Blind SA v President of the Republic of South Africa and Others

Blind SA, an organisation advocating for the rights of visually impaired persons, launched an urgent application in the Constitutional Court for direct access after the 24-month suspension period of this Court’s 2022 judgment in Blind SA I expired on 21 September 2024. In Blind SA I, the Court had declared sections 6 and 7 of the Copyright Act 98 of 1978 unconstitutional for failing to accommodate persons with visual and print disabilities; it read in an interim section 13A and suspended the declaration of invalidity to allow Parliament to cure the defect. Parliament subsequently passed the Copyright Amendment Bill (CAB), which included clause 19D to address the defect, but the President delayed assenting to the Bill. When the suspension period lapsed, the interim reading-in of section 13A fell away, leaving a legislative lacuna. The President only referred the CAB to the Constitutional Court for a constitutional determination after the suspension period had expired. Blind SA sought urgent interim relief to restore protection for persons with visual and print disabilities pending final legislation, either by reinstating section 13A or reading in clause 19D of the CAB.

• Whether the Constitutional Court has jurisdiction to hear the application and whether the matter is urgent.
• Whether the Court has the power to grant supplementary just and equitable relief under section 172(1)(b) of the Constitution after the suspension period of a declaration of invalidity has lapsed.
• Whether the Court should read in the lapsed section 13A or the current version of clause 19D of the Copyright Amendment Bill as interim relief pending the commencement of remedial legislation.
• Whether the President and/or other respondents should be ordered to pay the costs of the application.

Direct access was granted. Pending the coming into force of legislation remedying the constitutional defects in the Copyright Act 98 of 1978 as identified by this Court’s judgment and order of 21 September 2022, the Copyright Act 98 of 1978 was deemed to include a new section 19D (as set out in the order) providing exceptions for persons with disabilities to make, supply and exchange accessible format copies of copyright works. The reading-in of section 19D was to remain in effect until the remedial legislation comes into force. The President of the Republic of South Africa was ordered to pay the costs of the application, including the costs of two counsel.

The Constitutional Court has the power under section 172(1)(b) of the Constitution to supplement its own orders with just and equitable relief after the suspension period of a declaration of invalidity has expired, without reviving provisions declared invalid, by granting interim free-standing relief to prevent a violation of fundamental rights. In determining the appropriate interim relief, a court may read into an Act a provision from a Bill already passed by Parliament but not yet assented to, where that provision represents Parliament’s chosen remedy for a constitutional defect, is broader and more rights-protective than the court’s earlier interim measure, and operates on a temporary basis pending commencement of the legislation.

The Court noted that South Africa has not yet acceded to the Marrakesh VIP Treaty and therefore does not currently bear binding international obligations under that instrument, although aligning national law with the Treaty places the country in an advantageous position for future accession. The Court also observed that other respondents, such as the Minister of Trade, Industry and Competition, had fulfilled their constitutional duties and could not be faulted for the President’s delay, and that the President’s failure to communicate his inability to meet the deadline was the primary cause of the litigation.

The judgment affirms the Constitutional Court’s power to grant free-standing supplementary just and equitable relief under section 172(1)(b) of the Constitution after a suspension period has lapsed, thereby preventing a constitutional vacuum and continuing protection of fundamental rights. It underscores the rights of persons with disabilities to equality, dignity and education within intellectual property law. By preferring Parliament’s latest legislative solution (clause 19D) over the Court’s earlier interim provision (section 13A), the judgment demonstrates how courts can respect the legislative function while protecting fundamental rights during executive delay. It also advances alignment of South African copyright law with international disability-rights standards such as the Marrakesh VIP Treaty.