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[1]            On 10 October 2024, the President of the Republic of South Africa launched an application on an ex parte (without notice to other parties) basis in terms of sections 79(4)[1] and 84(2)(c)[2] of the Constitution.  The application concerns proposed amendments to the Copyright Act[3] (Act) and the Performers’ Protection Act,[4] and in particular, whether certain sections in the Copyright Amendment Bill (CAB) and the Performers’ Protection Amendment Bill (PPAB) are constitutional.

Background

[2]            The CAB and PPAB were published for public comment on 27 July 2015.  The CAB and PPAB create a new copyright legislative framework in South Africa.  The purpose of the CAB is, among others, to “allow for further limitations and exceptions regarding the reproduction of copyright works” and to “provide for access to copyright works by persons with disabilities”.  Similarly, the PPAB seeks to broaden the restrictions on the use of performances.  I will refer to the CAB and PPAB collectively as the Bills.  The Bills were introduced in the National Assembly on 16 May 2017 and passed by Parliament in March 2019.  The Bills were then referred to the President for assent.  After considering the Bills, the President had reservations about their constitutionality and, in June 2020, he referred the Bills back to Parliament for reconsideration in terms of section 79(1) of the Constitution.

[3]            The President had two procedural reservations: the correct tagging of the Bills and the public participation process.  The referral letter to Parliament stated that the reservations concerning sections 6A(7), 7A(7) and 8A(5) of the CAB[5] were that they may constitute arbitrary and retrospective deprivation of property in that, in the future, copyright owners would be entitled to a lesser share of the fruits of their property than before.  The letter continued to express reservations about the amendments to section 12A on fair use, claiming that such amendments were not put out for public comment.  Additionally, the President raised his concerns about the delegation of legislative power to the Minister of Trade and Industry (Minister).  The letter asserted that sections 6A(7)(b), 7A(7)(b) and 8A(5)(b) unconstitutionally conferred substantial discretionary legislative powers to the Minister.  The letter continued with reservations in respect of sections 12A-D, 19B and 19C, based on concerns that they constitute an arbitrary deprivation of property and risk violating the right to freedom of trade, occupation and profession.