Case: Blind SA v Minister of Trade, Industry and Competition (14996/21)
Court: High Court of South Africa, Gauteng Division, Pretoria
Judge: Mbongwe J
Date of hearing: 21 September 2021
Last updated: 8 December 2021
Case overview: Blind SA challenged the constitutionality of certain provisions of the Copyright Act 98 of 1978, 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 Singh Inc., successfully applied to intervene as an amicus curiae in this matter. 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 Main Application was successfully 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.”
Blind SA have approached the Constitutional Court to have the order confirmed. MMA and ICJ have applied to be admitted as amicus curiae in the confirmation proceedings.