South Africa

Cannabis is once again in the news in South Africa, with the recent announcement by various government departments of a national cannabis master plan to establish a formal cannabis and hemp industry. At the same time, the government has a long-standing commitment to protecting its local biodiversity, which is embodied in the National Environmental Management: Biodiversity Act 10 of 2004 (the NEMBA). Among its other functions, the NEMBA serves to regulate biotrade and bioprospecting by means of a permit system. Conducting bioprospecting or biotrade activities without a permit is an offence, and can result in a fine of up to ten million Rand and/or imprisonment for up to ten years. The permit process itself is quite involved and requires, among other things, the conclusion of suitable Material Transfer Agreements (MTAs) and Benefit Sharing Agreements (BSAs) with any access providers and/or traditional knowledge holders relevant to that specific instance of biotrade or bioprospecting. To understand when the NEMBA is in play, one must conduct a three-fold enquiry: Firstly, is the activity bioprospecting as understood by the Act? Secondly, is the bioprospecting activity being done with an Indigenous Biological Resource (IBR) in terms of the Act? Finally, are there any exemptions or exceptions which would exclude that particular IBR from the operation of the Act? For the first enquiry, “bioprospecting” in relation to IBRs means any research on, or development or application of, IBRs for commercial or industrial exploitation. In practice, this is broad enough so that almost any activity related to IBRs which has a commercial aim in mind counts as bioprospecting. For the second enquiry, IBRs include any indigenous animal, plant or other organism of an indigenous species (whether living or dead), as well as any derivatives thereof, including compounds or genetic material derived from such an indigenous species. It also includes cultivars, strains, derivatives, hybrids or fertile versions of indigenous species, as well as exotic species which have been altered to include genetic material or compounds found in any indigenous species. In general, anything which flows from an indigenous species may be considered an IBR. And here, since the definition of an “indigenous species” in terms of the NEMBA means a species that occurs, or has historically occurred, naturally in a free state in nature within the borders of the Republic, but excludes a species that has been introduced in the Republic as a result of human activity, we finally arrive at the impact on cannabis and hemp.  Cannabis, although extensively cultivated, is one of those plants that can survive on its own in nature (the name ‘weed’ is very apt here). It was also introduced into the country far enough in the past that the exact mechanism for its arrival is uncertain, with the tentative scholarly consensus being that Arab traders may have introduced it in the 1300s. In such circumstances, there is a possibility that Department of Forestry, Fisheries and the Environment (DFFE) may take the view that cannabis is an IBR. For the final leg of the enquiry, we look to exclusions. The NEMBA currently excludes genetic material of human origin, exotic plants and animals other than those mentioned above, and IBRs listed in the International Treaty on Plant Genetic Resources for Food and Agriculture (the Treaty). The Minister also has the power to exempt specific species and activities by way of notice, something which has already been done for species used in the international cut flower and ornamental plant markets. At present, the Treaty does not list cannabis, and we are unaware of any notice by the Minister declaring an exemption for cannabis or hemp. Such an exemption may well be a logical next step if the intention by government is to create a formal cannabis and hemp industry on a mass scale. Alternatively, should government wish to compensate local communities for the potential value inherent in the local landraces and the traditional knowledge now associated with them that have been developed in South Africa over time, then a clarification of the status of cannabis as an IBR in terms of the NEMBA would be welcome. Meanwhile, it remains to be seen how the cannabis industry as a potential source of IBRs will progress. We will continue to monitor developments and provide updates as they arise.

Artificial intelligence is no longer a future concept in Africa. It is here, it is being used, and it is now reshaping regulatory agendas and courtroom practice across the continent.  Over the last two years, we have seen a decisive shift in how African governments approach AI. What was once discussed in policy workshops and position papers has moved firmly into national strategies, draft legislation, and judicial scrutiny. A major catalyst for this shift was the African Union’s Continental AI Strategy, adopted in July 2024. This strategy provides a unified roadmap for AI development across Africa for the period 2025 to 2030. It sets out a shared framework for innovation, data governance, risk mitigation, skills development, and investment, and it now operates as an umbrella under which national AI approaches are being developed or aligned. In practical terms, this means that African states are no longer regulating AI in isolation. Instead, they are increasingly coordinating their approaches, ensuring a degree of consistency across member states while still responding to local priorities. National AI Strategies: Momentum across the continent At a national level, the pace of development has been striking: – Kenya has taken a leading role, launching its National AI Strategy in March 2025, positioning AI as a key driver of economic growth and public sector reform. Zambia followed closely behind, rolling out its own strategy in late 2024, developed with support from the United Nations and the Tony Blair Institute. In Central Africa, Cameroon unveiled an ambitious National AI Strategy in 2025, with a strong emphasis on local language models and sovereign AI development. South Africa, meanwhile, has taken its first formal steps toward comprehensive AI legislation and is on the verge of circulating a draft AI policy for public comment (after having published its Draft AI Policy Framework in October 2024). While this is not yet an AI Act, it clearly signals the direction of travel and would place South Africa among the first African jurisdictions with a fully developed AI regulatory regime. AI governance in South Africa has also been reinforced through the new King V Code, which explicitly positions artificial intelligence within corporate governance structures. Principle 10 requires boards to exercise oversight over data, information, technology and AI, embedding AI governance at board level and reinforcing the broader regulatory trajectory. Elsewhere on the continent, Ghana has finalised its National AI Strategy, with enabling legislation now anticipated, while countries such as Mozambique and Mauritius are progressing through structured consultation processes to shape their own frameworks. Taken together, these developments reflect a continent actively building the regulatory scaffolding needed to adopt AI responsibly, competitively, and with accountability. Policy Meets Practice: AI in the Courts This policy landscape forms important context for what is already happening in African courts. Across the continent, judges are being confronted with artificial intelligence not as a theoretical construct, but through real disputes and real misconduct that test professional ethics and the integrity of judicial processes. In South Africa, the most prominent example remains the Pietermaritzburg High Court decision in Mavundla v MEC: Department of Co-Operative Government and Traditional Affairs KwaZulu-Natal and Others. There, Judge Bezuidenhout refused leave to appeal after discovering that seven of the nine authorities cited in the applicant’s submissions were entirely non-existent, apparently generated by an AI tool. The court described the conduct as “irresponsible and downright unprofessional” and referred the matter to the Legal Practice Council. It remains the clearest example to date of AI hallucinations contaminating court filings in Africa. Crucially, however, Mavundla was not an isolated incident. In Northbound Processing (Pty) Ltd v South African Diamond and Precious Metals Regulator and Others, decided on 30 June 2025, Smit AJ delivered another early judicial warning about the misuse of AI in legal practice. Several authorities cited in the applicant’s heads of argument were again found to be fictitious. Upon investigation, the court determined that the fabricated citations had been generated by an AI tool known as “Legal Genius”. Counsel conceded that time pressure and inadequate verification, not bad faith, had led to the inclusion of incorrect authorities. But the court made its position unambiguous in stating that such conduct is unacceptable. The judicial message has been consistent and increasingly firm: lawyers may use AI tools, but they remain personally responsible for every authority they cite. Persuasive writing is no substitute for authentic sources, and AI outputs must always be independently verified. These judgments are shaping the ethical baseline for AI use in legal practice in South Africa. A Continental Pattern South Africa is not alone in confronting these issues. In Kenya, the judiciary reached a similar inflection point in 2025 after submissions were filed containing entirely fabricated authorities. A Supreme Court judge publicly warned both judges and practitioners against using generative AI tools in court proceedings until formal guidelines are in place, citing the reputational and procedural risks when AI-generated errors make their way onto the record. In Ghana, legal commentary has echoed the same concerns, warning that the use of unverified AI content in court could amount to professional misconduct, deception of the court, and potentially even negligence. What is emerging is a recognisably global pattern. Courts, often ahead of legislators, are setting practical rules for AI through the cases that come before them. The Takeaway Across the continent, the message from both policymakers and judges is consistent. AI is here to stay, and it can be a powerful tool when used properly. But it does not replace professional judgment, ethical obligations, or fundamental duties to clients and the courts. As Africa’s AI regulations continue to take shape, these early court decisions offer a clear preview of how responsibility will be assessed in practice. The technology may be artificial, but accountability remains entirely human.

The judgment of the Free State Division of the High Court, delivered on 19 March 2026, serves as a compelling reminder that the decisions of professional regulatory bodies are not beyond scrutiny. The case concerned a Rule 53 review application brought by the applicant, a qualified accountant and Associate General Accountant member of the South African Institute of Chartered Accountants (“SAICA”), against the decision of SAICA’s Professional Conduct Committee (“PCC”). Brief summary of facts The applicant practised as an accountant and general tax practitioner in Bloemfontein. In April 2021, the second respondent, a company represented by its chief executive officer, appointed her to provide accounting and tax consulting services. The mandate was terminated in November 2022, and following a breakdown of the trust relationship, the applicant ceased all further services. On 11 May 2023, SAICA notified the applicant that the second respondent had filed a complaint against her, alleging that she had handled the management and control of the second respondent’s payroll system in an unprofessional and inadequate manner. Specifically, it was alleged that she was responsible for the payroll system and had only loaded eight employees onto the FNB payroll platform whilst the second respondent employed twenty-eight employees. The applicant’s consistent case was that the management and control of the payroll were never her responsibility. According to her evidence, the second respondent’s chief executive officer himself dealt with the payroll on an Excel spreadsheet, which he would send to her solely for the purpose of generating payslips. She further explained that after loading the first eight employees onto the FNB platform, she discovered it did not meet the required specifications, and it was abandoned. Her version was supported by contemporaneous WhatsApp messages and pre-complaint correspondence from her attorneys. On 14 November 2023, a disciplinary hearing was conducted before the PCC, which found the applicant guilty of punishable conduct for failing to administer the second respondent’s payroll system and sanctioned her accordingly. Issues for determination The review application was brought in terms of the Promotion of Administrative Justice Act (“PAJA”), as SAICA exercises a public power in regulating the accounting profession. The principal issues were: first, whether the PCC proceedings were procedurally fair, particularly whether the applicant was adequately informed of the charge and whether the PCC decided the matter on the same basis as the charge put to her; second, whether the PCC properly applied the balance of probabilities test when confronted with two conflicting versions; third, whether the decision was rationally connected to the information before the PCC; and finally, whether the matter ought to be remitted to SAICA or whether the Court should substitute its own decision. The court’s conclusions and reasons On procedural fairness, the Court held that the PCC decided the matter on a distinctly different premise from the original charge. The complaint alleged that the applicant was responsible for managing and controlling the payroll system, yet during the hearing, the line of questioning by panel members shifted towards whether the applicant had a duty to identify and rectify payroll mistakes — an issue never forming part of the charge. The Court emphasised that section 3(2) of PAJA requires adequate notice of proposed administrative action, and at common law a person facing disciplinary proceedings is entitled to have the charge formulated with sufficient particularity. This marked shift in ground violated the procedural fairness of the proceedings, constituting a ground of review under section 6(2)(c) of PAJA. On the balance of probabilities, the Court noted that SAICA’s own By-Law required the civil standard of proof and that SAICA bore the burden of proving that the complainant’s version was more probable than the applicant’s. The PCC gave no reasons for its decisions and there was no record of deliberations evaluating the probabilities. Whilst acknowledging that an administrative decision-maker is not expected to assess evidence with the same rigour as a court, the Court held that the PCC was nonetheless obligated to determine the probabilities, particularly when confronted with two mutually destructive versions. The failure to do so constituted a material error of law and a valid ground for review under PAJA. Regarding rationality, the Court found no rational connection between the impugned decisions and the evidence before the PCC. The applicant’s uncontradicted evidence was that she was solely responsible for generating payslips and not for managing the payroll system, supported by contemporaneous WhatsApp messages and pre-complaint correspondence. Even the prosecutor on behalf of the Secretariat conceded during the hearing that the applicant was not responsible for the payroll system in totality, yet the PCC gave no indication of having considered this concession. On remedy, the Court declined to remit the matter and instead substituted its own decision, holding that all evidence was already before the Court and that remittal would serve no useful purpose as the outcome was a foregone conclusion. The PCC’s decision was reviewed and set aside and substituted with a finding that the applicant did not contravene any of SAICA’s By-Laws or its Code of Professional Conduct. The regulatory significance of this judgment This judgment is significant for the regulation of professionals in South Africa. It affirms that the disciplinary decisions of professional regulators constitute administrative action subject to judicial review under PAJA, ensuring that members have recourse to the courts where proceedings are conducted unfairly or irrationally. For members of professional bodies, this judgment stands as a powerful encouragement that where the facts necessitate a challenge, regulatory decisions should not be accepted without question. Judicial review provides an effective and necessary mechanism to vindicate the rights of affected professionals and serves as a vital check on regulatory overreach, reinforcing the rule of law in the regulation of professions.  

INTRODUCTION In a recent Johannesburg High Court judgment, the plaintiff, Karanie, instituted action against the life insurer, the defendant, in December 2012 for payment of benefits allegedly due under a life insurance policy. The Defendant defended the action and filed a counterclaim to recover payments already paid under the policy. The matter was then enrolled for trial on 4 May 2015. The case was, however, postponed to a future unknown date with the Plaintiff being ordered to pay the costs for postponement. The costs were then taxed, but the Plaintiff failed to pay these taxed costs. For several years, the Plaintiff took no meaningful steps to advance the matter and the matter remained dormant. In 2023, the court stayed the proceedings pending the payment of the taxed costs. Despite an undertaking in 2024 to settle the costs, the Plaintiff still failed to do so, leaving the matter effectively stalled and incapable of progression. The Defendant consequently applied for dismissal of the Plaintiff’s claim due to inordinate delay and failure to prosecute. The question before the court was whether it should exercise its discretion and dismiss the Plaintiff’s claim for want of prosecution. THE LAW & THE REQUIREMENTS FOR BRINGING SUCH AN APPLICATION The court confirmed that courts have inherent jurisdiction to dismiss the action for want of prosecution. However, the power should still be used sparingly. The court referred to the case of Cassimjee v Minister of Finance wherein the Supreme Court of Appeal held that the following requirements must be present: There should be a delay in the prosecution of the action. The delay must be inexcusable. The Defendant must be seriously prejudiced by such delay. The court stated that this will involve a close examination of all the relevant circumstances and these include the length of the delay, the reasons thereof and prejudice caused. The court confirmed that no hard-and-fast rules and nor is a single factor decisive. All the relevant factors should be weighed together holistically. FINDINGS OF THE COURT The court held that the requirements for dismissal for want of prosecution were satisfied and exercised its discretion to dismiss the Plaintiff’s claim. The court first made it clear that even where delay is inordinate, the application will not succeed in the absence of serious prejudice to the defendant. However, in the present case, prejudice to the Defendant was not only “real but substantial”. More than thirteen years had elapsed since the institution of the action, and nearly eleven years since the matter was last enrolled for trial. During this period, the plaintiff took no meaningful steps to advance the proceedings. The explanations advanced by the Plaintiff were found to be inadequate and unsupported by the objective facts. The Court emphasised the Plaintiff’s persistent failure to comply with the costs order, which resulted in a stay of proceedings and rendered the action incapable of progression. The Court found that the Defendant had suffered serious prejudice, as the claim arose from events dating back to 2009, and the passage of time had adversely affected the availability and reliability of evidence, especially expert testimony. The Defendant also faced ongoing uncertainty due to the unresolved claim and was procedurally constrained from progressing the matter while the stay remained in place. CONCLUSION The decision illustrates a compelling and justified application of the Court’s discretion in circumstances of prolonged and unexplained delay. Several years had passed without any concrete progress being made and without justified reasons. Litigants should not be prejudiced by inordinate delays. The Defendant did everything on its part to comply with court procedures, however, the same was not done by the Plaintiff. Since the Plaintiff did not comply with the costs order and the proceedings were stayed as a result thereof, the Defendant was also not able to finalise its counterclaim. Therefore, the continued existence of the action is inconsistent with fairness and proper administration of justice, as the delay was evidently inordinate, Inexcusable and prejudicious to the Defendant. Article authored by: Sifiso Dlamini, Candidate Attorney in the Insurance & Financial Services department Article guided and reviewed by: Mtho Maphumulo, Partner in the Insurance & Financial Services department