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Ex parte President of the Republic of South Africa: In re Constitutionality of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill CCT306/24

Case  CCT 306/24
[2026] ZACC 26

Hearing Date:  21 & 22 May 2025

 Judgement Date: 17 June 2026

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.

On Friday, 26 June 2026, the Constitutional Court handed down judgment in a matter brought by the President of RSA in terms of sections 79(4)(b) and 84(2)(c) of the Constitution in respect of the Copyright Amendment Bill (CAB) and the Performers’ Protection Amendment Bill (PPAB). In the referral, the President requested the Court to determine whether sections 6A, 7A, 8A, 12A-D, 19B and 19C of the CAB and the parallel provisions of the PPAB were constitutional. In particular, he submitted that: (a) Sections 6A, 7A and 8A potentially constitute arbitrary and retrospective deprivations of property under section 25(1) of the Constitution; (b) Sections 6A, 7A, 8A, 12A-D, 19B and 19C limit the property rights of copyright owners under section 25(1) of the Constitution as they are contrary to international treaties; and (c) The new copyright exceptions are not needed to align the Bills with international law, and are thus unnecessary. The same is contended with regard to the parallel provisions of the PPAB.

Background

The CAB and PPAB create a new copyright legislative framework in South Africa, and are intended to allow for further limitations and exceptions regarding the reproduction of copyrighted works and performances. The Bills were passed by Parliament in March 2019, and referred to the President for assent. In June 2020, the President remitted the Bills to Parliament in terms of section 79(1) of the Constitution for reconsideration as he had reservations about the constitutionality of the Bills..

The President had two procedural reservations and these related to the proper tagging of the Bills and the public participation process in relation to section 12A’s amendments on fair use, which were not put out for public comment. He also had substantive reservations that: (a) sections 6A(7), 7A(7) and 8A(5) of the CAB potentially constituted arbitrary and retrospective deprivations of property; (b) sections 6A(7)(b), 7A(7)(b) and 8A(5)(b) conferred substantial discretionary legislative powers to the Minister; (c) sections 12A-D, 19B and 19C potentially constituted an arbitrary deprivation of property and risk violating the right to freedom of trade, occupation and profession; (d) the Bill potentially contravened international treaties to which South Africa is a party, including the World Intellectual Property Organization (WIPO) Copyright Treaty, the WIPO Performance and Phonograms Treaty, the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired of Otherwise Disabled (Marrakesh Treaty); and (e) the impact of the new copyright exceptions reached far beyond the authors they sought to protect..

On 21 September 2022, this Court declared sections 6 and 7 of the CAB constitutionally invalid in Blind SA v Minister of Trade, Industry and Competition [2022] ZACC 33; 2023 (2) BCLR 117 (CC) on the grounds that these provisions violated the rights of persons with visual and print disabilities under sections 9(3), 10, 16(1)(b) 29(1) and 30 of the Constitution by requiring the consent of copyright owners to convert works into accessible formats. This Court suspended the declaration of invalidity for 24 months to allow Parliament an opportunity to address the defects. The Court formulated interim provisions to be read into the CAB during the suspension period..

On 29 February 2024, Parliament resubmitted the CAB for the President’s assent and signature. Parliament addressed some of the President’s reservations by amending or deleting the sections in question. The President was satisfied that the procedural complaints were addressed, but took the view that Parliament had failed to accommodate his substantive reservations..

As a result, the President filed the ex parte application in this Court on 10 October 2024. Two judgments were penned..

The first judgment

The first judgment, penned by Mhlantla J, (with Madlanga ADCJ, Dambuza J, Goosen AJ, Kollapen J, Opperman AJ, Rogers J and Tshiqi J concurring) held that this Court has exclusive jurisdiction under section 167(4)(b) to entertain the matter, as it concerned a referral in terms of section 79..

The first judgment held that the Court cannot consider alleged constitutional defects that were not mentioned in the President’s referral or otherwise relevant to reservations raised in the referral. With regard to the lack of consideration of the Socio-Economic Impact Assessment Study, the first judgment held that it may be necessary to consider it as an aspect relevant to the President’s reservations regarding the sections referred to as potentially arbitrary deprivations of property..

The first judgment held that the President’s referral was not irrational on its face. It stated that the President did not rely on international copyright law in his referral, but also had regard to the arbitrary deprivation of property in violation of section 25(1) of the Constitution. The first judgment then held that the relevant standard for constitutionality in a referral matter raised on substantive grounds is whether the Court can ascertain at this stage whether the reasonably foreseeable consequences of a law would render it unconstitutional..

The first judgment held that the referral requirements under section 79 of the Constitution were not met with regard to the President’s referral of sections 6A, 7A and 8A of the CAB in that the President’s referral to Parliament did not refer to an implied retrospective operation, which formed the basis for the referral to the Court. Thus, Parliament was not afforded an opportunity to consider the reservations raised by the referral, which is mandatory under section 79..

Regarding the President’s referral about sections 12A-D, 19B and 19C of the CAB, the first judgment held that the referral was competent, as his reservations mirrored those in his referral letter to Parliament..

The first judgment held that the fair use standard set out in section 12A is not vague. The deprivation imposed on copyright owners by this section is limited and justified, rendering the section constitutional.

The first judgment held that the copyright exceptions in section 12B and 12C, relating to activities including broadcasting, quotations, translations, personal use and temporary reproductions, are not arbitrary deprivations of property in violation of section 25(1) of the Constitution, as they contain limitations, and provide for a narrow scope and sufficient purpose that confine the deprivations to specific circumstances..

In so far as the copyright exceptions in subsections 12D(1)-(5) relating to educational and academic activities are concerned, the first judgment held that these exceptions are arbitrary deprivations of property in violation of section 25(1) of the Constitution. This is because their scope and application go further than necessary to achieve the purpose of the limitation, to vindicate the right to education under section 29 of the Constitution, and improperly displace the State’s duty to fund textbooks and learning materials. The first judgment held that these exceptions affect the use and enjoyment of copyright owners and that the exceptions fail to recognise the publication of textbooks as a legitimate commercial activity. The first judgment held that these subsections could substantially affect the copyright owners’ market. Further, subsections 12D(1)-(5) are in conflict with the international law, specifically the three-step test for copyright exceptions in Article 9(2) of the Berne Convention, which has been further codified in the WIPO Copyright Treaty, the WIPO Performance and Phonograms Treaty, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Marrakesh Treaty. The first judgment held that the copyright exceptions in subsections 12D(1)-(5) were not confined to special circumstances, conflicted with the normal exploitation of the work and unreasonably prejudiced the interests of the copyright owner. The first judgment held that even if the three-step test were satisfied, the exceptions in subsections 12D(1)-(5) would not satisfy the requirements of proportionality and fair use in Article 10(2), which allows member states to permit the use of works by way of illustration for teaching.

The first judgment held that the copyright exceptions in subsections 12D(6)-(9), relating to educational and academic activities, are not arbitrary deprivations of property, as the limitations are narrow in scope..

The first judgment held that the copyright exceptions in sections 19B and 19C, relating to the interoperability of computer programs and the use of copyrighted material by libraries, archives, museums and galleries respectively, are not arbitrary deprivations of property, as the exceptions are necessary for the public interest and limited in scope. Both sections expressly prohibit the use of copyright works for commercial purposes. The first judgment also held that section 19C is not vague..

The first judgment held that the parallel provisions in the PPAB must be interpreted as constitutional or unconstitutional in relation to the relevant provisions of the CAB..

The first judgment held that the Court’s enquiry is confined to the President’s reservations in the referral notice, and the declaration of constitutional validity with regard to sections 12A-C, 12D(6)-(9), 19B and 19C does not deprive anyone from pursuing ordinary avenues of constitutional challenge based on the practical impact and alleged rights deprivation of the provisions once enacted..

The second judgment

The second judgment, penned by Majiedt J, agreed generally with the first judgment but departed from it on one, narrow issue only: the constitutionality of section 12D(1)-(5) of the Copyright Amendment Bill (CAB). The judgment rejected the conclusion that section 12D(1)-(5) constitutes an arbitrary deprivation of property and concluded that it is constitutionally valid..

The essence of the second judgment is that the first judgment places undue emphasis on copyright interests and property rights, and insufficient weight on the international human rights and constitutional rights advanced by educational exceptions. It stressed that educational access engages not only the right to education, but also equality, the best interests of the child and South Africa's obligations under numerous international and regional human rights instruments. Considerable reliance is further placed on empirical evidence from SACMEQ, UNESCO and the Fees Commission demonstrating the importance of access to textbooks and learning materials for educational outcomes, particularly for poor and vulnerable learners..

Regarding the Berne Convention, Majiedt J concluded that the first judgment places undue emphasis on Article 9(2) and insufficient weight on Article 10(2). Applying the principle of lex specialis, he finds that Article 10(2), which specifically regulates educational uses of copyrighted works, is the relevant international standard. Articles 9(2) and 10(2) are intended to operate harmoniously and assessing educational exceptions exclusively through Article 9(2) would substantially diminish the role of Article 10(2). Educational exceptions must therefore be assessed primarily through the standards contained in Article 10(2), namely fair practice and use justified by the educational purpose..

Against that background, the judgment found that section 12D reflects a reasonable attempt by Parliament to reconcile South Africa's copyright obligations with its constitutional and international obligations to promote educational access. The educational exceptions contained in section 12D are directed at facilitating access to learning materials while remaining subject to important internal limitations and safeguards..

The second judgment also emphasised the nature of the challenge before the Court. Because the CAB has not yet been enacted, the constitutional challenge is necessarily abstract. Relying on this Court's warning in Savoi against "peering into the future", Majiedt J stressed that a party challenging legislation in the abstract bears a particularly heavy burden. In the absence of a concrete factual matrix, the challenger must demonstrate that the provision is constitutionally defective on its face and in its ordinary operation. Mere speculation about possible future abuses is insufficient. The judgment found that the first judgment effectively conducts a proportionality analysis without evidence concerning how section 12D will operate in practice or its actual impact on copyright owners..

A further difficulty identified by Majiedt J is that the balancing exercise between copyright interests and educational rights is inherently fact-sensitive. Questions concerning the extent of copying, the availability of licences, the economic consequences for copyright owners and the educational benefits flowing from the exceptions can properly be assessed only in concrete disputes. In those circumstances, he concluded that section 12D cannot be invalidated on a facial challenge based on hypothetical concerns about its future application..

The dissent also notes that the first judgment itself accepts several propositions that support the constitutionality of section 12D. It recognises that copyright is a qualified form of property, that not every interference with copyright engages section 25(1), and that arbitrariness requires a contextual assessment of the relationship between means and ends. Majiedt J found it difficult to reconcile these concessions with the conclusion that section 12D alone falls foul of the Constitution..

The judgment then addressed the six principal concerns advanced by the Copyright and Publishers Association of South Africa (CAPA). It concluded that these concerns largely arise from reading section 12D's provisions in isolation rather than as an integrated scheme. On a proper reading, section 12D does not create a free-standing licence to copy copyrighted works. Instead, the various subsections operate together to confine educational copying to specific contexts, subject it to licensing mechanisms where reasonably available, restrict it to noncommercial uses, and ensure that any copying remains justified by the educational purpose. The judgment therefore rejected the contention that section 12D creates a free-for-all copying regime..

In conclusion, the second judgment emphasised that considerable weight is attached to South Africa's constitutional and international obligations concerning education, equality and the best interests of the child. For Majiedt J, section 12D serves important constitutional purposes, advances those obligations, and contains sufficient safeguards to protect copyright interests. It therefore does not amount to an arbitrary deprivation of property and, even if it limits copyright interests, any such limitation would in any event be justified under section 36 of the Constitution. The judgment would accordingly dismiss all of the President's reservations and uphold the constitutional validity of both Bills..

Order

Therefore, the Constitutional Court issued the following order:.

 

The Full judgment  here