Procedural fairness and asymmetry in access to evidence in South Africa

Robin De Backer
Senior Associate at Primerio Law International, Johannesburg
r.debacker@primerio.international
 
Astra Christodoulou
Article Clerk at Primerio Law International, Johannesburg 
a.christodoulou@primerio.international
 

Lack of access to technology 

There has always been a power imbalance in court proceedings when an issue arises between a well-off individual, a large corporation, or the State and individuals of low economic means. With the shift towards digitisation in courtrooms, as seen through the introduction of electronic case management systems such as CaseLines and Court Online, and developments, including section 27 of the Electronic Communications and Transactions Act 25 of 2002, which opens the way towards a fully digitised courtroom, there is an increased risk of the divide being exacerbated. 

In a South African context, our socio-economic divide is among the worst in the world, with a registered Gini coefficient (where 0 represents equality and 1 maximum inequality) of 0.62 to 0.69, indicating the substantial imbalance in income distribution in the country. This has a significant impact on the judicial system, particularly with the introduction and reliance on technologies like artificial intelligence (‘AI’) as part of the evidence logging process, which leaves people who lack digital literacy and technological capabilities unable to access these forums. This leads to asymmetry in information exchange and accessibility to such information and, in certain cases, an inability to ventilate issues effectively due to the lack of access to internet. This can impact their Section 34 right to access to the courts and a fair hearing.¹  

This is a significant problem in South Africa. Over 20 per cent of the population lacks the ability to access the internet, a figure further exacerbated by the cost of data to utilise those capabilities.²  This inability to access information that is required to be digitised can lead to an unfair advantage to litigants who have the means and the know-how to use these technologies, causing asymmetry in procedural fairness and access to information. This asymmetry is contrary to an individual’s right to a fair trial as provided for in section 35 of the Constitution.³ 

AI and black box technology 

The increasing use of technology in evidence-related procedures in judicial determination in foreign jurisdictions, specifically when AI produces and processes said evidence, poses challenges for procedural fairness within judicial processes.⁴  

The introduction of these advanced technologies, including the use of  AI can result in an output that is derived without any specification into the means and techniques it employs in deriving that output; a ‘black box’.⁵  The utilisation of this black box technology in judicial processes may render parties uninformed, affecting their access to information and capabilities to meaningfully and fully contest how that evidence has been generated, assessed or weighed, which can nullify their right to challenge any adverse evidence. This algorithmic opacity may worsen the current state of information asymmetries between those who have the means and those who are incapable of adequately utilising these technologies. Transparency in the courtroom is essential to ensure that fair due process has been followed in judicial reasoning. The potential algorithmic opacity and utilisation of ‘black box’ technology will not only impede effective participation by the parties but also restrict judicial reasoning as judges themselves may have to rely on evidential results and processes that they do not fully understand in coming to their decisions. 

In this way, the deployment of advanced technologies in evidentiary situations may deteriorate the substance of procedural fairness, unless there are robust accountability and transparency safeguards that are put in place so as not to interfere with the right to procedural fairness. Although this may not yet be a consideration in South African judiciaries, due to their staunch stance on the use of AI, the shift towards its utilisation in foreign jurisdictions, as well as future developments, makes it an issue that may yet present itself in the future.

The introduction of technological advancements is unavoidable in the modern legal sphere; its purpose is to streamline and provide more accurate results in judicial determination. With these advancements, there exists the opportunity for prejudice, which must be addressed when formulating procedures. Such issues must be considered, and measures implemented, to ease the transition to the use of increased technology in evidence-related procedures. These may include putting safeguards in place to ensure adequate access to information, as well as an opportunity for paper-based lodging where someone’s financial means demand it. The right to procedural fairness is firmly entrenched in our Constitution and requires protection for all persons in South Africa. 
 

Notes

1.  The Constitution of the Republic of South Africa 1996.
2.  Datareportal, Simon Kemp, Digital: South Africa, 01 March 2025.
3.  The Constitution of the Republic of South Africa 1996.
4.  T. Dancy and M. Zalnieriute, ‘AI and Transparency in Judicial Decision-Making’, Oxford Journal of Legal Studies, forthcoming, Page 13.
5.  n4, Page 11.