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The metaverse is not a concept that is new within the technology space, despite many of us only having heard of it in recent years. Following the announcement made by Mark Zuckerberg in 2021 to rebrand Facebook to what is now known as Meta (the holding company of Facebook, WhatsApp and Instagram) the term ‘metaverse’ has become more prominent. It can further be argued that this rebrand has had somewhat of an impact in respect of igniting our curiosity with regards to what exactly the metaverse is. The term metaverse was first used in the novel Snow Crash (Bantam Books 1992) by Neal Stephenson. Between the publication of Snow Crash and 2023, there have been significant technological advancements such as artificial intelligence (AI), blockchain and 5G, which are some of the pillars that have changed the metaverse from an idea that was impossible to create into a futuristic ‘successor of the mobile Internet’ where ‘we’ll be able to feel present – like we’re right there with people no matter how far apart we actually are’ (Kari Paul ‘Facebook announces name change to Meta in rebranding effort’ (www.theguardian.com, accessed 1-10-2023)). In a nutshell, this platform can be described as ‘a massively scaled and interoperable network of real-time 3D virtual worlds in which users can experience synchronously and persistently with unlimited numbers of other users, and with continuity of data such as identity, entitlements, objects, communications, and payments’ (Davy Tsz Kit Ng ‘What is the metaverse? Definitions, technologies and the community of inquiry’ (2022) 38 (4) Australasian Journal of Educational Technology 190). The platform utilises augmented and virtual reality in order to ‘enhance user experience, through engaging in social activities such as having meetings, collaborating on projects, playing games and learning in virtual environments’ (Ng (op cit)). With the use of technology in our everyday lives becoming an increasing norm, one must ask, how can we use such technology in order to facilitate and access justice in South Africa?
The world that we live in is changing at a rapid pace, therefore, the way in which we access justice and practice the law should be no different. As legal practitioners, we are currently faced with the challenge of bridging the gap between legal practice and the use of technology, and the metaverse could be one of the many tools, which could be used to narrow down this divide. Although the metaverse is in its early stages of development, the technology has had its first test run in a Colombian court, where it was used to facilitate legal proceedings. The technology enabled faster and easier access to the justice system, whereby users were represented by digital versions of themselves to take part in litigation proceedings for the purpose of meeting the needs of a fair justice system and providing a neutral space for parties to exchange information and resolve disputes. In doing so, it removes the need for physical interaction. In order to explain key terms to participants and find the best way to verify their identities, the presiding magistrate made use of ChatGPT – an AI chatbot that provides human like responses to text based language, which is trained using data derived from an array of sources (see Maria Lorena Flórez Rojas ‘Colombian judge holds a court hearing in the metaverse’ (www.linkedin.com, accessed 1-10-2023))). Without considering the legal risks and challenges that may be associated with the use of the metaverse and ChatGPT as a means to access justice, it seems like the ultimate solution to resolving the issue of the law being inaccessible to those who might need it the most. The entire philosophy of attending a court hearing virtually is a new and unconventional one, since attending court hearings in person is the traditional norm. However, the question to ask is whether this is a marvel that could easily be accessed by those who desperately need it?
The digitalisation of legal practice in South Africa (SA) is a journey that has been almost impossible to avoid and has affected lawyers around the country in one way or another. The legislature’s commitment to digital transformation can be dated back to the early 2000s when the Electronic Communications and Transactions Act 25 of 2002 (the Act) was introduced. The intention of the Act was to regulate electronic communication, promote universal access to such electronic communication and encourage the use of e-government services (see long title of the Act). It is without doubt that the purpose of the legislature was to bring about digital transformation to various sectors of society within the Republic, including legal practitioners and the clients that they serve. In 2012, the Uniform Rules of Court were amended by introducing r 4A, which deals with the electronic transmission of documents and notices. In the same year, a landmark judgment was handed down by Steyn J of the KwaZulu-Natal Local Division of the High Court, granting an order for substituted service via Facebook. The court acknowledged that there have been significant changes in respect of using technology for the purpose of communication and it would not be unreasonable to expect the law to recognise and accommodate such changes (see CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens [2012] 4 All SA 195 (KZD) at para 2). It is important to note that despite the progressive nature of the judgment handed down by the court, it was tacitly acknowledged that there may be instances where certain individuals may not have access to electronic communication and alternative means ought to be explored in order for justice to be served (see CMC Woodworking Machinery at para 14). Two decades after the introduction of the Act, OpenAI launched ChatGPT. Inevitably, it has also been a topic of discussion within the legal fraternity due to its ability (or attempts thereof, rather) to answer legal questions. The accuracy of the information provided by the platform has been somewhat questionable, as was the case in Parker v Forsyth NO and Other (Johannesburg Regional Court) (unreported case no 1585/20, 29-6-2023) (Magistrate Chaitram). The plaintiff’s attorneys had relied on ChatGPT to conduct legal research, where the platform had provided feedback as requested and in the process, the platform created bogus judgments, which citations were provided to the defendants’ attorneys. During the proceedings, it was admitted by the plaintiff’s counsel that the source of these bogus judgments was ChatGPT. The court reiterated that the use of technology for the purpose of conducting legal research ought to be done with independent reading and frowned on the carelessness of repeating ‘in parrot-fashion, the unverified research of a chatbot’ (see paras 85 – 91). Considering these events, it is worth wondering whether the use of such technology may do more harm than good, in an attempt to provide access to justice for those who need it the most.
The high costs of living in SA are depriving the majority of its citizens the opportunity to actively take part in the digital economy. To avoid a state where the fourth industrial revolution (4IR) only benefits the wealthy minority in SA, all homes in the country would need to be connected to the Internet within the next decade. When taking a glimpse at the reality of the digital divide in SA, 7,5 million people who are lower income earners are paying 80 times more than their wealthier counterparts. To put these numbers into perspective, only 10% of South Africans have affordable, fixed Internet available at their homes (see SABC News ‘Digital divide will isolate poor South Africans from 4th Industrial Revolution’ (www.sabcnews.com, accessed 1-10-2023)). This unfortunate reality can be traced to the growing level of socio-economic inequality in SA, which is due to a record 35,3% unemployment rate in the fourth quarter of 2021, post COVID-19. In addition to this, SA was projected to have reached a 60% level of a population living below the upper-middle-income country poverty line (see World Bank ‘The World Bank’s strategy in South Africa reflects the country’s development priorities and its unique leadership position at sub-regional and continental levels’ (www.worldbank.org, accessed 1-10-2023)). Taking the above into consideration, it is clear to see that only a select few in our society are afforded the opportunity to take full advantage of the digital community ushered into our new way of living via the 4IR. As a result of this, the idea of your average South African reaping the benefits of access to justice via the metaverse would only be reserved for the select few, who most likely are not facing any challenges of accessing justice in any event.
Before considering the possibility of using the metaverse as a means to access justice to those who need it the most, there are other conditions that need to be met. As a starting point, the inequality gap would have to be narrowed down and various stakeholders would have to make a commitment towards including ordinary South Africans in the 4IR. To achieve this goal, the Department of Communications and Digital Technologies published a Summary Report and Recommendations (the Report), which was prepared by the Presidential Commission on the Fourth Industrial Revolution (the Commission) in 2020. The Commission, which is chaired by the President of the Republic, was tasked with developing a strategy and making recommendations regarding institutional frameworks and roles of various sectors of society, for the advancement of the 4IR. Some of the recommendations made by the Commission include investing in human capital, the establishment of an AI institute, the building of 4IR infrastructure, the review, amendment and creation of policy and legislation along with the establishment of a 4IR Strategy Implementation Coordination Council in the Presidency (see GenN591 GG43834/23-10-2020). It is important to understand that, at this stage, these are merely recommendations, and the onus would lie with the various government departments and other stakeholder in society to convert these into an existing reality. As it stands, it seems that the use of the metaverse to access justice in SA is a dream that remains beyond the parameters of our foreseeable future.
Marcus Zulu LLB (UKZN) is Legal Counsel at Absa Group in Johannesburg.
This article was first published in De Rebus in 2023 (Nov) DR 14.
