Artificial Intelligence v Legal Practitioners in South Africa
By John Mankoe and Christopher Majuru
In the recent judgment of Michelle Parker v Amanda Forsyth N.O. and others, the court had to determine whether a body corporate could sue and be sued for defamation and iniuria (compensation of damages caused to a person). Ms Parker, a former trustee of the body corporate instituted legal proceedings against her co-trustees for an email which contained statements that she alleged were defamatory of and insulting to her.
The email in question was sent by the first co-trustee, and in arguing that the second to fourth trustees should be found liable, Ms Parker claimed that they had failed to address the contents of the email or deny the alleged defamatory statements, and consequently associated themselves with the contents of the first co-trustee’s email. The co-trustees denied the allegations.
Ms Parker claimed that the co-trustees were liable, in their official capacities as trustees of the body corporate, for payment of R350 000.00 for defamation and R250 000.00 for iniuria.
The second to sixth co-trustees, excepted to Ms Parker’s combined summons. The notable exception raised was that Ms Parker’s claims did not fall within the ambit of permitted claims which could be instituted against a body corporate as prescribed by section 2(7)(d) of the Sectional Titles Schemes Management Act No, 8 of 2011 (“the Act”). In the circumstances, the argument advanced was that Ms Parker’s combined summons failed to disclose a cause of action.
Ms Parker’s legal representatives counter-argued that her claims for defamation fall within the ambit of section 2(7)d) of the Act as the trustees were acting in their official capacities.
Section 2(7)(d) of the Act provides that a body corporate is capable of suing and being sued in respect of any matter arising out of the exercise of any of its powers or the performance or non-performance of any of its duties under the Act or any rule. Ms Parker specifically relied on the legislature’s use of the words “any matter” and contended that the words must be given their ordinary meaning and be interpreted to include as many causes of action that could be classified under the section, rather than restricting them.
The court found that section 2(7)(d) of the Act did not find application in this matter as actions for defamation and iniuria are inconsistent with the peculiar nature and purpose of a body corporate. Even if it was wrong in this approach, the court held that the built-in qualification “any matter” must be in relation to a matter “arising out of the exercise of any of its powers or the performance or non-performance of any of its duties under the Act or any rule.”
In relation to the issue of costs against Ms Parker, the court took a dim view on the careless approach taken by her legal representative in citing unverified case law in his heads of argument. Ms Parker’s legal representative had suggested, in his heads of argument, that there was authority in the form of case-law in terms of which the question of whether a body corporate could be sued for defamation had been decided.
In light of the question being a novel one, that could be dispositive of the entire action, the court requested both parties to make a concerted effort to source the authorities. The hearing was postponed for this purpose to 22 May 2023. Prior to the hearing, Ms Parker’s legal representatives sent a list of authorities in support of their defamation claim to the co-trustees’ legal representatives.
Upon canvassing whether such authority exists, both parties’ legal representatives submitted that they were unaware of any authority to this effect.
On 22 May 2023, Ms Parker’s legal representatives conceded that the authorities it sourced were through an AI chatbot named ChatGPT. They had used the AI to conduct legal research, accepted the results without scrutiny and in fact, the list of authorities identified by ChatGPT did not exist. The names and citations, facts and decisions of the authorities were all fictitious. Consequently, the court ordered, amongst other things, punitive costs against Ms Parker.
Whilst AI is a welcome tool for use in the legal profession, it does not replace the need for legal practitioners to independently verify, question and research case law. AI must look to compliment a legal practitioners’ skills to make it more cost-effective.