Blind SA v Minister of Trade, Industry and Competition and Others CCT320/21: A note on s19D

By Caroline Ncube

There are several aspects to this case but this note is only about what the Constitutional Court said about s19 D to explain why it was not read into the Copyright Act by the court and how this impacts on going legislative processes.  

Due to the inordinate delay in reforming the Copyright Act, 1978 and the continuing harm/disadvantage being suffered by persons with visual and print disabilities who sought to access copyright protected literary works (and artistic works included in them), BlindSA successfully challenged the constitutionality of the Act in the High Court ( Blind SA v Ministry of Trade, Industry and Competition and Others (14996/21) [2021] ZAGPPHC 871 (7 December 2021)). The application was granted unopposed. BlindSA then filed an application for confirmation of the order by the Constitutional Court. In addition to the main parties in the case, three others participated as friends of the court (amicus curae), namely Professor Dean, Media Monitoring Africa Trust and the International Commission of Jurists.

The unanimous Constitutional Court decision, authored by Unterhalter AJ, confirmed the High Court’s findings.

[2] It is declared that sections 6 and 7, read with section 23 of the Copyright Act 98 of 1978, are unconstitutional, invalid and inconsistent with the rights of persons with visual and print disabilities, as set out in sections 9(3), 10, 16(1)(b), 29(1) and 30 of the Constitution, to the extent that these provisions of the Copyright Act limit the access of such persons to published literary works, and artistic works as may be included in such literary works, in accessible format copies.”

This finding of invalidity is suspended for 24 months and during this period, s 13A crafted by the court, will apply.

It is very important to note the disabilities (print and visual disabilities) and the works (literary works and artistic works included in literary works) in question. The Constitutional Court emphasised the scope of the pleaded case several times, for example, at paragraphs 15, 47, 58.

Having confirmed the finding of constitutional invalidity, the Constitutional Court considered whether the High Court’s reading in of s19D was an appropriate remedy. Since the case that was successfully argued by BlindSA only related to visual and print disabilities and literary works and artistic works included in them, the court decided that the remedy it provided had to address those aspects only. Section 19D is broader in coverage regarding both disabilities and works. The court was very clear in setting this reason out.

[105] Once the ambit of the case is properly demarcated, the wholesale adoption of section 19D cannot be ordered as interim relief. It covers grounds beyond the challenge established by Blind SA. It is legislation intended to permit South Africa to ratify the Marrakesh Treaty. Whether it does so adequately is beyond the bounds of the case before us.

The Constitutional Court said evaluating the adequacy in relation to the Marrakesh Treaty was beyond its mandate. It noted that the Minister had indicated that at the time of the hearing (May 2022) the provision was then being revised. It was passed again by the National Assembly on 1 September 2022 and has been sent to the National Council of Provinces (see PMG Bill Tracker). Since s 19D was too broad to fix the constitutional defects, another solution had to be found. The first amicus had argued that s 13 of the Copyright Act saved the Act from invalidity and that regulations under it would be an adequate remedy and offered proposed text (para 31). The Constitutional Court disagreed, saying:

[89] There is no justification to reason that accessible format copies must be restricted to reproducing original literary works so as to permit section 13 to save the Copyright Act from constitutional invalidity. Quite the opposite is true. Those who serve the interests of persons with print and visual disabilities should be given the greatest latitude to produce literary works in accessible format copies and to develop technologies to do so that are ever better at rendering the original work in the best possible way, tailored to the varied incidents of the impairments such persons suffer. That requires, as a matter of probability, the freedom to make adaptations and not merely reproductions.

[90] Once that is so, the power conferred upon the Minister in section 13 cannot adequately serve to cure the constitutional invalidity of the Copyright Act that I have identified.

Therefore, the court read in its own s 13A into the Act. This provision addresses only the disabilities and works raised in the pleaded case. The section was also drafted to avoid relying on regulations to define concepts because the court has no power to direct that regulations must be passed to support the provision it reads in (para 108). 

In conclusion, the BlindSA case was limited to an exception to enable persons with print and visual disabilities to obtain and use accessible format copies of literary works and artistic works included in those literary works. Accordingly, the declaration of constitutional invalidity and the remedy provided by the Constitutional Court is limited to that scope. The state has a constitutional duty to address the needs of persons with all disabilities, so the legislative solution crafted in the Bill’s s 19D extends to other works. As noted by the court,

[para 32] According to the Minister, section 19D encompasses a broader government policy to align the Copyright Act with various international obligations and protect the rights of all disabled persons.

The Constitutional Court did not make any finding on the lawfulness and/or adequacy s 19D and the legislature is not precluded by the interim reading in of s 13A into the Copyright Act from continuing with its processes to consider and pass it in alignment with relevant national policy, constitutional duties and international obligations.