A judge of the Gauteng High Court has said he will forward a judgment to the Legal Practice Council after eleven citation discrepancies, including one case that does not exist, were identified in an acting judge's reasons

What the case was about

The underlying dispute is a maintenance fight between divorced parents over which school two children attend. The father applied urgently to move them to a cheaper school; the mother counter-applied to keep them where they were and for arrear private school fees of R 277 078.50. The High Court dismissed his application and granted hers.

When the father applied for leave to appeal, that order was suspended. The mother obtained an order under Section 18(3) of the Superior Courts Act 10 of 2013 enforcing it pending appeal. The father then exercised his automatic right of urgent appeal under Section 18(4). That appeal is what the Full Bench heard.

The appeal was dismissed with costs, including those of two counsel where so employed, on Scale C.

How the citation problem surfaced

Shortly before the hearing, the appellant filed a supplementary note drawing attention to discrepancies in the acting judge's reasons on the leave to appeal and Section 18(3) applications. Opperman J records that he asked a court researcher to verify them before the hearing.

At the hearing the respondent's legal team agreed the eleven listed discrepancies were accurately identified and described, and the judgment records that the senior librarian of the Johannesburg Society of Advocates had confirmed them independently.

The judgment tabulates them. They fall into three shapes. Sometimes the case name is right and the law report reference is wrong, so the reader searches in vain. Sometimes the case and citation are right but the quoted passage is not what that case says, with material from a separate uncited judgment tacked on. Sometimes neither name nor citation corresponds to any reported case.

One case in the table is described flatly as not existing: Lubbe v Volkswagon SA [2023] 4 All SA 289 (C), relied on in five paragraphs of the reasons below. A second entry says a citation given for a Premier of Gauteng judgment does not exist and supplies the correct one.

Counsel who appeared below, Ms K Mitchell, was cleared. The court records that the incorrect references did not appear in her heads of argument, that she was not their source, and that the errors cannot be attributed to counsel.

The two judgments do not say the same thing

This is the detail most likely to be lost in secondary coverage. Wright J, with Mahosi J concurring, wrote the first judgment and dealt with the point in a single paragraph: it was argued that the acting judge made errors possibly caused by a misapplication of AI, but he did not find it necessary to enter the lists about AI and refrained from doing so.

Opperman J agreed with the order and wrote separately because he could not agree with the route. The citation analysis, the comparative survey and the referral all sit in that separate concurring judgment.

He makes no finding that AI was used. He writes that the most plausible explanation, certainly for the fictitious Lubbe reference, is the product of AI and what has been dubbed hallucinations, and then says he makes no finding on whether AI was used because it would be improper to canvass explanations with the acting judge privately.

He also says what would have followed had the position been provable. Had he been able to conclude that the reasoning was AI-generated and the true decision maker was a machine, he would not have hesitated to find the appellant's Section 34 rights infringed.

Why the Legal Practice Council and not the Judicial Conduct Committee

Opperman J treats the choice of forum as a real problem rather than an administrative one. Acting judges fall within the definition of judge in the Judicial Service Commission Act and within the Code of Judicial Conduct, so the Judicial Conduct Committee has jurisdiction on a literal reading, and has entertained complaints against acting judges in practice.

The difficulty is remedial. Section 177 of the Constitution, the removal mechanism, was designed for permanently appointed judges, and no equivalent exists for acting judges. The practical answer to misconduct by an acting judge is not to renew the appointment, which the judgment describes as no formal accountability mechanism at all: no sanction, nothing on the public record, and no protection against a practitioner who continues in practice after the acting term lapses.

The Legal Practice Council fills that space for a structural reason. Enrolment as an advocate or attorney is never suspended during an acting appointment, so the Council's disciplinary jurisdiction is continuous and available before, during and after the acting term.

Opperman J is careful about the reach of that conclusion. He does not suggest acting judges answer exclusively to the Council, or that the Council could not later refer the matter on to the Judicial Conduct Committee, and he says the jurisdictions run concurrently. He also says that, as a matter of constitutional principle, the Judicial Service Commission ought to have express jurisdiction with a sanction that survives the expiry of an acting term, and that this is the law as it should be rather than the law as it is.

The comparative and domestic material the court relied on

The judgment surveys four jurisdictions and reports finding no case in the United Kingdom, Canada, Australia or the United States in which a judge delegated legal reasoning or the outcome of a case to generative AI. The best known instance of judicial use, Lord Justice Birss using ChatGPT to summarise an area of law, is treated as the opposite of this case: a drafting aid, verified, with responsibility retained.

The Supreme Court of India's decision in Singh is quoted at length for the proposition that a decision resting on fake or hallucinated material is no decision in the eyes of the law, irrespective of whether the material had a direct or indirect bearing on the outcome.

Domestically, the judgment records that this Division invests in an induction programme in which acting judges are cautioned to use AI with extreme circumspection and not to rely on it for citations, summaries of cases or unverified sources, and are pointed to the UK judicial guidelines and UNESCO's guidelines because South Africa does not yet have its own.

It also records resolutions of the 2026 South African Judiciary Conference, including that the Judiciary Administration and Information Technology Steering Committee would finalise a draft AI policy defining, with specificity, the permissible and prohibited uses of AI across administrative and adjudicative functions.

What we did not verify

We opened and read the full SAFLII text of [2026] ZAGPJHC 875, including the first judgment of Wright J, the separate concurring judgment of Opperman J, the discrepancy table and the footnotes.

We did not open the judgment of the acting judge below, the supplementary note filed by the appellant, the Judicial Service Commission Act, the Legal Practice Act, the Code of Judicial Conduct, the Superior Courts Act, or the Indian Supreme Court decision in Singh. Every characterisation of those documents here is how this judgment describes them.

We will not claim that AI produced the citations, because the court expressly declined to find that. We will not claim that the acting judge has been found guilty of anything: the concurring judge states that what is recorded is not a finding of the Court but observations to be investigated. We also cannot confirm that the judgment has in fact been sent to the Legal Practice Council, or that any investigation has opened, since the judgment records only an intention to forward it.

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