- On appeal, at least 11 fictitious or incorrect legal citations were found in an acting judge’s judgment.
- Judge Ingrid Opperman, one of three judges hearing the appeal, said the errors were consistent with possible AI “hallucinations” and has referred the matter to the Legal Practice Council for investigation.
- The ruling also highlights a gap in judicial accountability, with acting judges not clearly subject to the Judicial Service Commission’s disciplinary processes.
An acting judge in the Johannesburg High Court 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 in an appeal. 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.
Judge 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.
Another example “that stands out” was the non-existent case of Lubbe v Volkswagen SA. The most plausible explanation for this “is that it is the product of the use of AI and what has been dubbed “hallucinations”, Judge Opperman said.
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.
“I make no finding on whether AI was used …. nevertheless I am compelled to explain the implication of the use of AI and its impact on independent judicial reasoning or, as it has been termed, ‘the erosion of independent judicial reasoning’.”
Judge Opperman said she had not been able to find any reported authorities in South Africa 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.
“The most widely cited example is Lord Justice (Colin) Birss of the (England and Wales) Court of Appeal who publicly disclosed that he had used ChatGPT to produce a summary of an area of law while drafting a judgment,” she said.
Birss had described the tool as “jolly useful” but expressly stated that he had only used it as a drafting aid in his research, which remained subject to judicial verification.
Judge Opperman detailed the steps being taken by the judiciary in South Africa 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. 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.
“Had I been able to conclude that the reasoning in the judgment was AI-generated and the true decision-maker was a machine, I would not have hesitated to conclude that the appellants’ rights were infringed. To divert the decision-making responsibility to a robot, breaches not only the oath of office, but denies a party the right to be heard by a court.
“But the acting judge has to be heard and due process is to be followed in this regard.”
She detailed the ongoing litigation between the parents. Though the father was wealthy, he had unilaterally stopped paying his children’s private school fees. He had launched an urgent application in November 2025, “while boarding a business class flight to Europe to watch the Springboks play against Ireland”.
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.
Accountability gap
The Judicial Service Commission (JSC) had no authority over acting judges because it was not involved in their appointments, said Opperman.
“The practical reality is that the easy answer to misconduct by an acting judge is simply not to renew their appointment. However, that is not a formal accountability mechanism. It does not impose a sanction and place its findings on the public record and offers no protection to the public against a practitioner who continues in legal practice.”
This gap in accountability has never been resolved by legislation or authoritative judicial decision. As a constitutional principle, an acting judge exercising judicial authority ought to be accountable to the JSC.
However, said Opperman, an advocate or an attorney who is appointed as an acting judge does not cease to be an enrolled practitioner with the LPC, which has disciplinary jurisdiction over them.
“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”.
- This article was originally published by GroundUp. It is republished by TechFinancials under a Creative Commons Attribution-NoDerivatives 4.0 International Licence. Read the original article
