An acting judge in the Gauteng High Court (Johannesburg) will have to explain himself to the Legal Practice Council (LPC) for possibly using AI in writing a judgment which contained at least 11 ‘hallucinations’.

His judgment – in a dispute between warring parents over where their children should be schooled – recently came before three judges on appeal, reports GroundUp. Judges Gregory Wright, Daphny Mahosi and Ingrid Opperman turned down the appeal, finding that Acting Judge Themba Khaba had been correct in his eventual findings.

However, Judge Opperman, in a separate ruling, took Khaba to task for his citations of non-existent or completely irrelevant case law. 

While Khaba is not named in the ruling but only identified as the acting judge, the judgment under appeal is available publicly under his name. 

Opperman detailed all 11 ‘discrepancies’ which, she said, had been brought to the attention of the appeal judges by lawyers for the appellant (the father) and which had been confirmed by a senior librarian at the Johannesburg Society of Advocates.

She said Khaba had, in some instances, used the correct name of a case but the wrong citation. In other instances, the correct case number and reference was given but the passage quoted was incorrect.

The judge said she was dealing with the issue ‘at face value’ without discussing it with Khaba, because it should not be handled through private discussions in judicial chambers away from the scrutiny of the litigants and their representatives.

Opperman said she had not been able to find any reported authorities in SA or in most other countries in which a judge or acting judge – as opposed to lawyers and litigants – had been found to have used AI in their rulings.

Opperman detailed the steps being taken by the judiciary in SA to draft an AI policy to take advantage of the significant opportunities it presents, while guarding against the risks to the administration of justice.

She said counsel for the appellant had argued that whatever the reason for the discrepancies, it was clear that the acting judge had not properly considered the judgments he cited and had misapplied the law to the facts, according to GroundUp.

It was argued that application should be heard afresh.

Opperman said non-existent cases were not law: ‘Jumbled together quotes from cases, some identified, some not, are not law…’

She said the acting judge 'has to be heard and due process is to be followed in this regard’.

She said the order granted by the acting judge merely preserved the status quo that the children could remain at their present school. However, Khaba needed to answer for what could amount to professional misconduct.

The JSC had no authority over acting judges because it was not involved in their appointments, said Opperman.

‘Within the law as it stands, the LPC is the most effective available forum. I do not suggest that acting judges answer exclusively to the LPC, nor that once the LPC has completed its investigations, it would be precluded from referring the matter to the JSC's Judicial Conduct Committee. In my view the LPC’s jurisdiction runs concurrently with that of the JSC.'

She said she would forward her judgment to the LPC for ‘investigation’.

Full GroundUp report