With the rapid development and implementation of artificial intelligence ("AI") tools across various sectors, the dangers of relying on AI without verifying the correctness of the AI-generated information was highlighted in the recent case of Mavundla v MEC: Department of Co-Operative Government and Traditional Affairs KZN and Others.
Background facts
A candidate attorney drafted the applicant's supplementary notice of application for leave to appeal ("the notice"). Several references to case authorities in support of the submissions made in respect of the grounds of appeal were contained in the notice. The candidate's attorney was unsupervised when drafting the notice.
The applicant's grounds of appeal were based on the judge's alleged incorrect findings in respect of joinder and service. It turned out that most of the cases cited in the notice did not exist.
Most of the cases could not be found in the South African Law Reports, nor on the South African Legal Information Institute's website. The Judge requested two researchers employed by the court to provide the cited cases. Of the nine cases cited, only two were found to exist, with the citation of one of the cases being incorrect.
The opportunities to find the case law
The judge wanted to afford the applicant's counsel an opportunity to provide the authorities she relied on and requested the authorities to be provided in an email on 18 September 2024. Counsel for the parties then appeared before the judge on 20 September 2024 and the applicant's counsel applied for an adjournment as she was unable to source the cases. The candidate attorney then appeared before the judge and informed the judge that she obtained the cases from the law journals by doing research through the UNISA portal.
The matter stood down, the judge afforded the applicant's counsel and the candidate attorney another opportunity to provide the relevant cases. Upon resumption, the proprietor of the applicant's firm of attorneys appeared before the judge. The attorney explained that he was unable to draw the cases from the High Court's library as the librarian requested him to pay for copies of the cases.
In a final attempt to afford the applicant's counsel and attorneys the opportunity to present the authorities, the judge adjourned the matter to 25 September 2024. On the return date, the applicant's attorney appeared before the judge and explained that he was unable to present the authorities.
Court's findings
In terms of the Code of Conduct for All Legal Practitioners, Candidate Legal Practitioners and Juristic Entities ("the Code"), legal practitioners bear the duty to avoid misleading a court in respect of facts, questions of law and what is in the papers before a court. A judge is entitled to take a legal practitioner at their word. Where authorities are cited, there is a tacit representation that no contradictory authority is known to exist. The court expanded on this principle to include that a court should be able to assume and rely on a practitioner's tacit representation that the authorities cited and relied upon do exist.
Not only do admitted practitioners bear the duty to always act with honesty, candour, and competence towards a court, but this duty also extends to candidate legal practitioners. Given that most of the cases cited in the notice did not exist, there were doubts that the candidate attorney's contention that she perused the law journals were truthful. This raised questions about the candidate attorney's conduct, which is for the Legal Practice Council ("LPC") to investigate and consider.
The court aligned with the works of Professor M van Eck and the view that the duty to act honestly and with integrity results in the duty to not use false information. The duty to not mislead the court deliberately and misleading through mistake, ignorance and carelessness should differ. However, all types of misleading are serious breaches of the professional conduct expected of a legal practitioner. Ignorance of the risks of AI is not an excuse for failing to comply with the ethical and professional duties of the practitioner.
Professor van Eck is of the view that legal practitioners are required to research the law and present an honest account of the law. Presenting non-existent case law to the court does not constitute an honest account of the law. The court concurred with this view.
The Code provides that legal practitioners are to exercise proper control over their staff. Professor van Eck's view is that this includes the verification of the accuracy and correctness of any information sourced from AI systems by staff, including candidate legal practitioners. The court agreed with this view.
A legal practitioner is responsible for the verification of the information used in court, regardless of the source of the information. The failure to do so may result in a breach of ethical and professional duties, ultimately leading to sanctions and disciplinary action against the practitioner.
Following a brief experiment, which revolved around entering one of the non-existent cases cited in the notice into ChatGPT, the AI tool confirmed its existence despite the case not existing. This confirmed the unreliability of using ChatGPT as a source of information and legal research. In the words of the court, "Reliance on AI technologies when doing legal research is irresponsible and downright unprofessional".
Conclusion
The applicant's counsel ought to have checked the authorities cited in the notice The attorney ought to have checked the candidate attorney's work, the notice would then never have made it beyond the draft stage. This did not occur. Accordingly, a costs de bonis propriis (personal cost order) order against the applicant's attorneys in respect of the appearances to verify the existence of the case law was made. The judge requested the registrar to send a copy of the judgment to the LPC for its attention and further action. The application for leave to appeal was dismissed with costs on scale C.
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