The reliance on AI in legal research comes under fire as a judge questions the validity of citations in a high-profile case.
THE sharp eye of a judge landed a law firm in a difficult situation when it was discovered that of the nine cases cited in their application as case law, only two could be found, leaving the strong suspicion that they had used Artificial Intelligence (AI) to source their citations.
Judge Elsje-Marie Bezuidenhout, sitting in the Pietermaritzburg High Court, not only ordered the law firm to pay the legal costs of the application from their own pockets, but she also referred the matter to the Legal Practice Council for possible investigation into the matter.
It had emerged that an articled clerk had “researched” the case law and provided it to counsel in the matter, and that the latter never checked the citations before providing them to the judge.
The issue came to light as Pietermaritzburg law firm Surendra Singh and Associates represented KwaZulu-Natal politician Godfrey Mvundla in an appeal, using Ms S Pillay as counsel.
Mvundla was suspended as mayor of Umvoti local municipality and last year successfully took the matter to court to challenge his suspension. Judge Bezuidenhout had, meanwhile, discharged the interim interdict he had obtained and rescinded the order.
Mvundla then returned to court to appeal her order. It was during these proceedings that Judge Bezuidenhout questioned the case law cited in the appeal.
“During the course of writing this judgment, it came to my knowledge that the case reference or citation for Pieterse (one of the case citations) might be incorrect. I checked my notes and asked the chief stenographer to listen to the recording, but this was the exact reference provided by Ms Pillay.
“There is no such case reported in the South African Law Reports, nor in the All South African Law Reports, and no reference to such a case could be found on the website of the South African Legal Information Institute, referred to as SAFLII.”
The judge said she then asked two law researchers at the high court to peruse the supplementary notice of appeal and to provide all the cited cases to her. “Of the nine cases referred to and cited, only two could be found to exist, albeit that the citation of one was incorrect.”
The judge said she had serious concerns and wanted to afford Pillay an opportunity to provide the authorities she relied on.
When appearing in court, Pillay applied for an adjournment as she had been unable to obtain the cases in the limited time available.
“I informed her that I could not find the cases she referred me to in court and that it appeared that the cases did not exist. She contended that the case references were provided to her by the ‘articled clerk’ employed by the firm.”
Pillay told the judge that she had not had sight of the cases as she was overbooked and worked under a lot of pressure. It then came to light that the clerk, now referred to as a candidate legal practitioner, was the person who drafted the supplementary notice of appeal.
The judge then asked that the clerk come to court to explain where she obtained the citations from. The clerk, at a later stage, explained that she obtained the cases referred to from law journals by doing research through her so-called Unisa portal.
“I asked her which law journals specifically and she could not respond. She requested an opportunity to go back to the office to look at her search history and to provide the relevant cases to me. I asked her if she by any chance used an artificial intelligence application such as ChatGPT to assist with her research, but she denied having done so,” Judge Bezuidenhout said.
The judge stood the matter down so that they could go to the high court library and draw the relevant cases and then bring it to court. When the matter resumed, Suren Singh, the proprietor of the firm, appeared in court.
He said they could not get copies of the cases as the librarian wanted him to pay for the copies, which he was not willing to do.
“He indicated that they needed time to provide me with the relevant copies of the cases cited. I indicated to him that it would be difficult to do so, as the cases did not exist. He insisted that they had in fact already found one of the cases during the adjournment.”
When Singh appeared before court again, he told the judge that as an elderly practitioner (which she took as possibly meaning ‘technologically challenged’), he had some difficulty in obtaining all the cases referred to but that he tried his best to do so, using Google.
Judge Bezuidenhout in the end found that neither the plaintiff's attorney nor counsel attempted to mislead the court.
“It seems that the attorneys were simply overzealous and careless. In this age of instant gratification, this incident serves as a timely reminder to, at least, the lawyers involved in this matter that when it comes to legal research, the efficiency of modern technology still needs to be infused with a dose of good old-fashioned independent reading,” she said.
She said had the most basic check been done on the clerk’s handiwork, the issues would have been discovered before it reached the court.
As for the clerk’s “research”, the judge said the less said the better.
She added that Mvundla should not be left out of pocket in paying for the application (as she turned down his appeal) but that the law firm had to pay the costs for two court hearings.
Cape Times