Code, Consequences, and Accountability: Rethinking Legal Liability for Software Engineers

When code starts to shape the way people live, move, work, and even get judged, it is not far fetched to ask whether the people writing that code, software engineers, should face the same kind of legal responsibility that architects, doctors, or lawyers do. In South Africa, liability in tech is still largely seen through the lens of contract and negligence law, which means unless a developer explicitly promises something or acts in a way that is clearly careless, it is hard to hold them legally accountable. But that is starting to feel a bit outdated.

Think about how algorithms are used in policing, deciding loan approvals, or even screening job applicants. These are not just tools, they are making decisions that impact lives, sometimes more directly than any human. In the same way that an architect has to account for a collapsed building, or a doctor for a failed diagnosis, should a developer be answerable for a system that discriminates or causes harm, especially when that harm is foreseeable?

Other jurisdictions are starting to grapple with this too. The European Union’s Artificial Intelligence Act is pushing toward assigning responsibility across the AI development chain, and in the United States, debates around Section 230 and algorithmic bias are heating up.

There is growing recognition that code is not neutral, and neither is its creator. That puts pressure on South African law to evolve. Our courts have traditionally been cautious when it comes to tech, often falling back on the idea that the end user or deploying organisation holds the final responsibility. But as the complexity of systems increases and decisions become less transparent, this approach starts to break down.

Developers are not just coders anymore, they are building digital infrastructure that affects rights, freedoms, and safety. It does not mean every bug becomes a lawsuit, but it might mean clearer professional standards, maybe even a formal duty of care in certain contexts. Imagine a standard like the one for engineers or doctors, where there is a recognised baseline for ethical and competent practice. That could lead to better accountability without stifling innovation.

There is also the question of whether liability should rest solely on the individual developer or if companies should carry the weight, especially in large teams where no single person can claim full authorship. Maybe it is not about blaming developers, but about recognising that with great influence comes the need for more robust checks and balances. Either way, the days of treating code as just a tool, and its creators as blameless technicians, might be numbered.

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