In South Africa, there is no formal AI policy yet. The current legal framework only indirectly addresses certain aspects relating to AI where it intersects with privacy, data protection, fairness, cybersecurity, and consumer rights.
Key legislation impacting AI
1. The Constitution of the Republic of South Africa
The South African Constitution protects rights such as dignity, equality, privacy, and administrative justice. Against the background that AI is merely a tool that is employed by the prompter, alternatively, the user, said rights may be infringed through AI, especially when algorithms result in discrimination or violate privacy.
2. Protection of Personal Information Act 4 of 2013 (POPIA)
POPIA regulates how personal data is collected, stored, and processed. Any person or entity using AI systems to process personal information must comply with this Act, ensuring lawful processing, consent, and data security.
3. Promotion of Access to Information Act 2 of 2000 (PAIA) & Promotion of Administrative Justice Act 3 of 2000 (PAJA)
These Acts promote transparency and fairness in government decision-making. When government entities employ AI, like for social grants, decisions ought to be lawful, reasonable, and procedurally fair.
4. Cybercrimes Act 19 of 2020
The Cybercrimes Act would apply where AI tools are used to commit offences such as hacking, data breaches, identity theft or deepfake-related crimes.
5. Consumer Protection Act 68 of 2008 (CPA)
The Consumer Protection Act comes into play, by extension, when AI is used in marketing, or in automated decision-making, or where AI-produced services affect consumer rights and safety.
AI is therefore already subject to constitutional and statutory scrutiny through existing laws, even though there is no specific legislation yet.
The Minister of Communications and Digital Technologies, Solly Malatsi, has confirmed that the government is finalising the National Artificial Intelligence Policy Framework, which will be South Africa’s first formal step towards more comprehensive AI governance.
Key pillars of the policy include:
Skills and capacity development:
- Incorporating AI into education.
- Establishing training programmes and academic-industry collaboration.
Digital infrastructure and innovation support:
- Promoting AI-ready infrastructure and investment.
AI research and public-private collaboration:
- Creating research centres and innovation hubs.
AI in government (Public Sector use):
- Deploying AI to improve public administration and service delivery.
- Establishing ethical standards and guidelines for state use.
Ethical AI guidelines development:
- Ensuring legislative compliance, governance, accountability and risk management.
Privacy and data protection:
- Strengthening data governance, transparency, and alignment with data protection laws such as POPIA.
- Safety, Cybersecurity, and Risk Management.
Transparency and explainability:
- Ensuring AI systems are understandable and trustworthy.
Policy vs. law: What’s the difference?
By definition, a policy framework refers to a roadmap or guideline of the government’s intentions, which are not legally binding and cannot impose penalties directly. Courts, however, can use policies as a secondary source of law, which may be employed to aid with interpretation or for persuasive purposes.
Does this mean that an AI policy is pointless? Not at all. It will set the foundation for future AI laws (hopefully a National AI Act), which will guide the lawmakers’ decisions on how AI should be governed in South Africa.
The regulation of AI in South Africa is already taking shape. Whilst no special dedicated AI law exists as yet, several laws indirectly govern AI-related risks. The upcoming National AI Policy Framework marks a crucial step toward responsible AI regulation. Challenges such as the digital divide and unequal access to technology will remain, but positively, the framework also proposes targeted investments in education, innovation, and infrastructure. AI regulation in South Africa is evolving and may be on the horizon in the not-so-distant future.
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