Lize de la Harpe, Senior Legal Advisor at Sanlam Corporate

Introduction

There can be no denying it – the digital age has impacted all aspects of modern day life. The legal profession is no exception. A judgment handed down by the Kwa-Zulu Natal division of the High Court in January 2025 highlighted the dangers of litigants placing blind faith in research generated by artificial intelligence.

Mavundla v MEC: Department of Co-Operative Government and Traditional Affairs KwaZulu-Natal and Others (7940/2024P) [2025] ZAKZPHC

In essence, the matter concerned an application for leave to appeal against a judgment delivered on 16 August 2024. The applicant filed a notice of leave to appeal a few days after the order was granted, containing various grounds of appeal. A supplementary notice of application for leave to appeal was filed three weeks later, which contained, in addition to the grounds of appeal, several references to case authorities in support of submissions made in respect of the grounds of appeal. The application was opposed.

In considering the arguments, especially those set out in the supplementary notice, it came to the court’s attention that several of the cited case law appeared to be incorrect – no such case law could be found in the South African Law Reports, nor in the All South African Law Reports, and no references thereto on the website of the South African Legal Information Institute. In fact, of the nine cases referred to and cited, only two could be found to exist.

Having serious concerns, the court addressed an email to Ms Pillay (the attorney on record) requesting copies of the cases cited in the supplementary notice of appeal. Both Ms Pillay and the first respondent’s counsel appeared before the court on 20 September 2024 at which point she applied for an adjournment as she was unable to source the cases. She explained to the judge that the case references were provided to her by the firm’s article clerk, Ms Farouk, and that she had not had sight of the cases as she was working under a lot of pressure. In fact, as it later came to light, the article clerk drafted the supplementary notice of appeal. The judged accordingly directed Ms Farouk to come to court and explain the origin of the cited cases. Upon being questioned, Ms Farouk indicated that she obtained the cases referred to from law journals by doing research through her Unisa portal and needed time to go back to the office to look at her search history in order to provide the relevant cases to the judge. The judge specifically asked her whether she used an artificial intelligence application such as ChatGPT to assist with her research – she denied having done so.

The matter stood down and upon resuming, Mr Singh (the proprietor of the particular law firm) appeared before the judge requesting a postponement in order to source the cited cases.

The matter was postponed to 25 September 2024 at which point Mr Singh again appeared at court. He explained that his law firm did not have access to the South African Law Reports, All South African Law Reports or SAFLII. The best he could do was to try and source the cited case law using Google. He also brought it to the court’s attention that Ms Farouk was of the view that she had been placed under undue duress when she had to appear before the judge, which appearance in his opinion was uncalled for.

The judgment unpacks each ground of appeal placed before the court focusing on the cited cases and the issues the court took therewith, the details of which we won’t go in to here. When asked by the court to address the issue of costs in respect of the last two court appearances, Mr Singh submitted that the parties were called back to court at the judge’s request and that his client should not be held liable for such costs. When pressed on costs being paid by his firm, i.e. costs de bonis propriis, he submitted that he has a small firm which should not be punished with the additional costs incurred. He also reiterated that he stood by Ms Farouk, yet at the same time did not want to admit to any wrongdoing or take responsibility for her actions.

Having regard to the submissions made, the judge turned to the Code of Conduct for all Legal Practitioners, Candidate Legal Practitioners and Juristic Entities.

Rule 57.1 of the Code of Conduct reads as follows:

“A legal practitioner shall take all reasonable steps to avoid, directly or indirectly, misleading a court or a tribunal on any matter of fact or question of law. In particular, a legal practitioner shall not mislead a court or a tribunal in respect of what is in papers before the court or tribunal, including any transcript of evidence”.

The judge held that it was clear from the above wording that the principle should be expanded to include that a court should also be able to assume and rely on counsel’s tacit representation that the authorities cited and relied upon do actually exist.

Moreover, Rule 18.3 of the Code of Conduct requires a legal practitioner to exercise proper control and supervision over his or her staff and offices. The wording implies the verification of the accuracy and correctness of any information sourced from generative AI systems and other technologies and databases by staff, including candidate legal practitioners, in the legal practitioner’s employ.

With regards to the costs of the appearances on 20 and 25 September 2024, the court held as follows:

“[54] The costs incurred in respect of the appearances on 20 and 25 September 2024 is, in my view, a different matter altogether. The appearance on 22 September 2024 was quite correctly at my instance, but was necessitated due to the discovery of the various non-existent, incorrect and/or fictitious authorities relied upon by the applicant’s legal representatives. Had Ms Pillay checked the authorities before coming to court, she would have, I hope, informed the court and denounced any reliance on the cases cited. Had whoever signed the supplementary notice of appeal and who was responsible for supervising Ms Farouk’s handiwork and research, done the most basic check, the issue would have been discovered even before the document was issued and served. As for Ms Farouk’s ‘research’, the less said the better, but it unfortunately set in motion a very unfortunate chain of events. It would be, in my view, unfair for the applicant to be liable for these costs. After giving the matter extensive thought I am of the view that the only appropriate order would be that the applicant’s attorneys, Surendra Singh and Associates, be directed to pay the costs incurred in respect of the appearances on 22 and 25 September 2024 de bonis propriis but only on scale A.”

Conclusion

Not too long ago the very thought of using a search engine to find case law to prepare for trial would have been unimaginable. Today there are various AI technologies that can go a step further by collating those search results to form comprehensive legal arguments. But litigants take heed. When it comes to legal research, AI goes hand in hand with “a dose of good old-fashioned independent reading”, as the learned judge put it in the Mavundla matter. Ultimately, the courts will always look to the legal professionals appearing before it – not the search engines behind them.

ENDS