Case CCT 300/24
[2025] ZACC 09
Hearing Date: 28 November 2024
Judgement Date: 07 May 2025
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
Today, the Constitutional Court handed down judgment in an urgent application for direct access concerning the lapsing of the suspension period of the declaration of invalidity of sections 6 and 7 read with section 23 of the Copyright Act (Act) and of the section 13A interim reading-in relief made by this Court in Blind SA v Minister of Trade, Industry and Competition and Others [2022] ZACC 33 (Blind SA I) without any enabling legislation in place, leaving a gap in the Act.
The legislative process relating to the amendment of the Act began in 2015, when Parliament published the Copyright Amendment Bill (CAB). The CAB introduced clause 19D, which aimed to create exceptions for people with visual and print disabilities to access copyrighted works. The CAB was passed and sent to the President for his assent on 28 March 2019. On 16 June 2020, the President referred the CAB back to Parliament for reconsideration, as he had reservations about the constitutionality of some of the draft provisions in the initial version of the CAB.
Due to the delays in finalising the CAB, on 24 March 2021, the applicant, Blind SA, launched an application in the Gauteng Division of the High Court (High Court) for a declaration of invalidity of sections 6 and 7 read with section 23 of the Act. The High Court declared the impugned sections inconsistent with the Constitution and invalid.
On 21 September 2022, the Constitutional Court in Blind SA I confirmed the declaration of constitutional invalidity of the impugned provisions, as they required the permission of copyright owners before their works could be reproduced in accessible formats for persons with visual and print disabilities. This Court held that these provisions were inconsistent with the constitutional rights of people with disabilities and held that requiring the permission of the copyright owners to create accessible formats amounted to a discriminatory barrier that unfairly prevented people with visual and print disabilities from accessing copyrighted materials. When considering the appropriate remedy, the Court declined to incorporate clause 19D of the CAB, stating that it was excessively broad and lacked the precision necessary for the specific case under consideration. The Court suspended the declaration of invalidity for 24 months and also made an interim remedy in the form of a reading-in of a temporary provision, that is, section 13A to be read into the Act, pending the enactment of the legislation. The suspension period was due to lapse on 21 September 2024.
In the meantime, Parliament considered the President’s reservations and on 29 February 2024, completed its process and passed the CAB. On 2 March 2024, the CAB was submitted to the President for his assent. However, the President did not sign the CAB into law as he still had reservations on the constitutionality of some provisions. Notably, these reservations did not include clause 19D.
The suspension period regarding the declaration of constitutional invalidity and the interim reading-in remedy issued by the Court in Blind SA I lapsed on 21 September 2024 without the promulgation of legislation to cure the defect. Therefore, the invalidity took effect, and persons whose rights were protected by the interim remedy could no longer benefit from it.
On 8 October 2024, Blind SA approached this Court by way of an urgent application for direct access and sought an order resuscitating the section 13A reading-in remedy. On 14 October 2024, the President referred the reservations regarding the CAB and the Performers Protection Act Bill (PPAB) in terms of section 79B and 84(2)(c) of the Constitution for a determination of their constitutional validity.
After the Court had initially consolidated both matters on 22 October 2024, Blind SA filed a supplementary affidavit stating that the matter was urgent, and that the President’s referral would delay the finalisation of the matter, by over a year. As a result, the Court separated the matters and heard the urgent application on 28 November 2024.
On 13 December 2024, this Court issued an interim order reading in section 13A, pending the final determination of the matter.
Blind SA submitted that the Court’s jurisdiction was engaged as it would supplement or vary its own order in Blind SA I. On urgency, it accepted that the applications to extend suspension periods generally arise close to the expiry of the suspension period, and not once the relief has lapsed. Blind SA submitted that if its urgent direct access application were refused, then persons with visual and print disabilities would be left without protection and would have to await the outcome of the referral application. Therefore, it was in the interests of justice for this Court to grant urgent direct access.
Blind SA acknowledged that this Court does not have the power to extend a suspension period once it has lapsed, but argued that this Court may grant a just and equitable remedy in terms of section 172(1)(b) of the Constitution. Therefore, it requested that section 13A be kept in place until the current legislation is passed to cure the constitutional defect, and protect the rights of those with visual and print disabilities. Blind SA submitted that this Court is not obliged to read in section 13A as an interim measure, but may read in the version of clause 19D of the CAB as currently defined. This current version differs from the previous version of clause 19D, which was considered in Blind SA I, as Parliament had used this provision to cure the defect in the Act. They argued that clause 19D is “more user friendly and better advances the rights of persons with visual and print disabilities”. Therefore, a just and equitable remedy would be for the Court to revive section 13A, or to read in the current clause 19D in the CAB as it is not subject to the President’s referral, and is the Legislature’s chosen solution. Further, that this would also facilitate South Africa’s accession to the Marrakesh VIP Treaty, which has been put on hold indefinitely.
Blind SA also sought a costs order against the President on a punitive scale, or to be jointly paid by the President and all respondents who opposed the relief sought. They further submitted that the President had not made it clear that he would be unable to make a decision on time, after numerous attempts to contact him. Had he informed the parties, the Minister of Trade, Industry and Competition or Parliament could have approached the Court before the expiry of the suspension period. Instead, Blind SA had to approach the Court, as those who were supposed to ensure the implementation of the order had failed to do so. Furthermore, that the President had rushed the referral of the CAB to this Court, suggesting that he did so in response to the initiation of this case and indicating that, if not for the pressure resulting from the urgent application, the referral would have been delayed. During the hearing, Blind SA abandoned its request for a punitive costs order.
On the costs order sought, the President submitted that he was not a party to the order in Blind SA I and therefore his failure to decide on the CAB before the end of the suspension period of the declaration of invalidity and reading-in period did not contravene this Court’s order, nor his constitutional obligations. Thus, there was no basis for the punitive costs order against him, and further that that order is extraordinary and only granted where a litigant has acted in “a clear and indubitably vexatious and reprehensible manner” to indicate the extreme disapproval of the Court.
The Minister submitted that while this Court has broad powers to grant just and equitable relief in terms of section 172(1)(b) to address this dispute, it must ensure that its reading-in remedy is constitutionally compliant with the legislative process and with the concerns raised in the President’s referral. Therefore, the Minister submitted that the just and equitable remedy would be reading in section 13A.
The Media Monitoring Africa, an organisation that had been admitted as the friend of the Court, provided submissions on remedy. It submitted that the Court is in a unique position in comparison to Ex parte Minister of Home Affairs and Others: In re Lawyers for Human Rights v Minister of Home Affairs and Others (Ex Parte Minister of Home Affairs), which all parties rely on, in that Parliament did comply with this Court’s order in Blind SA I, however, the delay in signing the CAB resulted in the failure to cure the defect. The Court did not anticipate that the President’s failure to sign the CAB would delay or prevent the enactment of remedial legislation. It submitted that the Court has a constitutional obligation to grant supplementary relief where it is clear that without such relief, the rights of persons with visual and print disabilities will once again be violated. Therefore, precautionary measures should be infused in its order.
In a unanimous judgment penned by Mhlantla J (with Madlanga ADCJ, Kollapen J, Mathopo J, Rogers J, Seegobin AJ, Theron J, Tolmay AJ and Tshiqi J concurring) the Court held that the matter was urgent and that its jurisdiction is engaged, as the matter concerns the infringement of the rights of visually and print impaired persons, and that this Court is the only court with the power to supplement its own orders.
The Court held that the failure to enact the CAB within 24 months did in fact create a legal gap, and reverted to the position before this Court’s original order. Therefore, the matter requires a careful balance of the immediate need for protection against the necessity of ensuring constitutionally compliant legislation which is appropriate and satisfactory to both Parliament and the President.
Due to the lapsing of the suspension period, no extension can be granted. However, this Court is empowered to order just and equitable relief if justice so demands, as long as it does not revive statutory provisions that have been declared constitutionally invalid and where such declaration has taken effect. The Court in Ex parte Minister of Home Affairs outlined the circumstances under which this Court can order just and equitable relief to provide legal certainty, and relied on the approach set out in its jurisprudence on extensions where this Court considered the nature of the constitutional defects, the harm caused by the failure to pass remedial legislation, and the remedies proposed by the parties.
First, the Court considered the legal framework and held that the constitutional defect did not require the Court to strike down a specific clause in the CAB, but rather requires the Court’s intervention in remedying the absence of a necessary provision which protects constitutional rights. Additionally, because the President’s current referral of the CAB raises constitutional questions about the Bill’s provisions which have not yet been enacted into law, the Court has to craft an appropriate interim remedy that addresses the lapsed suspension period while the legislative process takes its course.
The Court therefore compared section 13A against clause 19D with their ancillary provisions. After considering the submissions, the Court decided to read in clause 19D instead of section 13A, concluding that it constitutes a just and equitable remedy. This was on the basis that the provision had undergone substantial revision, was not one of the provisions in the President’s referral, a proper parliamentary process had been followed for its incorporation into the Bill, its reading-in respects legislative prerogatives, and it has developed into a broader provision which encompasses multiple formats and artistic works, reflective of both procedural improvements and substantive enhancement of its legal architecture.
Clause 19D provides a more comprehensive framework aligned with constitutional imperatives and international obligations, specifically those of the Marrakesh Treaty. It balances accessibility requirements with copyright protections through specific attribution requirements and detailed safeguards against misuse – particularly in international transfers. Its substantive improvements render it a more robust and legally sustainable framework, as it harmonises both the evolving disability rights’ principles, and South Africa’s international obligations and provides meaningful relief in a way that section 13A could not accomplish.
On costs, the Court held that, as much as the other respondents participated in these proceedings, it was the President alone who had both the knowledge and power to prevent this litigation. His lack of communication led to the expiry of the suspension period without any party being able to apply for the extension of the suspension of the declaration of invalidity. Blind SA’s application was warranted and a direct result of the President’s delay. The other respondents had acted promptly, fulfilled their duties and lacked the knowledge that the relief would expire due to the President’s failure to make a decision on the CAB. The dilatory approach to this matter cannot be condoned and for this reason, the President must pay Blind SA’s costs.
In the result, the Constitutional Court made the following order:
1. Direct access is granted.
2. Pending the coming into force of legislation remedying the constitutional defects in the Act 98 of 1978 as identified by this Court’s judgment and order of 21 September 2022 (Blind SA I) the Act 98 of 1978 shall be deemed to include a clause 19D reading as follows:
“Clause 19D.
(1) An authorised entity, or any person as may be prescribed and who serves persons with disabilities may, without the authorisation of the copyright owner, make an accessible format copy for the benefit of a person with a disability, supply that accessible format copy to a person with a disability by any means, including by non-commercial lending or by digital communication by wire or wireless means, and undertake any intermediate steps to achieve these objectives, if the following conditions are met:
(a) The person wishing to undertake any activity under this subsection must have lawful access to the copyright work or a copy of that work;
(b) in converting the copyright work to an accessible format copy, the integrity of the original work must be respected, taking due consideration of the changes needed to make the work accessible in that alternative format and of the accessibility needs of the persons with a disability; and
(c) the activity under this subsection must be undertaken on a non-profit basis.
(2) (a) A person to whom the work is communicated by wire or wireless means as a result of an activity under subsection (1) may, without the authorisation of the owner of the copyright work, reproduce the work, where that person is a person—
(i) with a disability, for their personal use; or
(ii) who serves persons with disabilities, including an authorised entity, for personal use by a person with a disability.
(b) The provisions of paragraph (a) are without prejudice to any other limitations or exceptions that the person referred to in that paragraph may enjoy.
(3) A person with a disability, or someone acting on their behalf, including an authorised entity, may make an accessible format copy of a work for the personal use of the person with a disability or otherwise may assist the person with a disability to make and use accessible format copies where the person with a disability has lawful access to that work or a copy of that work.
(4) (a) A person with a disability or a person who serves persons with disabilities, including an authorised entity, may, without the authorisation of the copyright owner export to, or import from, another country any legal copy of an accessible format copy of a work for distribution, or to make it available to persons with a disability, as long as such activity is undertaken on a non-profit basis by that person.
(b) A person contemplated in paragraph (a) may not export or import an accessible format copy where such person knows, or has reason to know, that the accessible format copy will be used for purposes other than to aid persons with a disability.
(5) The exception created by this section is subject to the obligation of indicating the source and the name of the author, if it appears on the work, on any accessible format copy.
(6) For the purposes of this clause 19D—
(a) ‘accessible format copy’ means a copy of a work in an alternative manner or form, which gives a person with a disability access to the work, including to permit the person to have access as feasibly and comfortably as a person without a disability;
(b) ‘authorised entity’ means—
(i) an entity that is authorised or recognised by the government to provide education, instructional training, adaptive reading or information access to persons with a disability on a non-profit basis; or
(ii) an entity, including a government institution or non-profit organisation that provides education, instructional training, adaptive reading or information access to persons with a disability on a non-profit basis as one of its primary activities or institutional obligations.
(c) ‘person with a disability’ means a person who has a physical, intellectual, neurological, or sensory impairment and who requires the work to be in a format that enables that person to access and use the work in the same manner as a person without a disability; and
(d) ‘commercial’ means the obtaining of economic advantage or financial gain in connection with a business or trade.”
3. The reading-in of clause 19D shall remain in effect until the remedial legislation contemplated in paragraph 2 comes into force.
4. The President of the Republic of South Africa must pay the costs of this application including the costs of two counsel..
The Full judgment here
