Case: Blind SA v Minister of Trade, Industry and Competition (CCT320/21)
Court: Constitutional Court of South Africa
Date of hearing: 12 May 2022
Date of judgment: 21 September 2022
Last updated: 21 September 2022
Case overview: Blind SA challenged the constitutionality of certain provisions of the Copyright Act 98 of 1978 (“Copyright Act”) in the High Court of South Africa, arguing that the Act does not include provisions designed to ensure that persons with visual and print disabilities can access works under copyright. Blind SA argued that this violates an array of rights of persons who are blind or visually impaired. The matter was unopposed.
Media Monitoring Africa (MMA), represented by Power & Associates, successfully applied to intervene as an amicus curiae in the High Court. MMA argued that the present copyright regime in South Africa hinders the ability of person’s with visual and disabilities to meaningful advance their rights to freedom of expression and access to information. MMA argued further that there is a pressing need to realise the right to freedom of expression and the ability to share knowledge and ideas in the digital era. In addition, MMA illustrated that an appropriate balance can be struck to ensure that freedom of expression can be fostered, rather than restrained, by copyright laws. The International Committee of Jurists and Recreate Action were also admitted as amici curiae in this matter. The matter was heard on 21 September 2021, and on 7 December 2021, Mbongwe J handed down judgment.
In his ruling, Mbongwe J confirmed that the Copyright Act, as it stands, ought to be declared unconstitutional to the extent that it fails to make provision for exceptions that enable access to copyrights works by persons with visual and print disabilities. Mbongwe J highlighted key arguments raised by MMA, including that “states are enjoined to take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and access to information and ideas on an equal basis with others and through all forms of communication.”
Following the High Court decision, Blind SA approached the Constitutional Court to have the order confirmed and the matter was set-down for hearing on Tuesday, 12 May 2022. MMA was admitted as amicus curiae in the confirmation proceedings on 16 March 2022. The International Committee of Jurists and Professor Owen Dean were also admitted as amici curiae.
On 21 September 2022, Unterhalter AJ (unanimous) handed down the judgment of the Constitutional Court, confirming portions of the High Court order. The judgment noted:
“Access to the vast universe of knowledge and imagination that is to be found in literary works is a condition for advancement. It also promotes an engagement with the world of ideas, and that is an important attribute of the well-being of persons. That those with print and visual disabilities should be so radically compromised in the access they enjoy to literary works by reason of the requirement of authorisation is to heap indignity upon the adversities these persons face. The requirement of authorisation thus infringes the right to dignity in section 10 of the Constitution (at para 71).”
As a result, the Constitutional Court declared certain sections of the Copyright Act unconstitutional, suspended the declaration of invalidity for 24 hours, and read-in a new section 13D to ensure that persons with visual and print disabilities have access to literary works while Parliament remedies the defects in the Copyright Act.
- High Court Judgment (7 December 2021)
- MMA’s application for admission as amicus curiae (9 March 2022) (609kb)
- Constitutional Court order admitting MMA as an amicus curiae (16 March 2022) (708kb)
- MMA’s written submissions (23 March 2022) (316kb)
- Blind SA’s written submissions (17 February 2022) (363kb)
- First Respondent’s written submissions (3 March 2022) (323kb)
- Owen Dean’s written submissions (11 March 2022) (391kb)
- ICJ’s Written Submissions (30 March 2022) (642kb)
- Blind SA’s supplementary written submissions (31 March 2022) (249kb)
- Owen Dean’s written submissions in response to MMA (8 April 2022) (162kb)
- Owen Dean’s written submissions in response to ICJ (13 April 2022) (82kb)
- Judgment of the Constitutional Court (21 September 2022)