Tech Trends Affecting the Practice of SA Law
Advancement of Human Dignity using Legal Tech
When the Constitution was assented to in 1996, it became the prism against which all law in South Africa could be measured. With the rise of automation, the Fourth Industrial Revolution and Web 3.0, how can we leverage technology in order to deal with complexities in the legal sector in the advancement of the promises of our “new dispensation”?
In principle, everyone should have equal access to the law through the judiciary, particularly given our country’s historical context, that is not the case, however. Costs of litigation against indigency, inaccessibility of legal remedies and illiteracy worsen the situation. The promise of Information Communication Technology (ICT) in this context is to bridge the “digital divide” and support the South African government in the advancement of equality.
Legal information should be public knowledge, available for free, and historically in South Africa and many many other countries this hasn’t been the case because of commercial monopolies on legal knowledge and the high costs associated with maintaining free databases of legal information – Web 3.0 will change this.
Web 3.0 is the next wave of internet technologies that will enable a truly peer-to-peer (P2P) distributed web, as originally envisioned by the inventor of the web, Tim Berners-Lee in 1989. Web 3.0 requires a fundamental paradigm shift: It empowers communities like the Free Access to Law Movements to develop Legal Information Systems that empower users to browse the web securely and anonymously, leveraging Blockchain and other P2P technologies that are not dependant on central authorities that decipher, traffic and analyse user data e.g.: Facebook, Governments and Credit Card Companies.
The dissolution of these central mega-databases as the Free Access to Law Movement scales will lead to systematic changes in the practice of surveillance by the private sector and government, mainly because P2P technologies will make it incredibly difficult to collect personal data on citizens. These technologies would particularly empower citizens living under oppressive regimes.
African Cultural Rights, Customary Law and Tech
In African Customary Law, for instance, dispute resolution takes place in traditional courts. This practise goes back centuries, and embodies the philosophic tradition of Ubuntu: The idea that there exists a “we-consciousness” amongst Africans that allows us to collectively defeat any existential threats - but here is where tradition and modernity clash: How can citizens practising customary law leverage technology to overcome challenges in the rural context?
Efforts are also underway to do away with socio-cultural phenomena such as patriarchy, which entail the practice of ulwaluko (circumcision), lobola, ukuthwala, and other cultural practices such as polygamy, virginity testing, etc.
These practises expose the technical difficulties in the application of the intersecting legal traditions that have come to form South African Law: Roman-Dutch Law, International Human Rights and African Customary law. The intersection of these traditions makes it difficult to deal with the messy elements of Customary Law and the protection of the rights of vulnerable groups in the rural context: How can technologies be leveraged to deal with these complexities?
Big Infrastructure Projects are not Enough
Our government has also been trying hard in recent years to enforce the rights of these groups through large infrastructure projects, urbanisation of rural areas, commercialisation of agricultural land, the building of roads, etc. There is no doubt that President Cyril Ramaphosa will speak around the importance of these projects in his State of the Nation Address. However, all these transactions require legal facilitation, and legal practitioners (public and private) are always needed in these complex scenarios. Technology innovation could have a huge impact on the practice of law and the governance of the companies involved in these projects. A practical example would be the implementation of a conflict-of-interest check in government supplier databases, in order to lower corruption and nepotism.
Social Media Endeavours to Close the Gap
There has been a rise of thought leaders and “influencers” using social media to share expert opinions and prospect for clients. A successful example of this is Pierre de Vos’s Constitutionally Speaking blog.
Technology start-ups have also begun to develop open-source initiatives to enable access to the law for vulnerable groups. Edith Viljoen, a Legislative Informatician at Laws.Africa believes that the traditional approach to promoting free access to the law requires a fundamental shift: Technology affords us the opportunity to lower the costs of consolidating and maintaining up-to-date legal information. The content of the Open By-laws South Africa project was compiled using the user-friendly Laws.Africa platform, which encourages volunteer participation in contributing to and maintaining our shared legal commons. Sourcing, consolidating and providing open access to the law sustainably requires new, community-driven and cooperative business models for collaboration and partnerships.
The Free Access to Law Movement
The Free Access to Law movement isn’t new, but it also isn’t slowing down, and technological advances only make it cheaper and increasingly feasible to get trustworthy, free sources of legal information to people in formats that they can use.
A great example of organisations mobilising in this movement includes the AfricanLII umbrella organisation, which provides support to individual Legal Information Institutes (LIIs) across Africa, and has produced case law indexes in Human Rights, Commercial, and Environmental law. Its case law citator allows one to search across 16 African jurisdictions and explore relationships between cases visually and easily.
These are just a handful of local examples of how technology is improving access to legal information. The more tools are developed the more obvious their value will become – we envision an entire ecosystem of tools and products taking advantage of legal information in a machine-friendly format, and accompanying job opportunities, within the next few years.Edith Viljoen, Legislative Informatician at Laws.Africa
Future Trends: Technology and the Practice of Law
Legal clerks and candidates who once used heavy law books, now have mobile apps that retrieve all legal sources from the cloud, legal research is done electronically with commercial legal research databases such as Juta and Company’s JutaStat and Lexis Nexis’s Law SA providing essential services to the functioning of the South African Court System. But what’s next?
The digitalisation and storage of case law, statutes, and regulations has also had an effect on publishing companies: South African Legal Publishing Firms like Juta and Company and Lexis Nexis are now moving to develop artificial intelligence-powered legal products that aggregate, store and provide practical solutions for legal practitioners, whilst legal textbook sales continue to decline, particularly in the student market – where many students simply can’t afford textbooks.
I had an opportunity to exchange some emails with Louis Podbielsk, an expert in Law and Technology from Lexis Nexis, and he believes there are several ways that technology disruptions are affecting the practice of law:
- Electronic research, especially with data analytics and Artificial Intelligence, is giving lawyers the ability to do faster and deeper research.
- Artificial Intelligence is being used to classify and extract terms from massive amounts of documents, e.g. contracts.
- Lawyers are using software to predict trial outcomes and to tailor their arguments to a Judge’s analysed preferences.
- Analytics on Judges is becoming so good that France has banned certain types of analytics on Judges.
Podbielsk and I would always bump into each other in the cafeteria during my time working for Juta and Company (2016 to 2018).
Cyber-crime is posing more of a threat to lawyers on two levels:
- Targeting the funds in their trust accounts
- Targeting the confidential information held electronically on the firm’s servers and in the cloud. Hackers recently coordinated a major security attack on the City of Joburg in October 2019, that compromised the entire city’s online services.
So lawyers and developers have to work together to take pro-active security measures to counteract these threats.
Law as an online subscription service has also disrupted the practice of law in America and Asia, where clients can sign into “virtual offices”, where a lawyer can coordinate the entire case remotely using video conferencing software.
From 1960s movie depiction of works such as Stanley Kubrick’s 2001: A Space Odyssey, the 1970s Lewis Gilbert, James Bond in Moonraker, Terminator, and the saga of the Star Wars from the 70s to the present: All depicted futuristic scenarios challenging our imagination and how society will deal with ethical and legal issues, but technology is catching up so these scenarios are fast becoming an acceptable reality; these fictional movies introduced us to the use of computers, compact disks, robots, spacecraft and interplanetary lightspeed hyper travel; who can say what the future holds?
I predict courtroom scenarios in 2030 where judgments are made in real-time across geographies. Perhaps the judges of our Constitutional Court will use tablets and encrypted chat messaging apps to come to majority judgments. How has technology affected your experience with the law? Let me hear what you have to say in the comment section below and don’t forget to subscribe to our blog HERE.