HNM ATTORNEYS

The use of artificial intelligence (“AI”) in our modern legal landscape may be intimidating for the legal fraternity.

The use of artificial intelligence (“AI”) in our modern legal landscape may be intimidating for the legal fraternity. However, one should not shy away from progressing with innovation which involves taking every new opportunity for modernisation as a chance to improve. AI and the general rise of legal technology embodies this very opportunity. But what should we be weary of? Is it really just as simple as plugging in whatever legal issue you are faced with into a chatbox and trusting that whatever is churned out will provide legally sound information? The courts’ view is that a legal professional’s duty to the court is much more stringent. The impending increased use of AI as a tool to assist legal practitioners has long been anticipated. In fact, the impact of AI on a variety of different industries has been presented largely as a sensationalist doomsday to job security across the board, with the threat that the rise in AI will lead to the obsolescence of many of our roles. Whilst one may concede that this is not such a far stretch of the imagination, it is unlikely that such a scenario is our current reality in law. On the contrary, the use of technology and AI represents a tool for the everyday tasks that lawyers are faced with, such as drafting an email or a letter, or summarising excerpts of legal pleadings. Jurisdictions beyond South Africa are also contending with how best to regulate and integrate the use of AI in legal practice. For example, the European Union has adopted the Artificial Intelligence Act, a measure that protects human rights, democracy, the rule of law, and environmental sustainability against high-risk AI, while simultaneously fostering innovation and reinforcing Europe’s leading role in this area1.

South Africa has yet to adopt comparable legislation, however, in shaping our approach to use to AI use, we may draw guidance from principles established by the courts. In the case of Philani Godfrey Mavundla v The MEC: Department of Co-Operative Government and Traditional Affairs, Kwa-Zulu Natal and Others (7940/2024P) [2025] ZAKZPHC 2 (“Mavundla”), Justice Bezuidenhout expressed a deep sense of disapprobation towards an article clerk who appeared to have referenced a variety of case law provided to counsel, without having confirmed neither their existence nor their substantiation of any of the legal points being made in argument. The key takeaway from this judgment is that it is an ill-advised strategy to seek substantiation of a point law by way of posing a legal issue to a chatbox and trusting that it will provide you with a list of reputable sources. As Justice Bezudenhout states,

1 The Application of Artificial Intelligence Tools in the Legal Profession- Milica Njegovan,Mirjana Fiser

“the efficiency of modern technology still needs to be infused with a dose of good old-fashioned independent reading.” It is appropriate that this principle should be extended to uses of technological tools intended to expedite tasks, including AI. The deployment of AI must be supplemented by an obligation to verify the accuracy of the information it provides. Consequently, any AI-generated document, correspondence, report, or legal authority must be rigorously validated prior to use. For example, in the case of Siyabulela Makunga v Barlequins Beleggings (Pty) Ltd t/a Indigo Spur (19733/2017) [2023] ZAWCHC 332 (“Makunga”), the plaintiff, lacking legal representation, took it upon himself to draft his own heads of argument, relying solely on Google as his resource. Remarkably, the judgment suggests that the heads of argument he prepared were of such an exceptional standard that they impressed both members of the Bar and the presiding judge. As opposed to the case of Mavunga, the case of Makunga represents the potential that AI has to be used, not only as a pivotal tool for legal professionals, but also as a means of advancing equitable access to legal resources.