— Sanya Samtani[1]
On 21 and 22 May 2025, the South African Constitutional Court heard the matter of Ex Parte President of the Republic of South Africa: In re Constitutionality of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill. The hearing in these ‘Referral proceedings’ was significant as it was only the second time in South Africa’s history that the President triggered an exceptional constitutional mechanism to refer a Bill to the Constitutional Court for a decision on the constitutionality of certain aspects instead of signing it into law. The Court’s decision in this case will determine the fate of a long drawn-out legislative reform process aiming to transform and modernise South Africa’s apartheid-era copyright law and bring it into the constitutional era.
The Court adjourned to deliberate on the matter and the judgment will be handed down in a few months. In this blog post, I briefly outline the arguments advanced by the parties and amici curiae and highlight the issues for determination by the Court. While the Performers’ Protection Amendment Bill is also at issue, I focus on the Copyright Amendment Bill [B13F-2017] (‘the Bill’) as the aspects of the Performers’ Protection Amendment Bill that are at issue are those that incorporate the Copyright Amendment Bill. The hearing focused almost exclusively on the Copyright Amendment Bill.
This blog post is in two parts: Part I deals with the procedural history that led to the Presidential Referral of the Bill and sets out an overview of the referral proceedings, and Part II deals with the issues raised during the hearing and sets out the next steps.
The long and winding road to the Constitutional Court
For those coming to this issue afresh, South Africa has been in the process of reforming its copyright law for over a decade, if not longer. The current Copyright Act 98 of 1978 is old-order legislation, enacted prior to democracy. While the South African Constitution allows for apartheid era legislation to be saved if it can be interpreted to be consistent with the Constitution, the Copyright Act freezes pre-constitutional economic and social relationships in the creative industry and knowledge production processes. While some parts of it may be read compatibly with the Constitution, other parts of it are in need of urgent reform. As the South African Parliament has recognised in the memorandum on the objects of the Bill, the existing arrangements have had adverse impacts upon artists due to the “power imbalance, vulnerabilities and abuse taking place in the music industry”, people with disabilities, educators and researchers. In addition to addressing this, the Bill seeks to make South African copyright law consonant with “the ever evolving digital space” as the current Act is “outdated and has not been effective in a number of areas”. In doing so, the Bill clarifies in some detail the powers and functions of the Copyright Tribunal and, for the first time, regulates collective management organisations.
The procedural history leading up to the Constitutional Court hearing is central to understanding why the enactment of the Bill as a whole is subject to the Court’s determination of two narrow and specific issues. I address this briefly. Parliament passed the Copyright Amendment Bill [B13B-2017] in March 2019. The President, instead of signing the Bill, triggered a constitutional mechanism to refer the Bill back to Parliament citing procedural and substantive constitutional reservations in June 2020 (‘2020 Referral letter’). At that stage, concerned about pervasive and persistent copyright discrimination being further exacerbated by the delay, Blind SA – a disability rights organisation by and for people with visual and print disabilities – launched litigation against the state for interim relief pending the conclusion of the legislative reform process. Consequently, in 2022, the Constitutional Court in Blind SA v Minister of Trade, Industry and Competition (‘Blind SA I’) held that the Copyright Act 1978 was unconstitutional to the extent that it unfairly discriminated against people with visual and print disabilities and read-in a court-crafted remedy to rectify this discrimination with a deadline of two years from the date of judgment for Parliament to enact legislation. The remedy drew heavily from the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (‘Marrakesh VIP Treaty’), on the basis that this treaty was in the process of being domesticated through copyright reform, though South Africa had not yet acceded to it.
In the meanwhile, over a period of approximately four years, Parliament considered and addressed the President’s constitutional reservations and additionally gave draft legislative effect to the Court’s judgment in Blind SA I passing the Copyright Amendment Bill [B13F-2017] in February 2024. The deadline set by the Constitutional Court in Blind SA I lapsed in September 2024, along with the court-crafted remedy, and although Parliament passed the Bill, the President did not take action in response to Parliament’s amended version. Blind SA then urgently sought from the Constitutional Court a re-reading in of the same remedy or any other remedy that would be just and equitable following the lapsing of the remedy.
Days later, the President opted for an exceptional constitutional mechanism by which he referred the Bill to the Constitutional Court (‘2024 Referral letter’) citing that two of his 2020 constitutional reservations had not been ‘fully accommodated’ by Parliament (‘the Referral proceedings’ discussed below). The Court passed an interim order in December 2024 reading in once again the remedy in Blind SA I until the final determination of the matter – which took place on 7 May 2025. In Blind SA v President of the Republic of South Africa (‘Blind SA II’), rather than further extending the Blind SA I remedy, the Court took note of the significantly advanced legislative process and the fact that the President did not have any reservations concerning the provisions regarding people with disabilities and, instead, read-in those provisions and the relevant definitions from the Bill into law, until such time as amended copyright law came into force. This ensured that people with all disabilities could shift formats to gain access to all types of works and formalised cross-border exchange arrangements, giving effect to constitutional imperatives of non-discrimination and potentially transforming the law to align with the Marrakesh VIP Treaty.
After a few postponements, the Court set down the Referral proceedings for hearing on 21 and 22 May 2025. As a quirk of the Court’s initial consolidation and subsequent de-consolidation of urgent litigation by Blind SA followed by the President’s referral, Blind SA were also granted the status of an interested party in the Referral proceedings with an opportunity to make oral and written submissions. I discuss the arguments advanced by all the President, Parliament, interested parties and amici in Part II of this blog post.
Referral proceedings at the Constitutional Court
When the President receives an amended version of a Bill that he has previously sent back with reservations to Parliament, he has a choice under section 79 of the South African Constitution. If he is not satisfied that Parliament has fully accommodated his reservations, he can either assent to the Bill in any event, or refer the Bill to the Constitutional Court. Here, the President exercised his choice to refer the Bill to the Constitutional Court on the basis that two of his six reservations were not fully accommodated. Jurisdictionally, his concerns at this stage must be limited to those concerns that he has raised for Parliament to address previously – they cannot include new concerns. First, as set out in his 2024 Referral letter, the President asserted that notwithstanding Parliament’s deletion of certain specific provisions mentioned in his 2020 Referral letter, the fair and equitable remuneration provisions (proposed sections 6A, 7A and 8A) of the Bill continued to operate retrospectively, running the risk of arbitrarily depriving copyright owners of their property, potentially falling foul of the constitutional property provision (section 25(1) of the Constitution). Second, as set out in his 2024 Referral letter, the President asserted that the fair use, educational and research exceptions, incidental exceptions, and provisions providing for the operation of libraries, archives, museums and galleries (proposed sections 12A-D and 19B and C) also ran the risk of arbitrarily depriving copyright owners of their property, potentially falling foul of the constitutional property clause (section 25(1) of the Constitution) on the basis that South Africa’s international law obligations did not require such exceptions to be domestically enacted.
The proceedings at the Court are limited to the determination of the constitutionality of these two sets of provisions on the basis advanced by the President. However, the stakes are high. The rest of the Bill is in abeyance until the Court decides whether the President’s continued reservations have merit or not. Should the Court decide that the President’s continued reservations have merit, the Court will have to declare that these provisions are unconstitutional for the reasons that the President advanced, potentially leaving the entire Bill up for reconsideration – should the relevant Minister decide to reintroduce it to Parliament (unless the Court crafts a specific remedy to the contrary). However, should the Court decide that the President’s continued reservations do not have merit, it must direct the President to assent to and sign the Bill into law. While these exceptional proceedings raise several novel legal questions, I focus on the arguments advanced by the various parties and amici before the Court and those issues that the Court is likely to consider from the questions that were asked at the hearing.
In addition to the President explaining his reservations in written and oral submissions, Parliament also presented written and oral submissions setting out the process followed. As per the Rules of the Court, two political parties represented in Parliament (the Democratic Alliance (‘DA’) and the Freedom Front Plus (‘FF+’)) exercised their right to submit written submissions in the matter, and were also invited to present oral submissions. As mentioned above, Blind SA were granted the right to present written and oral submissions as an interested party. There were additionally eight amici curiae who applied to the Court for permission to make oral submissions and filed written submissions. They were: the National Association of Broadcasters (‘NAB’); Copyright Coalition South Africa (‘CCSA’); Recreate Action (on behalf of its affiliates the South African Democratic Teachers Union, South African Guild of Actors, Independent Directors Association Africa, Library and Information Association of South Africa, Authors Alliance, Committee for Higher Education Libraries of South Africa, Creative Commons South Africa, National Professional Teachers Organisation South Africa, Higher and Further Education Disability Services Association, Music Makers United, South African Finishing Artists and Imaging Technicians Society, Southern African Regional Universities Association, Data Science for Social Impact, Wikimedia South Africa, Wits Centre for Deaf Studies, Association for Progressive Communications and the South African National Deaf Association); Jonathan Shapiro (‘Zapiro’, one of South Africa’s most well-known political cartoonists); Centre for Child Law and the UNESCO Chair: Education Law in Africa (‘CCL/UNESCO’); Recording Industry South Africa (‘RISA’); Composers, Authors and Publishers Association, Commercial Producers Association of South Africa NPC, Music Publishers Association of South Africa, National Association of Model Agencies, PEN Afrikaans, Publishers Association South Africa, South African Association of Stills Producers (‘CAPA amici’); and the South African National Editors Forum and Campaign for Free Expression (‘SANEF/CFE’). Despite initially only permitting the amici to present written submissions (except for CCL/UNESCO who were permitted to make oral submissions as well), on its second day of hearing the Court invited all the amici to make oral submissions and address the issues raised to that point by the Court. CCSA did not participate in the oral proceedings but made written submissions.
In Part II of this blogpost, I discuss the issues raised during the hearing in turn and the next steps that are likely to follow.
[1] Sanya Samtani BA LLB (Hons), BCL (Oxon.) DPhil (Oxon.) is a Senior Researcher at the Mandela Institute at the University of the Witwatersrand, Johannesburg. The author has acted as an academic advisor Blind SA in this case and previous copyright litigation. ORCiD: https://orcid.org/0000-0003-0448-8798
