rather requires the Court’s intervention in remedying the absence of a necessary
provision which protects constitutional rights. Additionally, because the President’s
current referral of the CAB raises constitutional questions about the Bill’s
provisions which have not yet been enacted into law, the Court has to craft an
appropriate interim remedy that addresses the lapsed suspension period while the
legislative process takes its course.
The Court therefore compared section 13A against clause 19D with their ancillary
provisions.
After considering the submissions, the Court decided to read in
clause 19D instead of section 13A, concluding that it constitutes a just and equitable
remedy. This was on the basis that the provision had undergone substantial revision,
was not one of the provisions in the President’s referral, a proper parliamentary
process had been followed for its incorporation into the Bill, its reading-in respects
legislative prerogatives, and it has developed into a broader provision which
encompasses multiple formats and artistic works, reflective of both procedural
improvements and substantive enhancement of its legal architecture.
Clause 19D provides a more comprehensive framework aligned with constitutional
imperatives and international obligations, specifically those of the Marrakesh
Treaty. It balances accessibility requirements with copyright protections through
specific attribution requirements and detailed safeguards against misuse –
particularly in international transfers. Its substantive improvements render it a more
robust and legally sustainable framework, as it harmonises both the evolving
disability rights’ principles, and South Africa’s international obligations and
provides meaningful relief in a way that section 13A could not accomplish.
On costs, the Court held that, as much as the other respondents participated in these
proceedings, it was the President alone who had both the knowledge and power to
prevent this litigation.
His lack of communication led to the expiry of the
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