South Africa

Facts On 10 April 2016, the Plaintiff was admitted to a private hospital complaining of pain in her left knee. Unbeknown to anyone at the time, the Plaintiff had suffered a ruptured aneurysm in her popliteal artery, resulting in limited blood flow to her lower left leg. The rupture went untreated for a critical period, and the condition of the Plaintiff's leg deteriorated to such an extent that it had to be amputated above the knee on 19 April 2016. On 14 August 2017, the Plaintiff instituted an action for damages arising from the allegedly negligent treatment she received at the hospital. The suit was initially brought against the hospital and three of the Plaintiff's treating physicians (the First to Fourth Defendants). It became apparent from their pleas that none of the original defendants accepted direct responsibility for the treatment the Plaintiff received in the hospital's accident and emergency department, which they said was run by the Fifth Defendant, an incorporated medical practice. On 21 June 2018, the Plaintiff sued the Fifth Defendant, which pleaded on 5 December 2018. In its plea, the Fifth Defendant identified the Seventh Defendant as its employee who had treated the Plaintiff "in the course and scope of his duties," and a Sixth Defendant as a locum physician not in its employ. The Plaintiff's legal representatives made what they described as a "strategic decision" not to sue the Seventh Defendant personally, reasoning that the Fifth Defendant could be held vicariously liable for any negligence proved against him. They did, however, sue the Sixth Defendant in her personal capacity on 31 August 2020, as she was acknowledged not to be in the Fifth Defendant's employ. At around the same time, the Fifth Defendant amended its plea to withdraw the admission that the Seventh Defendant was its employee, now pleading that both the Sixth and Seventh Defendants were independent contractors over whom it had no control. Despite this material amendment, the Plaintiff's legal representatives did not act upon it until June 2022, when they finally appreciated the need to sue the Seventh Defendant in his personal capacity. The summons against the Seventh Defendant was served on 22 June 2022. The Seventh Defendant raised a special plea of prescription. Issues The central issue the Court had to determine was whether the Plaintiff's claim against the Seventh Defendant had prescribed. The Prescription Act (“the Act”) provides that an ordinary debt prescribes three years after it falls due. Section 12(3) of the Act provides that a debt falls due when the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises. The Court therefore had to determine when the Plaintiff first became aware of the Seventh Defendant's identity and his role in the chain of events leading to her injury. Complications: the peculiarity of Prescription in this matter What made the prescription issue peculiar in this matter was the manner in which the Seventh Defendant pleaded his special plea. While the case, in the Court's view, turned upon two straightforward and common cause facts — that the Plaintiff became aware of the Seventh Defendant's role in her treatment on 11 December 2018 (when the Fifth Defendant's plea was served), and that the Plaintiff did not institute proceedings against the Seventh Defendant until 22 June 2022, some four and a half years later — the Seventh Defendant's legal representatives overcomplicated the matter. The Seventh Defendant persisted with the argument that the Plaintiff should be deemed to have been aware of the Seventh Defendant's identity as early as August 2017, when the hospital records were discovered. Those records included a form signed by the Seventh Defendant, but the Court noted that the Seventh Defendant's signature was illegible and the form did not otherwise identify him. The Seventh Defendant's counsel argued that it was unreasonable of the Plaintiff to wait until the Fifth Defendant identified the Seventh Defendant in its plea. The Court expressed doubt about this more ambitious argument, observing that the Plaintiff was investigating a complex chain of medical causation. The hospital had sought to shift liability onto its separately incorporated constituent practices, which in turn sought to shift liability onto the physicians working for them as independent contractors. In those circumstances, the Court held that the Plaintiff could not be criticised for seeking relief against the hospital rather than a treating physician who, at the time the medical records were received, was identified by no more than "his scrawled signature on a single sheet of paper". Court's determination and reasons The Court upheld the special plea of prescription and dismissed the Plaintiff's claim against the Seventh Defendant. The Court's reasoning was as follows: The Plaintiff plainly became aware of the Seventh Defendant's identity and his role in her treatment when the Fifth Defendant named the Seventh Defendant in its plea dated 5 December 2018, which was served on the Plaintiff's legal representatives on 11 December 2018. The three-year prescriptive period therefore expired on 12 December 2021. Since the Plaintiff only served the summons against the Seventh Defendant on 22 June 2022, the claim had prescribed. The Court rejected the Plaintiff's reliance on section 12(2) of the Act. The argument that the Fifth Defendant had "wilfully prevented" the Plaintiff from discovering her cause of action by initially pleading that the Seventh Defendant was its employee was found to be misguided. The Court reasoned that the Plaintiff's strategic decision not to sue the Seventh Defendant personally, because the Plaintiff's representatives believed they could hold the Fifth Defendant vicariously liable, did not mean the Plaintiff was prevented from suing the Seventh Defendant in his own right. The Court further reasoned that the very decision to pursue vicarious liability against the Fifth Defendant entailed the proposition that the Plaintiff's representatives already knew about the Seventh Defendant and his potential role in causing the Plaintiff's injury. Conclusion This judgment offers important guidance in the field of medical negligence litigation on the operation of prescription, particularly regarding knowledge of a debtor's identity under section 12(3) of the Act. It underscores that the prescriptive period begins to run from the date the plaintiff acquires knowledge of the debtor's identity and the facts giving rise to the debt — not from the date a plaintiff makes a strategic decision to act on that knowledge. Practitioners in medical negligence matters should take careful note: when the identity of a potential defendant becomes known through the pleadings of a co-defendant, the clock starts immediately, regardless of whether the plaintiff has elected to pursue a vicarious liability strategy against another party. Article by: Mtho Maphumulo Litigation and Alternative Dispute Resolution Attorney, Adams & Adams Partner, Insurance & Financial Services department

15 May 2026 South Africans can’t stop saying it: “kyk wat doen ’n blazer”! What started as a single video has turned into a nationwide trend — and potentially something far more valuable: a commercial asset. Goodwill and reputation are invaluable assets in a business.  They are known as the forces that attract custom, the things that make customers choose you over everyone else.  Traditionally, brands earned that recognition through years of advertising, consistent use and significant commercial investment. Reputation was something built slowly - campaign by campaign, sale by sale.   Enter the blazer.  And a goue tekkie.   In today’s digital economy, a single viral moment can create more public recognition in 24 hours than traditional advertising campaigns achieve in years.  A phrase, logo, image, or brand can explode across TikTok, X, Instagram, or YouTube overnight, instantly embedding itself in public consciousness and potentially generating enormous commercial value.   The viral storm around “Kyk wat doen ’n blazer” is the perfect example of this shift. What began as a video posted by social media influencer Farming Blonde in March 2026 to promote the launch of her local clothing line has, within days, swept across South Africa, generating instant virality, with many brands joining the conversation.     The entire country is now “kyking wat doen ’n blazer”, and in the process the brand has gained immediate traction and widespread recognition.   This raises an important trade mark question: can a brand acquire protectable goodwill overnight?   Traditionally, building that protectable consumer recognition meant incurring extensive use and advertising spend.  It was considered as needing long-standing market presence and significant sales figures.  But virality disrupts the traditional formula. A business no longer necessarily needs years of investment to achieve widespread consumer recognition and the goodwill that goes hand in hand with that.  It may well be the case that one viral clip, celebrity moment, meme, or trending hashtag could be enough.   Whilst virality does not automatically translate into enforceable rights, it does change the speed at which enforceable recognition can arise.   Consumers engage with viral content voluntarily, share it rapidly, and emotionally connect with it in ways that paid advertising often struggles to achieve.  The power of virality cannot be overstated and IP rights that come into existence as a result, must not be underestimated.   The peculiarity of a viral moment is of course that there is no way of knowing the brink of success.  Farming Blonde could not have foreseen the substantial impact this one video would have and the value it would add to her business.   Today it’s a viral slogan. Tomorrow, it could be a protected brand. Kyk nou net wat doen ‘n blazer!   By Werina Griffiths (Partner) and Nontando Tusi (Senior Associate)  

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.