Trust does not hold itself up. That was the starting premise of a panel that I joined at the inaugural LexisNexis Future of Law Conference in Sandton last week, under the banner “The Architecture of Trust: Accountability in the Intelligent Age”. The organisers put it well: trust rests on structures – codes of conduct, governance frameworks, disclosure obligations, professional standards and institutional culture – that determine who answers for what, and to whom. The question asked is whether that architecture remains fit for purpose now that artificial intelligence sits inside the governance framework of the very institutions it was built to support.
My answer, which I seek to develop here and which I suspect not everyone may share, is that the architecture is broadly sound in its current form. It is fragmented, certainly, and it is being outpaced in places – but in practice not in principle. The real deficit in most South African boardrooms is not a missing statute. It is a visibility gap.
Directors cannot hand their duties to a machineOur current framework: fragmented, not lawlessOutpaced? In practice, yes. In principle, no.We in South Africa have “regulated in a rush” before – first for COVID-19 in 2020, and then in late 2022 in an effort to avoid the FATF grey list. The quality of both sets of regulation showed their urgency, although at least one clearly served its purpose: we are off the grey list. The merits of the COVID-19 regulations remain open to debate, but COVID-19 and AI do seem to share one thing: speed of spread and pace of evolution. Rules designed for the early stages of the pandemic struggled to keep up as the virus mutated. The lesson for AI is that we should not box ourselves into rules written for earlier “variants” of AI that are…