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Recent developments (in reverse date order):
On 16 October 2024, and article published in the Mail & Guardian quoted presidential spokesperson 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”. No reference was made to the status of the read-in remedy prescribed in the September 2022 Blind SA Constitutional Court ruling, which Section 27 believes lapsed when the deadline expired.
On 15 October 2024, the Presidency issued a media statement announcing that the Copyright Amendment Bill and Performers’ Protection Amendment Bills have been referred to the Constitutional Court for a ruling. No reference was made to the missed Blind SA Constitutional Court ruling deadline.
On 10 October 2024, on behalf of Blind SA non-profit organisation Section 27 issued a media statement announcing that it “has launched an urgent application in the Constitutional Court against President Cyril Ramaphosa for failing to sign the Copyright Amendment Bill”.
As mere scribes – and human to boot – in trying to get to the bottom of a presidential blunder we (in this case the royal one, of course) do occasionally make mistakes of our own. So, yesterday we mistook the December 2021 Blind SA Gauteng High Court (Pretoria) ruling for the September 2022 Blind SA Constitutional Court judgment – whooped delightedly and posted the good news on X. Which, we thought at the time, was that “in the event Parliament does not remedy the constitutional defect (in the Copyright Act) within 24 months of the order of the Constitutional Court ... (the read-in remedy) shall continue to apply”.
Fortunately, on X itself we tempered our private exuberance at this groundbreaking discovery with customary circumspection. But we’d blundered rather badly – for which we’ve since apologised, naturally. The Constitutional Court’s read-in remedy did indeed fall away on 21 September 2024, when the 24 months Parliament had been given to correct the defect unceremoniously expired.
Not that our mistake was spotted by anyone on X with an interest in the Copyright Amendment Bill or the plight of South Africa’s blind and print disabled. Among our ‘followers’ there are people who support the Bill and people who don’t. Although it’s unlikely that any would be opposed to improving access to print material for conversion into alternative format for the visually impaired. Whatever, given the number of clicks, people from both camps were either being kind or had already figured out that – as mere scribes – all we’re trying to do is raise awareness. Because, except for the Mail & Guardian, media houses have completely ignored the missed Constitutional Court deadline and what it means for print disabled people in South Africa.
We’re still not sure who’s at fault, although we’ve tried hard to get to the bottom of things. Our X posts have regularly featured @-handles used by accounts run on behalf of Parliament and the Presidency, although we knew that was a waste of time but did it anyway. They’re probably managed remotely (the X accounts), with nobody monitoring the feeds.
We’ve also alerted investigative journalists to the possibility of an interesting story (which it is if you dig and delve). Even X ‘influencers’ from the Democratic Alliance (who shall remain nameless) and a few prominent legal eagles with large social media followings may have found a couple of our posts in their feeds. But not a peep, not even the hint of a nibble at the bait, although their silence does tend to speak volumes.
We’ve also looked at Constitutional Court rulings requiring Parliament to remedy defects in other statutes. And during the past 10 years (as far as we can tell), each Bill addressing issues identified by the Court was signed into law soon after arriving on the presidential desk. Some Bills were even operationalised within days of joining the statute books.
So, could missing the Constitutional Court deadline for remedying defects in the Copyright Act be a presidential first? And what should a president do in such circumstances? Issue a statement explaining himself and apologising to the aggrieved parties? Pretend he didn’t know? Wheel and deal with affected stakeholders behind the scenes and hope ordinary South Africans will lose interest and go away? Or hide behind a thick veil of silence?
The Department of Justice & Constitutional Development makes it clear that “only the Constitutional Court may ... decide that Parliament or the President has failed to fulfil a constitutional obligation”. And from where we sit both could well be in trouble. According to a Constitutional Court document listing cases awaiting direction on 27 September 2024, at the time neither the National Assembly Speaker nor the President had applied for an extension to the deadline. Not that anyone on X has been kind enough to tell us whether presidents or their minions in South Africa ever bother with such things. Perhaps they’re not expected to ...
Anyway, the list below illustrates what happened to other Bills intended to remedy defects identified by the Constitutional Court during the past decade. In some cases, Parliament was given 18 months, in one case 15 months and in another 36. But most rulings set the deadline 24 months from the date on which the judgement was handed down. And since few Bills were passed before the judgement deadline expired, in most cases Parliament probably approached the Court for an extension.
Six judgments declared that, should Parliament fail to remedy the defects concerned within the time allowed, the read-in remedy would continue to apply – in some cases as a “final”. solution. Why this provision was left out of the Blind SA judgment is anybody’s guess.
Children’s Act, 2005
(January 2012 judgment) Bill passed by Parliament in December 2016, signed into law in January 2017, commenced in January 2018
(October 2013 judgment) Bill passed by Parliament in December 2016, signed into law in January 2017, commenced in January 2018
(May 2014 judgment) Bill passed by Parliament in December 2016, signed into law in January 2017, commenced in January 2018
(June 2023 judgment) At the time of writing, there was no evidence of any further developments
Performing Animals Protection Act, 1935
(July 2013 judgment) Bill passed by Parliament in November 2016, signed into law in January 2017, commenced in July 2017
Criminal Procedure Act, 1977
(July 2013 judgment) Bill passed by Parliament, signed into law and commenced in June 2017
(June 2018 judgment) Bill passed in September 2020, signed and commenced in December 2020
(December 2019 judgment) Bill passed in November 2021, signed and commenced in February 2022
South African Police Service Act, 1995
(July 2013 judgment) First Bill passed by Parliament in November 2019, signed into law in May 2020, not yet commenced; second Bill passed by Parliament in March 2024, signed into law in July, not yet commenced
Recognition of Customary Marriages Act, 1998
(November 2017 judgment) Bill passed by Parliament in March 2021, signed into law and commenced in May 2021
Local Government: Municipal Systems Amendment Act, 2011
(March 2017 judgment) Bill passed in May 2022, signed into law in August, partially commenced in November 2022
Drugs and Drug Trafficking Act, 1992
(September 2018 judgment) Bill passed by Parliament in February 2024, signed in May, not yet commenced
(September 2022 judgement) Bill passed by Parliament in February 2024, signed in May, not yet commenced
Electoral Act, 1998
(June 2020 judgment) Bill passed in February 2023, signed in April, commenced in June 2023
Riotous Assemblies Act, 1956
(November 2020 judgment) At the time of writing, there was no evidence of any further developments. However, the judgement provides that “should Parliament fail to cure the defect within 24 months ... or within an extended period of suspension, the reading-in will become final”.
Regulation of Interception of Communications & Provision of Communication-Related Information Act, 2002
(February 2021 judgment) Bill passed by Parliament in December 2023 and waiting to be signed into law
Promotion of Equality & Prevention of Unfair Discrimination Act, 2000
(July 2021 judgment) Bill passed by Parliament in December 2023, signed into law in May 2024 but not yet commenced
Marriage Act, 1961
(June 2022 judgment) Bill tabled in Parliament in December 2023, Constitutional Court deadline extension granted in September 2024
Divorce Act, 1979
(June 2022 judgment) Bill passed in February 2024, signed and commenced in May 2024
(October 2023 judgment) At the time of writing, there was no evidence of any further developments
Traditional & Khoi-San Leadership Act, 2019
(May 2023 judgment) At the time of writing, there was no evidence of any further developments
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