Constitutional Court to Hear Ramaphosa’s Referral of Two Controversial Bills

The Constitutional Court is set to hear a crucial case on Wednesday as President Ramaphosa formally seeks a ruling on the constitutionality of the Copyright Amendment Bill and the Performers’ Protection Bill. This comes after years of legislative back-and-forth and growing concerns over the retroactive implications of both bills on existing intellectual property rights.

President Cyril Ramaphosa‘s application stems from substantive legal reservations regarding key provisions in the two pieces of legislation. At the heart of the matter is whether certain clauses within the bills amount to a retrospective and arbitrary deprivation of property, potentially violating Section 25 of the Constitution, which protects against unlawful expropriation.

In 2022, South Africa’s apex court declared sections of the existing Copyright Act unconstitutional for discriminating against blind and visually impaired individuals. The Act, as it stood, restricted equitable access to reading materials for people with visual disabilities. Recognizing this as a constitutional violation, the Constitutional Court suspended its declaration of invalidity for 24 months, giving Parliament until September 2023 to address the defects.

Although lawmakers moved swiftly to amend the legislation, Ramaphosa raised serious concerns about the revised versions of the bills. He initially referred them back to Parliament, citing that the changes made did not fully resolve the constitutional issues. Despite some modifications, the President concluded that the substantive problems persisted and subsequently escalated the matter to the Constitutional Court under Section 79(4)(b) of the Constitution.

Ramaphosa’s Constitutional Concerns

A central issue in Ramaphosa‘s application is the potential retroactive impact of the proposed legislative changes. Although Parliament removed provisions that explicitly made the legislation retroactive, the President argues that the revised bills still effectively apply to copyright works assigned before the new laws come into force.

According to Ramaphosa, these provisions create a legal entitlement for authors to claim royalties from works for which copyright had already been assigned, regardless of when those assignments took place. In doing so, the legislation appears to override historical contractual arrangements and redistribute financial rights retroactively—a move Ramaphosa believes may be both unconstitutional and economically disruptive.

He contends that such provisions could amount to the arbitrary deprivation of property, raising significant constitutional questions. If upheld, this could set a precedent for legislative overreach into existing private agreements, with potential implications for authors, performers, publishers, and content producers.

This landmark legal challenge has drawn attention from legal scholars, copyright experts, and stakeholders in the creative industries. While there is broad support for legislative reform that promotes inclusivity—especially for disabled persons—there is equal concern about ensuring that new laws do not override historical contracts or violate property rights.

For creators, especially authors and performers, the outcome of the case could redefine how royalties are calculated and distributed in South Africa. While the bills aim to strengthen protections for these groups, critics warn that they could unintentionally introduce legal uncertainty and deter investment in creative works.

Publishers and producers, in particular, argue that the legislation—if enacted with retroactive effect—could undermine the stability of long-standing contracts and intellectual property licensing models. They support reform, but within a framework that preserves the sanctity of existing legal arrangements.

This referral reflects a growing trend in Ramaphosa‘s presidency of turning to the Constitutional Court when in doubt over legislative compliance with the country’s founding document. It underscores his legalistic and cautious approach to governance, especially in areas where the law intersects with socio-economic rights and intellectual property.

Rather than rubber-stamping legislation, Ramaphosa has demonstrated a willingness to challenge Parliament’s decisions in court, reinforcing the principle of constitutional supremacy. His decision to escalate the matter to the highest court highlights the importance of ensuring that new laws are not only progressive but also constitutionally sound.

The Constitutional Court’s ruling—expected in the coming months—will carry significant legal and policy weight. Should the court find the bills unconstitutional, Parliament may need to go back to the drawing board once again, potentially delaying long-anticipated reforms.

Until then, stakeholders across the creative, publishing, and legal sectors will be watching closely as Ramaphosa‘s application unfolds. The case is more than a technical legal dispute—it is a critical test of how South Africa balances legal certainty, property rights, and progressive reform.

Source-EWN