This article seeks to provide a snapshot of the state of legal tech and innovation in South Africa. The potential of legal tech and innovation to be used as a catalyst for improving access to justice will also be discussed.
The law, by nature, is traditional. Roman-Dutch law (upon which South African law is largely based) can trace its origins as far back as the 17th Century (or beyond)! This legal system, like many others globally relies, to a great extent, upon precedent (looking back) to inform it. From this perspective, it is retrogressive and traditional. Apart from content, the practice of law can also be described as traditional; the rules, procedures, attire and even the language used to approach or address a judge are steeply rooted in tradition.
It is therefore not surprising that tech, innovation and law are words that have not commonly been used together in the past. The acceptance of tech and innovation in law has been slow. The developments in financial services for example (mobile banking, mobile money, online banking and even crypto-currency) show how other industries are embracing technology. These developments have, as a result, made financial services more accessible to Africa’s fast-growing and relatively excluded population.
Legal services in South Africa, however, have not enjoyed a similar rate of innovation and inclusion. In this regard, some have argued that the gate keepers, “the old guard”, are too old fashioned and comfortable with the status quo to embrace change and innovation.
That’s the bad news. The good news is that in recent times, in South Africa (and many other parts of the continent) there are positive developments taking place in terms of legal tech and innovation. e-Discovery is one such development locally, as the use and acceptance thereof is on the rise. These developments are also contributing to improved access to justice.
Sustainable Development Goal (SDG) 16 seeks to, “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”. Further, according to the Hague Institute for Innovation of Law (HiiL), “…if you ask people about the justice problems that have the most impact on their lives, 82% is not resolved”. Access to justice in Africa and beyond is, therefore, of the paramount importance.
In terms of the South African context, it is important to note that both terms “legal tech” and “innovation” have been included to cater for technological advancements in legal service delivery (legal tech) as well as non-technological, procedural, developments (innovation).
An example of legal tech is Legal Serve, an electronic court filing platform that is designed to make the service of legal documents more efficient and affordable. This technological solution for lawyers in South Africa and Africa also provides a safe and secure retention of documents.
Whereas an example of legal innovation is Creative Contracts, an entity that reduces contractual agreements to comic strips which outline the duties and responsibilities of the parties involved. This innovation enables parties without legal training, the ability to read and write or speak the same language to enter into binding legal agreements with clearly articulated obligations and expectations.
The terrain isn’t exclusive, in many instances the technological and innovative aspects overlap. Legal Legends, for example, is an e-commerce platform that allows the purchase of legal services online at a fixed, upfront, cost thus saving time and managing expenditure. This example of the overlap between legal tech and innovation is useful to curb the fear of unknown legal costs that have often been cited, particularly by small businesses, as a deterrent to accessing legal services.
It is encouraging to note that the space for legal tech and innovation is opening up. HiiL has been working with justice entrepreneurs whose innovative solutions help to improve access to justice in South Africa and the sheer amount of applications (approximately 50 per annum) show that more and more South Africans are embracing the notion. February 2018 also saw the Global Legal Hackathon being hosted in South Africa for first time ever.
The Global Legal Hackathon engages law schools, law firms and in-house departments, legal technology companies, governments, and service providers to the legal industry – across the globe. It brings together the best thinkers, doers and practitioners in law in support of a unified vision: rapid development of solutions to improve the legal industry, world-wide.
HiiL hosted its Regional Innovating Justice finals at Leaderex in September 2018. The ‘people’s choice’ was an interesting start-up; an alternative dispute resolution innovation known as Buyisa Soul and Spiritual Centre. This is a group of traditional healers in the township of Alexandra that convene a mediation court. There is great scope to support this organic community-based dispute resolution platform and replicate it throughout the country in the spirit of access to justice.
It is not just the start-up space that is participating in legal tech and innovation either, the big, established, law firms are also starting to come to the party. Hogan Lovells was one of the sponsors of the Global Legal Hackathon in South Africa which was hosted at Tshimologong Precinct. Baker McKenzie in South Africa has also been active in the legal tech and innovation ecosystem through, amongst other things, offering expert insights at the HiiL regional finals. In May 2018, Norton Rose Fulbright launched an AI powered chatbot known as Parker. Parker helps clients in non-EU jurisdictions understand if/ how they are affected by the General Data Protection Regulation (GDPR).
While it is important for the legal industry in South Africa to realise and harness the potential of technology and innovation; it operates within a regulatory framework which may either stymy progress or, serve as a catalyst (depending on the attitude of the regulators). Fortunately, the “licence” to innovate seems to be opening up as well.
The Chief Justice of South Africa, Mogoeng Mogoeng, delivered a speech on the 6th of March 2018 at the University of Cape Town wherein he had the following to say;
“Let’s stop this somewhat slavish imitation of old laws and practices that do not always work for our nations and design an effective and efficient legal system and teaching method that would be easy to understand and apply. Every aspect of the law ought to be anchored on the Constitution, its spirit, purport, object and values. Otherwise some of the injustices that flow from the law of contract, evidence or property would last forever, to the prejudice of the less informed, often desperate or vulnerable contracting parties. Revise the law and teaching methods innovatively with emphasis or special focus on real or substantive justice and equity.”
These encouraging words are indicative of a judiciary that acknowledges the need to embrace technology and innovation. Further, the Deputy Minister of Justice and Constitutional Development, John Jeffery, at the HiiL Regional Final in 2017 had the following to say:
“As Thomas Edison said: “There is a way to do it better – find it.” In South Africa we have found that many economic, structural, and institutional factors also hinder access to justice, including the complexity and cost of legal processes, time, and geographical and physical constraints. Importantly, many people - especially those in vulnerable and marginalized groups - neither recognize their problems as legal ones, nor identify the potential legal remedies for those problems. There are many factors which determine whether or not people seek legal assistance, or take action at all, to resolve their legal problems. These and future justice innovations will empower people to do so”.
From a legislative perspective, the Legal Practice Act (LPA) 28 of 2014 will have a bearing on the evolution of the provision of legal services in South Africa. For example, it will put in place a mechanism to determine fees chargeable by legal practitioners for legal services rendered by them. This will encourage citizens and small businesses to seek legal services. The LPA has also established the South African Legal Practice Council, a body which will have great influence on legal service delivery. It is, however, yet to be seen what the attitude/ stance by the Legal Practice Council toward legal tech and innovation will be.
Another interesting legislative development is the enactment of the International Arbitration Act 15 of 2017. This is a clear statement by the legislature that South Africa is embracing alternative dispute resolution (ADR) mechanisms and aligning with global trade practices to remain competitive. ADR as a concept itself is even undergoing innovation in South Africa with the arrival of global players, Resolve Disputes Online (RDO). RDO is simple to use dispute resolution technology which has been built by dispute resolution practitioners who understand the process. RDO's technology is designed with the purpose of making dispute resolution as effortless and as effective as possible.
The uptake of legal tech and innovation has traditionally been lethargic in South Africa. However, it is quite clear that many stakeholders in the value chain (such as start-ups, big law, the judiciary and the legislature) are increasingly starting to realise the necessity and benefits of doing things differently. While it has been a long time coming, legal tech and innovation has arrived in South Africa and there is no turning back. The opportunities are vast and the benefits to the ordinary citizen are clear.
The views in this article are those of the author in his personal capacity. It is an overview of legal tech and innovation in South Africa and not an exhaustive list.
About the Author
Themba Mahleka is an attorney and legal consultant specialising in commercial law. He works with Imani Africa Lawyers on Demand. Themba is passionate about legal innovation as he believes this has great potential to improve legal service delivery. As such, Themba is also the regional (Southern Africa) Innovating Justice Agent for the Hague Institute for Innovation of Law (HiiL). Headquartered in the Netherlands, HiiL supports and empowers justice entrepreneurs throughout the world. Themba is part of the team responsible for developing this entity locally through, inter alia, entrepreneur support and stakeholder engagement.
Themba holds an LLB (Bachelor of Laws, Honours) from the University of the Witwatersrand and a post graduate Certificate in Corporate Governance from the University of Johannesburg. He is also a certified Risk Management trainer.