wearable devices appears to be more tolerant. Presenting evidence that alleged offenders were indeed using the offending device at the time of an offence, is starting to present a problem.

In South Africa, legislation has not been adapted yet to cater for these types of technology. Whilst the use of certain types of technology when driving is not (yet) prohibited, you could for example be charged with the offence of reckless or negligent driving should things go wrong (whether wearing a device or not). It will then be a matter of fact and evidence. The determining factor is likely to be how the South African road traffic authorities will enforce the legislation. The ban on using a mobile phone whilst driving appears to lack teeth, and the public tolerance for this type of behaviour doesn't appear to be too negative either. Maybe it is just another day on the road, with new technology.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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