The views expressed do not reflect those of any POLICY WATCH SA clients
According to Wikipedia (what would we do without them?), a ‘useful idiot’ is someone who fights for a cause without fully understanding its likely consequences – unwittingly allowing themselves to be manipulated by its (inevitably) political proponents. But if John Sweeney’s novel (using the term as a title) is anything to go by, before becoming ‘useful idiots’ some of us face a choice: to be perceived as one simply for the sake of survival, or to risk life and limb by refusing to toe the line.
Of course, in the context of ‘the first great Soviet lie’ – Stalin’s farm collectivisation, widely understood to have caused the Ukranian famine of 1932/33 (Foundation for Economic Education) – what kind of choice is that for the novel’s main character, a Welsh journalist exposed to the horrors of a Stalinist purge (in this case, of small-scale farmers in the Ukraine)? But we digress ...
Although reporting on the Copyright Amendment Bill’s two tortuous passages through Parliament undoubtedly had its moments, whether Policy Watch SA writers should be lumped with other ‘useful idiots’ contributing to the eight-year debacle-of-a-process is a moot point. Undoubtedly aware of their vulnerability to manipulation, they did their best to remain impartial. Which wasn’t easy – especially given overwhelming evidence of administrative incompetence, the vagaries of ill-informed committee members across the ideological spectrum, the time-consuming fiasco of an obviously superficial (possibly even staged) provincial public participation process, and the misguided utterances of so many embarrassingly naive stakeholders.
That said, now that the fate of the Copyright and Performers’ Protection Amendment Bills lies with the Constitutional Court, we offer our final thoughts on recent developments.
Firstly, the sequence in which non-profit organisation Section27 and the Presidency respectively announced their decisions to approach the Constitutional Court for rulings merits closer scrutiny.
On 9 October 2024, Section27 issued a media statement confirming that it had ‘launched an urgent application against the President’ with the intention of obtaining a Constitutional Court ruling either requiring him to immediately sign the Copyright Amendment Bill into law – or reinstating the lapsed read-in remedy included in its September 2022 judgment, facilitating access by the blind and print disabled to copyright protected printed material.
The President’s letter to the Constitutional Court requesting a ruling on certain clauses of the Copyright Amendment Bill is dated 10 October 2024. Presumably, that’s when it was sent to and received by the Court.
On 15 October 2024, the Presidency issued a media statement on President Cyril Ramaphosa’s decision to approach the Constitutional Court for a ruling on the Copyright and Performers’ Protection Amendment Bills. No details of his reservations were provided.
On the morning of 16 October 2024, Blind SA vice president Christo de Klerk told SAfmNews that, in the light of the President’s decision not to sight the Copyright Amendment Bill but instead to approach the Constitutional Court for a ruling, Section27 will seek the reinstatement of the Court’s September 2022 read-in remedy, which lapsed on 21 September 2024. At the time, De Klerk was not aware of the details of the President’s reservations about the Bill’s constitutionality.
Those details were included in a 16 October 2024 Presidency media statement on the President’s upcoming programme and other matters of public interest. The statement was issued following an afternoon media briefing on that date.
A copy of the President’s letter was eventually tabled in Parliament among papers dated 16 October 2024 but only published the next day.
On 16 October 2024, an article in the Mail & Guardian quoted presidential spokesperson and ex-journalist Vincent Magwenya as having said, “the deadline the Court gave to Parliament, to remedy the defect by September this year, does not apply to the President”.
On 18 October 2024, an IOL article quoted Magwenya as having called the Section27 Constitutional Court application “bizarre ... as if there is a set timeline in which the President can exercise his authority”.
Perhaps, at the time, presidential spokesperson Vincent Magwenya wasn’t aware of the link between the Blind SA Constitutional Court deadline and the Copyright Amendment Bill’s clause 40 – among other things requiring a proposed new section 19D to be inserted into the principal statute, and to come into force as soon as the Bill is signed into law. Inserted by the Bill’s clause 22, section 19D provides for ‘general exceptions’ intended to facilitate access to copyright protected work for people with disabilities. It was informed by the Blind SA Constitutional Court ruling.
Perhaps, at the time, Magwenya also wasn’t aware that in April 2024 the previous Parliament’s National Assembly Trade, Industry & Competition Committee tabled a legacy report in the House in which a section on pages 40 and 41 (parliamentary papers pages 69 and 70) expressly advises the seventh Parliament’s National Assembly committee to monitor the presidential process of signing the Bill into law. The report also notes that, should the Bill’s enactment before the expiry of the Constitutional Court deadline seem unlikely, the committee should itself prepare a Bill giving practical effect to the ruling. With that in mind, the report advises the committee to ask the House to approach the Court for an extension allowing sufficient time for the committee to prepare the Bill and both Houses to pass it.
These recommendations were made in the light of discussions informed by input from parliamentary legal adviser Charmaine van der Merwe.
So, whom are we to believe? Presidential spokesperson and ex-journalist Vincent Magwenya or parliamentary legal adviser Advocate Charmaine van der Merwe?
To further muddy the waters, the Department of Sport, Arts & Culture’s 2024/25 annual performance plan includes a lengthy, somewhat scathing section on the Copyright Amendment Bill – among other things predicting that it will “end up before the Constitutional Court, whether through a referral made by President Ramaphosa and/or an independent legal challenge brought by creative industry stakeholders”. Signed off by former Sport, Arts & Culture Minister Zizi Kodwa, the plan was presented to the seventh Parliament’s National Assembly Sport, Arts & Culture Committee in July 2024, during a meeting at which newly appointed Minister Gayton McKenzie introduced himself. The Minister has since made his position on the Bill clear, which is that under no circumstances should it be signed into law.
We’re in no position to comment on the merits or otherwise of the Bill or the policy approach underpinning its contents. But the entire process was a farce.
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