On Friday, 26 June 2026, the Constitutional Court handed down judgment in Ex parte President of the Republic of South Africa: In re Constitutionality of the Copyright Amendment Bill (CAB) and the Performers’ Protection Amendment Bill (PPAB). The case follows the President’s decision to refer the CAB and the PPAB to the Constitutional Court in terms of section 79 (4) of the Constitution, because he had reservations on the constitutionality of the Bill.
Blind SA’s involvement in this matter stems from a string of cases: In Blind SA I (2022), the Constitutional Court found the Copyright Act unconstitutional for lacking an accessible-format exception, and read a temporary exception, section 13A, into the Act, with a 24-month deadline for Parliament to legislate permanently. When that deadline lapsed in September 2024 without the President having signed the CAB, the protection fell away. Blind SA, represented by SECTION27, secured interim relief later that year, and in Blind SA II (May 2025), the Court read a permanent, operational accessible-format exception directly into the Act, modelled on section 19D of the CAB. This section extends to cover all disabilities and permitting cross-border exchange of accessible materials. Notably, the President’s reservations in the referral matter never placed section 19D itself in issue.
The Court in the President’s referral of the CAB and PPAB, dismissed most of the President’s concerns, confirming that the majority of CAB is constitutional. Justice Mhlantla, penning the majority judgment, in which seven other judges concurred, held that subsections 12D(1)-(5), which provide for copyright exceptions in relation to educational materials, infringe on the rights of the copyright owner. The other provisions regarding exceptions in relation to materials for libraries, archives and museums were rendered constitutional. Finally, the Court held that the royalties’ provisions were incompetent. Justice Majiedt, in a dissenting judgment, held that he would have upheld the constitutionality of subsections 12D (1)-(5), as it entrenched the right to basic education, equality and the best interests of the child.
SECTION27 and Blind SA align with the minority judgment. Justice Majiedt opined that the general educational exceptions in section 12D are not an arbitrary deprivation of property, but a constitutionally justified and carefully calibrated response to South Africa’s deeply unequal, apartheid-inherited education system. As the dissent makes clear, there is a well-documented and direct relationship between access to learning materials and educational outcomes, with learners in poorer provinces and lower socio-economic groups consistently performing worse than their wealthier peers. Justice Majiedt’s judgment draws on this evidentiary record, together with the Constitutional Court’s own findings in Blind SA I, to conclude that copyright operates as a real barrier to access to education for the poorest learners, in much the same way that it has long operated as a barrier for learners with visual and print disabilities.
For decades, South Africa’s copyright framework has prevented blind and visually impaired persons from lawfully accessing books in Braille, audio, large print and other accessible formats. Globally, fewer than 10% of published works are available in accessible formats; in developing countries, often fewer than 1%. The CAB was intended to fix this by introducing exceptions allowing accessible-format copies to be made and shared without a copyright holder’s permission.
It has been years since the CAB went through legislative process and this judgment extends the long wait for blind and visually impaired persons to obtain certainty in the law. Importantly, however, the Constitutional Court judgment does not disturb the interim relief secured in Blind SA I and Blind SA II. The accessible-format exception the Court read into the Copyright Act in Blind SA II, modelled on section 19D of the CAB but covering all persons with disabilities and allowing accessible materials to cross borders, remains fully in force after this judgment. Blind, visually impaired and otherwise disabled persons and the educators and institutions that serve them can therefore continue to rely on the existing interim exception for lawful access to accessible-format copies pending the enactment of the CAB.
South Africa has also yet to accede to the Marrakesh Treaty, which obliges member states to enable accessible-format exceptions and their cross-border exchange. SECTION27 and Blind SA reiterate their call on the Department of Trade, Industry, and Competition to fast-track accession without further delay.
For media enquiries contact:
Pearl Nicodemus | nicodemus@section27.org.za | 082 298 2636
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