PREETA BHAGATTJEE AND SAVANNA STEPHENS: An initial step to establish an AI policy and regulatory framework for SA

At the government’s AI summit on April 5 the department of communications & digital technologies launched an artificial intelligence (AI) planning discussion document to initiate discussion between the public and private sectors and facilitate innovation. 

The planned development of a national policy will set out the government’s position on the adoption of AI in SA, government-led AI initiatives and a proposed regulatory framework and/or principles guiding the use and development of AI.

This is a positive initial step, as once a national policy is adopted as a white paper this will inform the legal framework and principles upon which the appropriate governance or regulatory instruments, or any new legislation to regulate AI (which the discussion document seems to propose, including by providing various proposed dates by when specific regulations should be passed) is likely to be based.

The department, which will work with an AI expert advisory council to define the national policy, proposes that the AI Institute of SA should guide the implementation and development of the policy and any AI-specific regulation. While the regulatory approach is not conclusively set out in the discussion document, the minister of communications & digital technologies has indicated that the government intends to develop and implement some form of AI regulation. 

Even though the development of a national policy is in the early stages, the discussion document provides some initial insights into the government’s thinking and proposed approach to addressing the adoption of AI in SA.

Some of the key proposals are:

• A national strategy for AI to advance economic growth, with a particular focus on key sectors such as manufacturing, agriculture, military capabilities, energy transition, healthcare and the automotive sector;

• Developing and implementing a tailored regulatory approach to AI in SA over the period 2025-27 that can take guidance from other legal systems and approaches adopted globally, for example the EU’s AI Act, but should ultimately address the SA context and infrastructure capabilities; and

• Ensuring that ethical considerations relating to AI use are appropriately addressed under the legal framework that is ultimately adopted or included as guiding principles for the national policy. This to guard against and mitigate any harms that may result from the deployment of AI in SA.

Some of the harms to be addressed include anticompetitive behaviour arising from the concentration of AI models among a small number of technology players, risks associated with robotic or autonomous devices that use AI to make decisions, social risk arising from job losses, existential risks resulting from loss of control of models that pursue goals detrimental to humanity, risks of criminal behaviour or other dangerous outcomes resulting from AI designed for military purposes (used without appropriate controls), and the need for investment by the government to implement targeted initiatives.

The government will need to ensure that education and training ecosystems suitably cater for AI literacy skills to address future skills requirements, develop or invest in locally developed AI solutions — including through supporting and investing in tech start-ups in SA — and upgrade and maintain the public data architecture systems across key identified sectors and mobilise e-government services using AI.

Critically, the discussion document appears to have been published as a rough draft. It is repetitive, has conflicting provisions and is not sufficiently advanced, specific or practical in clarifying and setting a clear policy approach and informed plan to offer meaningful guidance on the way forward. It is largely styled as a list of options, initial thoughts and information from other sources and records of developments in AI use and governance and regulation in other countries, including for example suggesting that those charged with regulating or creating governance frameworks or laws “should consider disclosure requirements about the use of AI techniques”.

Optimistically, the discussion document does signal that policy and legislative developments for the use and adoption of AI in SA are on the horizon, and it is hoped that a reworked document will be published that includes a substantive policy plan and considered input from key stakeholders from the private and public sectors, as well as relevant bodies such as the AI expert advisory council.

It needs to provide specific direction for SA, taking into account the experience of other jurisdictions about the globe — including regulation and implementation of effective mechanisms to foster and encourage the development and use of AI while striking a balance to manage the potential harms and ethical risks that have arisen with the proliferation of AI in all aspects of business and society.

• Bhagattjee is head of technology & innovation, and Stephens senior associate, at Werksmans Attorneys.