UNTERHALTER AJ
[23]
Thus, an exception granted solely in respect of reproduction would be
inadequate.
[24]
Blind SA further contends that by impeding access to works, the Copyright Act
limits a range of constitutionally-entrenched rights that persons with visual and print
disabilities enjoy. These rights are the rights to equality, human dignity, basic and
further education, freedom of expression, and participation in the cultural life of one’s
choice. Blind SA says that the Copyright Act, as a law of general application, is not
justifiable in terms of section 36(1) of the Constitution. Blind SA submits that the
violation of so many intersecting rights is ordinarily very difficult to justify and that
their limitation does not serve any legitimate purpose, as copyright owners do not stand
to lose anything from the relief sought.
[25]
As to remedy, Blind SA argues that it would be just and equitable for this Court
to exercise its broad remedial powers in terms of section 172(1)(b) of the Constitution,25
and read-in, with immediate effect, section 19D. Blind SA submits that a suspension
of the order of invalidity is incompetent because it purports to suspend the operation of
an order that is not in operation in any event.
[26]
Blind SA also responds to the submissions made by the first amicus,
Professor Dean. He opines that the text of section 19D cannot operate in the absence
of two definitions that clauses 1(a) and (h) of the CAB seek to insert into section 1 of
the Copyright Act: “accessible format copy”; and “person with a disability”. Blind SA
25
Section 172(1) of the Constitution states:
“When deciding a constitutional matter within its power, a court—
(a)
must declare that any law or conduct that is inconsistent with the Constitution
is invalid to the extent of its inconsistency; and
(b)
may make any order that is just and equitable, including—
(i)
an order limiting the retrospective effect of the declaration of
invalidity;
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions, to allow the competent authority to correct the
defect.”
14