Law professionals in South Africa advocate for regulations governing the use of artificial intelligence in judicial proceedings.
In recent years, the use of Artificial Intelligence (AI) in legal research has become increasingly prevalent in South Africa. However, this technological advancement has raised ethical concerns, particularly regarding the potential for inaccuracies and misuse of AI-generated outputs in legal contexts.
A notable case saw Judge Mavundla's law firm ordered to pay the costs of additional court appearances, as they submitted unverified and fictitious legal evidence. This incident underscores the importance of ensuring the reliability and authenticity of AI-generated data in the legal profession.
Human rights lawyer Mbekezeli Benjamin has expressed concern about lawyers relying too heavily on AI, citing the susceptibility of AI to error as a potential risk that could mislead the court. This sentiment is shared by many, including lawyer Pinto, who specialises in AI, data protection, and IT law, who sees a growing threat to the profession due to the misuse of generative AI.
To address these ethical challenges, South Africa is employing a combination of emerging policies, sectoral regulations, and guidelines from professional bodies. The National Artificial Intelligence Policy Framework, published in October 2024, promotes responsible AI use with a strong emphasis on ethics, transparency, and inclusivity, which indirectly governs the use of AI in sectors including legal research.
Existing laws such as the Protection of Personal Information Act (POPIA), the Electronic Communications and Transactions Act (ECTA), and common law principles are also being applied to address issues such as data privacy and liability for AI use.
Recognising the risks associated with AI, the Association of Arbitrators (Southern Africa) has issued specific AI Guidelines for arbitration proceedings. These guidelines emphasise ethical AI application, risk management, and the necessity for parties to agree on AI use upfront to preserve the integrity of legal processes.
The South Africa Declaration on Artificial Intelligence (2025) further embeds ethical and inclusive principles, promoting data sovereignty and cultural awareness in AI deployment, which supports a broader legal ethical framework.
The Legal Practice Council (LPC) continues to monitor developments and trends around artificial intelligence. They hold the view that existing rules, regulations, and code of conduct are adequate to deal with complaints regarding the use of AI in legal practice. Awareness webinars are conducted for legal practitioners to highlight specific issues and teach them how to avoid being in contravention of LPC rules, regulations, and code of conduct.
Legal practitioners are cautioned against blindly citing case law picked up using AI tools, as instances where there are inaccuracies will be deemed as negligence and potentially misleading to the court. The LPC Law Library is available to legal practitioners at no cost, allowing them to verify and find the latest information regarding case laws and legal research.
The misuse of AI is not viewed as a technological problem but a man-made problem, and the need for ethical, responsible, and consistent use of AI in the legal profession is emphasised. Benjamin has called for clear guidelines, including an amendment to the Code of Conduct, to regulate how AI should be used in judicial proceedings, and for the inappropriate use of artificial intelligence to be punished as a breach of duty with a hefty fine or exclusion or removal from the register of legal professionals.
The judiciary expects strict accountability to prevent such errors from compromising legal outcomes. Very few formal complaints have been lodged, but a number of matters are now starting to be referred to the Legal Practice Council for investigation. In 2023 and 2024, there were defamation trials and a Pietermaritzburg High Court case, respectively, where AI was misused and caused a stir in court.
In the defamation trial, when the judge conducted an independent search using ChatGPT, he found that many of the cited cases were not included in any recognised legal database. In the Pietermaritzburg High Court case, the legal representatives submitted a notice of appeal, citing several authorities and case studies highlighted by the AI. However, the court ultimately ruled against the plaintiff, stating that the lawyers placed false trust in the veracity of AI-generated legal research and failed to check it.
The South African Law Society has warned that even the inadvertent submission of false information can ruin a career. As the use of AI in legal research continues to grow, it is crucial that ethical guidelines are adhered to, ensuring the integrity and reliability of the legal profession.
- Concerns about the over-reliance on AI in legal practice persist, with human rights lawyer Mbekezeli Benjamin advocating for clear guidelines and potential amendments to the Code of Conduct to regulate its use in judicial proceedings.
- To tackle ethical issues related to AI, South Africa is employing a multi-faceted approach that includes guidelines from professional bodies, emerging policies, and sectoral regulations such as the National Artificial Intelligence Policy Framework and existing laws like the Protection of Personal Information Act (POPIA) and the Electronic Communications and Transactions Act (ECTA).
- The Association of Arbitrators (Southern Africa) has issued specific AI Guidelines for arbitration proceedings, focusing on ethical AI application, risk management, and the necessity for parties to agree on AI use upfront to maintain the integrity of legal processes, echoing the broader legal ethical framework.
