Abstract

Keywords

Blind SA; Copyright Act; Copyright Amendment Bill; international law; Marrakesh Treaty; accessible format copy; adaptation; reproduction

……………………………………………………….

1 Introduction

This article is not about the challenges that people with disability face and the importance of the Marrakesh Treaty thereto. 1

* Malebakeng Agnes Forere. BA Law LLB (NUL) LLM (Essex) PhD (Bern). Associate Professor, School of Law, University of the Witwatersrand. Email: Malebakeng.Forere2@wits.ac.za. ORCiD: https://orcid.org/0000-0002-5293-9269. Since this work comes in two parts, similarity in the summary of the case is unavoidable.

1 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled (2013).

The importance of international law in dealing with issues that affect humankind cannot be overstated. To this end, international law has become a yardstick for modern legislatures in shaping their laws against the backdrop of minimum standards embodied in the Charter of the United Nations and other international treaties. 4

4 Schwelb 1959 Proceedings of the American Society of International Law 217.

Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled (hereinafter the Marrakesh Treaty). I have used the word "unthinkable" because copyrights, and intellectual property in general, have been jealously protected and one could not think that there could be a treaty whose purpose is to create limitations and exceptions to the exclusive rights of owners of literary works. It is for this reason that the Treaty has been lauded as the miracle of Marrakesh. It achieved the unachievable.

Copyrights are protected internationally through the 1886 Berne Convention administered by WIPO, the 1994 Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, administered by the World Trade Organisation (WTO), and the twin internet treaties – 1996 – WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). 7

7 Berne Convention for the Protection of Literary and Artistic Works (1886) (the Berne Convention); WIPO Copyright Treaty (1996); WIPO Performances and Phonograms Treaty (1966); Trade-Related Aspects of Intellectual Property Rights Agreement (1994) (TRIPS Agreement).

Against the backdrop of the ongoing legislative process, Blind SA approached the courts seeking that the courts declare the Copyright Act 98 of 1978 (hereinafter the Act) unconstitutional for violating their constitutional rights. The stated rights included the rights to equality, human dignity and freedom of speech to the extent that the Act is not aligned with the Marrakesh Treaty, by not allowing them to convert literary works into formats accessible to them without the consent of the owner of the copyright in those literary works. 10

10 In terms of the Copyright Act 98 of 1978 (the Act), literary work includes, "irrespective of literary quality and in whatever mode or form expressed-

(a) novels, stories and poetical works;

(b) dramatic works, stage directions, cinematograph. film scenarios and broadcasting scripts;

(c) textbooks, treatises, histories, biographies, essays and articles;

(d) encyclopaedias and dictionaries; ·

(e) letters, reports and memoranda;

(f) lectures, addresses and sermons; and

(g) written tables and compilations."

This paper is arranged in four parts, as follows. The first is an introduction, as above, while the second part provides a summary of the arguments and the reasoning behind the judgements of both courts in the Blind SA case. Part examines into the issue arising from the judgement – being the place of international law in South Africa. Part four concludes the discussion.

2 Summary of Blind SA's decision

The civil rights organisation, Blind SA, an organisation that represents people living with blindness, approached the courts against the Minister of Trade, Industry and Competition (hereinafter the Minister) and four other respondents, 11

11 The other four respondents by order of citation were: Minister of International Relations and Cooperation; Speaker of the National Assembly; Chairperson of the National Council ofProvinces; and the President of the Republic of South Africa.

Specific to the unconstitutionality of the Act, Blind SA argued that the Act discriminated against people with visual and print disability. The charge of such discrimination was based on the fact that the Act limits or prohibits such persons from accessing works that persons without such disability can access and for not making provision for persons with print and visual disability to access such works in a manner contemplated by the Marrakesh Treaty. Therefore, the applicant contended that the Act violates their constitutional rights as contained in the Bill of Rights, which includes their right to freedom from all forms of discrimination as espoused in section 9 of the Constitution of the Republic of South Africa, 1996 (the Constitution). The other rights that were argued to be violated by the Act included the rights to human dignity, basic and further education, freedom of expression, and participation in the cultural life of one's choice. The remedy sought by Blind SA was a declaration of unconstitutionality and the reading-in of section 19D of the CAB.

Three amicus curae made submissions in support of the Applicant as follows. In the main was the International Community of Jurists. They mainly argued that the Act must be aligned to the Marrakesh Treaty. Further, they argued that the Act violates the CRPD and the ICESCR, both of which concern the protection of the rights to education and participation in cultural activities. 13

13 Blind SA v Ministry of Trade para 18.

Second was the Media Monitoring Trust, which argued that the Copyright Act is inconsistent with South Africa's national Constitution, regional and international obligations and emphasised the need to protect the right to freedom of expression and the need to receive and impart knowledge in the digital era. 14

14 Blind SA v Ministry of Trade para 22.

The case was unopposed. The High Court read-in section 19D of the CAB and did not find it as judicial overreach to "enact" parts of the Bill that are still going through public consultations. 16

16 Blind SA v Ministry of Trade para 27.

Blind SA proceeded to the Constitutional Court for confirmation of the unconstitutionality of Act. In the Constitutional Court proceedings, Professor Owen Dean filed as amicus curae, opposing the confirmation of the finding

of unconstitutionality against the Act, while ReCreate no longer filed as amicus curae, perhaps owing to the fact that the High Court had found their submissions not useful. 18

18 Professor Dean is an Emeritus Professor of Intellectual Property at the University of Stellenbosch, who has practised in the field of intellectual property (copyright and trademarks) for over five decades. He has largely shaped IP jurisprudence and is cited by the courts in almost every case on copyright. His expertise cannot be faulted. His bio is available at University of Stellenbosch date unknown https://blogs.sun.ac.za/iplaw/about/staff-members/owen-dean/.

The applicant petitioned the Constitutional Court to declare the Act unconstitutional for discriminating against people with visual and print disability. The allegation of discrimination was based on the fact that the Act limits or prohibits such persons from accessing works that persons without such disability are able to access and the fact that it did not make provision for persons with print and visual disability to access such works in a manner required by the Marrakesh Treaty. 19

19 Blind SA v Minister of Trade, Industry and Competition (CCT 320/21) [2022] ZACC 33 (21 September 2022) (hereafter Blind SA v Minister of Trade (CC)) paras 1, 15.

listing international intellectual property treaties as well as human rights treaties that South Africa is a party to, including CRPD, which are necessary for affording protection to persons living with disability. Further, the Minister objected to the reading-in of section 19D without suspending an order of invalidity as that would usurp the powers of Parliament.

Relying on Article 3 of the Marrakesh Treaty, the Constitutional Court found that Blind SA has standing before it as the organisation falls within the class of persons in the definition of "beneficiary persons". 26

26 Blind SA v Minister of Trade (CC) para 47.

On the issue of whether section 13 can be interpreted as giving the Minister the power to make regulations as put forward by Professor Dean, the Constitutional Court found that the proper interpretation of section 13 rests on drawing a difference between reproduction and adaptation and finding what is required by reproduction. 30

30 Blind SA v Minister of Trade (CC) para 79.

by section 19D of the Bill but it limited it to literary works and artistic works forming part of such literary works. The Court then adopted definitions from the Marrakesh Treaty relating to accessible format copy and beneficiary person. 36

36 Blind SA v Minister of Trade (CC) para 106.

3 Application of international law in South Africa

This part of this note demonstrates how the Marrakesh Treaty, a treaty not yet ratified by South Africa, was used to limit the copyright in the literary works, thereby making a compelling case for assessing the role of international law in South Africa, given how heavily the case relied on the Marrakesh Treaty. Of course, one is cognisant of the fact that South Africa has an intention to ratify the Marrakesh Treaty as expressed in the Memorandum of the Objectives of the Bill, but the fact is that the Marrakesh Treaty is not yet law in South Africa.

3.1 Evidence that the Blind SA decision was based largely on the Marrakesh Treaty and less on the Constitution

As summarised above, one will recall that the order sought in the High Court was to declare the Act unconstitutional because the Act

does not include provisions designed to ensure that persons with visual and print disabilities are able to access works under copyright in the manner contemplated by the Marrakesh Treaty to Facilitate Access to published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled ("the Marrakesh VIP Treaty"); 37

37 Blind SA v Minister of Trade para 12.

The High Court did not question the request grounded in the Marrakesh Treaty. Instead, aware that there was an ongoing parliamentary process to implement the Marrakesh Treaty, among other things, and was wary of possible judicial overreach in granting the reading-in of a clause that was not yet law. 38

38 In fact, the High Court found that there were no substantive reasons for Parliament to not have enacted the Copyright Amendment Bill (Blind SA v Minister of Trade para 27) yet there were very strong calls from South Africans to have the Bill rejected and redrafted. With this statement, the High Court ignored the constitutional requirement of engaging in public consultation.

The issue remained the same in the Constitutional Court. Blind SA requested confirmation of the findings of unconstitutionality of the Act on the

basis that the Act did not contain provisions designed to ensure that persons with visual and print disability were able to access works in the manner contemplated by the Marrakesh Treaty. In responding to Professor Dean's submission that section 13 could be used or interpreted in such a way as to allow the Minister to make regulations to cater for the required format shifting exception instead of seeking a declaration of unconstitutionality, Blind SA brought another issue. Thus, the organisation argued that section 13 is limited to reproduction rights only, thereby falling short of Article 4(1)(a) of the Marrakesh Treaty, which requires exceptions to reproduction rights, distribution and the making available rights. 40

40 Blind SA v Minister of Trade (CC) paras 21, 22.

At the outset, there are two issues that should have rendered this case objectionable in limine had the case been defended. First is that the request to declare the Copyright Act unconstitutional should have been dismissed by both courts to the extent that the issues did not refer to specific sections of the Act that should be declared unconstitutional, and failure to mention specific sections made the submissions to be vague. Aware of this material defect in the case, the Constitutional Court, on its own account, rectified the claims by indicating that it was actually sections 6 and 7 that were facing claims of unconstitutionality. 42

42 Blind SA v Minister of Trade (CC) paras 48 and 97.

The proposed order is too wide and, in some respects, imprecise. It is too wide for four principal reasons. First, it references all works under copyright. The case that Blind SA has made out concerns literary works, and, to an extent, artistic works that may form part of a literary work. Second, it would declare that the omissions of the Copyright Act fail to measure up to what the Marrakesh Treaty requires to enable persons with visual and print disabilities to have access to published works. The Marrakesh Treaty is not the standard against which inconsistency for the purposes of section 172(1)(a) is measured. Third, the proposed order stipulates for the declaration of invalidity of the Copyright Act, without identifying the provisions of the Copyright Act

that are inconsistent with the Constitution … As to the imprecision of the proposed order, it does not define what is meant by persons with visual and print disabilities; and it references what "access to works under copyright" means by invoking the Marrakesh Treaty. 43

43 Blind SA v Minister of Trade (CC) para 94 and 95.

Based on this statement, the Constitutional Court framed its finding of unconstitutionality in respect of sections 6 and 7 of the Act for limiting the constitutional rights of persons with print and visual disability from accessing accessible format copies of literary and artistic works. Despite the quotation above, the arguments in court were, however, heavily grounded on compliance with the Marrakesh Treaty. For example, in establishing standing before the Constitutional Court on this matter Blind SA said:

The application is brought in the public interest and on behalf of persons with visual and print disabilities. This class of persons is taken to fall within the definition of "a beneficiary person" in Article 3 of the Marrakesh Treaty. 44

44 Blind SA v Minister of Trade (CC) para 47.

Further, when considering whether section 13 of the Act can be interpreted broadly to allow the Minister to make regulations that can allow reproduction exception for format shifting with a view to an avert declaration of unconstitutionality, the Constitutional Court found that section 13 was inadequate as format shifting goes beyond reproduction. In arriving at this conclusion, the Constitutional Court said:

What this means, as the final sentence of Article 4(1)(a) of the Marrakesh Treaty provides is that "[t]he limitation or exception provided in national law should permit changes needed to make the work accessible in the alternative format". The exposition of the examples described above indicates that this cannot, with any measure of certainty, invariably take place by way of reproducing literary works (with their inclusion of artistic works), no matter how generously that term is reasonably interpreted. 45

45 Blind SA v Minister of Trade (CC) para 89.

Based on the above, the Constitutional Court found that section 13 is not capable of broader interpretation to give effect to the final sentence of Article 4(1)(a) of the Marrakesh Treaty.

Having found that sections 6 and 7 of the Act are unconstitutional and being confronted with the fact that there is no definition in our law of the term "beneficiary person", the Constitutional Court reproduced Article 3 of the Marrakesh Treaty, which defines "beneficiary person". 46

46 Blind SA v Minister of Trade (CC) paras 97 and 98.

Furthermore, Blind SA has used the phrase "persons with visual and print disabilities" to mean a "beneficiary person" as defined in Article 3 of the Marrakesh Treaty. The adoption of that definition is useful, but it should be reflected in the order for the sake of clarity. 47

47 Blind SA v Minister of Trade (CC) para 97.

Considering the above, there is no doubt that the case was heavily reliant on the Marrakesh Treaty even though the final verdict was based on the Constitution. The approach adopted by the Constitutional Court calls into question the place of international law in South Africa and in particular the place of treaty law in South Africa.

3.2 Does the Constitution allow the Blind SA approach to rely on international law?

This section of this note charts the provisions in the Constitution that refer to international law, and thereafter we will assess whether the Constitution allows the approach adopted by the courts. In this instance, does the Constitution allow the use of the Marrakesh Treaty, an unratified treaty, as a yardstick. Below are the provisions of the Constitution that refer to international law:

Non retrospective application of acts or omission under international law

Section 35(3) of the Constitution prohibits the retro-effect application of crimes or omissions under both national and international law that were not crimes during the time of their commission or omission. This is a common provision in many countries, and it simply protects individuals from being targeted by either national or international systems using criminal legislation with retro-effect.

Compliance of national law including the Constitution to international law

There are two prominent provisions in the Constitution as follows: Section 39(1)(b) of the Constitution enjoins the courts to consider international law when interpreting the Bill of Rights, while section 233 requires courts to interpret any legislation consistent with international law. These are key provisions in which South Africa shows its reception of international law. They suggest that interpretations not upholding international law can be regarded as not compliant with the Constitution. These provisions are an embodiment of the highest degree of deference to international law. They are highly unique provisions by any standard, especially because states and national courts claim the supremacy of national law. 48

48 Palombino Duelling for Supremacy 1-5

treaties. 50

50 Memorandum of Objects of the Protection of Investment Act 22 of 2015.

Security services and state of emergency to uphold international law

Countries are very protective of their security services and would not want to subject the operations of their security services to outside scrutiny in any shape or form. Nevertheless, South Africa adopted a unique transparency standard for her security services. To this end, section 199(5) of the Constitution requires that "[t]he security services must act, and must teach and require their members to act, in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic". Further, section 200(2) provides that "[t]he primary object of the defence force is to defend and protect the Republic, its territorial integrity and its people in accordance with the Constitution and the principles of international law regulating the use of force". These provisions showcase unprecedented deference of the regulation of security services to international law. Further, section 37(4) requires the country to uphold its international obligations applying to a state of emergency. These provisions ensure that the South African security services cannot in any way be used by the executive to act in any manner that is not sanctioned by international law, as was the case with the apartheid government, which used the security services to violate the rights of black people 52

52 Human Rights Watch 1991 https://www.hrw.org/reports/1991/southafrica1/4.htm; Phillips and Nathan 1991 Social Justice 105.

Application of international law

Chapter 14 of the Constitution deals with international law, particularly international agreements. To this end, section 231 vests the responsibility for negotiating and concluding international treaties in the executive. For an international agreement to be binding, it must be approved by resolution in the National Assembly and the National Council of Provinces (NCOP), unless it is an agreement of a technical or administrative nature or one which

does not require accession or ratification. Once ratified or acceded to, treaties must be enacted into law and follow the national law-making process. This means that South Africa does not follow the monist approach to the application of international law. More specifically, the Marrakesh Treaty is not self-executing at the national level, especially for countries that follow a dualist approach, 54

54 Ncube, Reid and Oriakhogba 2020 JWIP 149.

Section 232 of Chapter 14 further recognises customary international law as law and as binding unless it is inconsistent with the Constitution. The formulation of section 232 subjects the validity of customary international law in South Africa to conformity with the South African Constitution. This formulation is not correct, as customary international law is binding on all states and its validity cannot be subjected to compliance with national law unless the State has been a persistent objector to a particular rule of the customary law in question. Professors Dugard and Coutsoudis provide a useful analysis of the South African courts' pre-constitution conflicted approach to the implementation of customary international law, which shows a number of decisions in which national law was given primacy over customary international law, and another where a customary international rule was given primacy. 55

55 Dugard and Coutsoudis "The Place of International Law" 63.

It is important to this work that the provisions mentioned above (sections 37(4), 39(1)(b), 199 (5), 200(2), and 233) suggest the direct applicability of sources of international law other than treaties, yet the Marrakesh Treaty was given direct applicability, which is a cause for concern. Also, while a treaty that has been signed by South Africa but not domesticated can be used as an interpretive source, it cannot be enforced as it is not binding, but courts can interpret legislation in line with that treaty. 56

56 Dugard and Coutsoudis "The Place of International Law" 63; National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre 2015 1 SA 315 (CC) para 24.

Marrakesh is not even such a kind of treaty as South Africa has neither signed it nor acceded to it.

Nevertheless, the running theme in the provisions cited above is on the application of international law in South Africa. Nowhere in the Constitution is international law, an umbrella term for many branches of the law, defined. So, what is or are the international law or sources of international law that the South African courts must give effect to as required by sections 233 and 39(1)(b)? To this end we are guided by Article 38 of the Statute of International Court of Justice (ICJ Statute), which provides the hierarchy of sources of international law that any court faced with the task of applying international law to a dispute before it must adhere to. The ICJ Statute is an integral part of the United Nations Charter, and binding on members of the United Nations, to which South Africa is a party. Accordingly, Article 38 of the ICJ Statute provides as follows: 57

57 Statute of the International Court of Justice (1949).

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b international custom, as evidence of a general practice accepted as law;

c the general principles of law recognized by civilized nations;

d subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Therefore, since international law comprises of treaties, customary international law and general principles of law as primary sources, and the judicial decisions and teachings of highly qualified publicists as a secondary source of international law, South African courts must consider not only treaties that the country has ratified as well as customary international law but also general principles of law. The Constitutional Court is aware that in South Africa reliance on international law includes reliance on non-binding international law such as the general principles of law. 58

58 S v Makwanyane 1995 3 SA 391 (CC) 413.

the general principles of international law. Nevertheless, even with the breadth of international law as provided for under Article 38 of the ICJ Statute, the reliance on the Marrakesh Treaty by both the High Court and the Constitutional Court is a judicial overreach, as treaties are applicable only after ratification and after domestication through the national law-making process. The Marrakesh Treaty has not been ratified; it is currently following the legislative process ahead of its accession and hence application in South Africa. The fact that Parliament has taken as long as this to pass the CAB does not result in the delegation of the Executive's power to accede to the Marrakesh Treaty and Parliament's law-making powers to the courts. Today, the judicial overreach in Blind SA affects copyright, a field that centres chiefly on relations between business and members of the public; however, tomorrow this judicial overreach would tie the hands of the Executive/Parliament and limit the country's sovereignty. Of course, there is a temptation to justify the court's overreach on the basis that the said section 19D is not contentious. However, the case is an illustration of the problems associated with section 19D, where the court had to provide guidance on whether format shifting should apply to reproduction only or should extend to adaptation rights and whether section 19D is compliant with the famous three-step test provided for in the Berne Convention and the TRIPS Agreement. Also, even assuming that section 19D is non-contentious, the courts cannot assume the legislative role. It is only when a Bill has been signed by the President that it becomes law and can be applied by the courts. Of course, one is cognisant of the powers of the courts to read-in legislative text.

South Africa's openness to international law is attributed to the dark history that the country is emerging from and has less to do with the level of democracy and respect for human rights that South Africa enjoys today. 60

60 Dugard 1997 EJIL 77.

respect for human rights, but the implementation of specific provisions of treaties are to be determined by law, 63

63 Constitution of Norway, 1814 (as revised in 2018) art 110.c.

The over-zealous approach to international law adopted in the Constitution can reflect a country that comes from a history of defiance of international norms which wishes to ensure that such disregard of the laws of humanity does not repeat itself. It is therefore doubtful that a democratic South Africa today would want to defer so much to international law as was done in the Blind SA decision. In fact, democratic South Africa is today retreating from some of the decisions that were taken upon obtaining democracy in regard to the conclusion of international investment treaties. This is because the said international investment treaties gave rise to unpalatable results, one of them being interference in South Africa's ability to implement issues of national interest such as the empowerment of historically disadvantaged people. Another notable reconsideration was an attempt to withdraw from the International Criminal Court, which was overturned by the High Court on the grounds of unconstitutionality. 67

67 Democratic Alliance v Minister of International Relations and Cooperation 2017 3 SA 212 (GP).

4 Conclusion

Regarding the first issue, the application of international law in South Africa, the paper has found an array of provisions in the Constitution that require the direct application of international law, in particular sections 39 and 233 of the Constitution. While section 39 requires courts to consider international law when interpreting the Bill of Rights, section 233 mandates courts to

adopt a meaning that is consistent with international law when interpreting any law. The paper avers that even given this broad reception of international law, the courts cannot override the mandate of the Executive to ratify treaties and for Parliament to domesticate treaties as required by section 231. Despite the requirement that treaties can be applicable as law only once ratified and domesticated, the Constitutional Court applied the Marrakesh Treaty as though it had been ratified and domesticated. Although the Constitutional Court said it had made the finding of unconstitutionality based on the provisions of the Constitution, this work has shown that the case was about the Marrakesh Treaty. Thus, the issues before the Court, the judgement of the Court (the reasons given) as well as the remedy provided were based on the Marrakesh Treaty not the Constitution. This paper concludes that by hearing a case that alleged the violation of the Marrakesh Treaty and making findings and deciding on a remedy based on the Marrakesh Treaty, as explicitly shown above, and referring to the Constitution only when handing down the verdict, the courts went beyond their scope – judicial overreach. This conclusion is drawn in cognisance of the statement made by the Constitutional Court in paragraphs 102 to 105, where the Court addressed the issue of overreach.

Bibliography

Literature

Beitz 2001 American Political Science Review

Beitz CR "Human Rights as a Common Concern" 2001 American Political Science Review 269-282

Bieber 2018 Ethonopolitics

Bieber F "Is Nationalism on the Rise? Assessing Global Trends" 2018 Ethnopolitics 519-540

Cole 2011 Mich J Int'l L

Cole T "The Boundaries of Most Favored Nation Treatment in International Investment Law" 2011 Mich J Int'l L 537-586

Cottier et al 2014 Archiv des Völkerrechts

Cottier T et al "The Principle of Common Concern and Climate Change" 2014 Archiv des Völkerrechts 293-324

Dugard 1996 EJIL

Dugard J "International Law and the South African Constitution Kaleidoscope" 1997 EJIL 77-92

Dugard and Coutsoudis "The Place of International Law"

Dugard J and Coutsoudis A "The Place of International Law in South African Municipal Law" in Dugard J et al (eds) Dugard's International Law: The South African Perspective (Juta Cape Town 2018) 57-123

Helfer et al World Blind Union Guide to the Marrakesh Treaty

Helfer LR et al The World Blind Union Guide to the Marrakesh Treaty: Facilitating Access to Books for Print-Disabled Individuals (Oxford University Press Oxford 2017)

Ncube, Reid and Oriakhogba 2020 JWIP

Ncube CB, Reid BE and Oriakhogba DO "Beyond the Marrakesh VIP Treaty: Typology of Copyright Access-Enabling Provisions for Persons with Disabilities" 2020 JWIP 149-165

Palombino Duelling for Supremacy

Palombino FM Duelling for Supremacy: International Law vs National Fundamental Principles (Cambridge University Press Cambridge 2019)

Pauwelyn Conflict of Norms in Public International Law

Pauwelyn J Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (Cambridge University Press Cambridge 2009)

Phillips and Nathan 1991 Social Justice

Phillips M and Nathan L "The Changing of the Guard: The Security Forces in Transition" 1991 Social Justice 105-123

Schwelb 1959 Proceedings of the American Society of International Law

Schwelb E "The Influence of the Universal Declaration of Human Rights on International and National Law" 1959 Proceedings of the American Society of International Law 217-229

Vereshchetin 1996 EJIL

Vereshchetin VS "New Constitutions and the Old Problem of the Relationship between International Law and National Law" 1996 EJIL 29-41

Case law

Blind SA v Ministry of Trade, Industry and Competition (14996/21) [2021] ZAGPPHC 871 (7 December 2021)

Blind SA v Minister of Trade, Industry and Competition (CCT 320/21) [2022] ZACC 33 (21 September 2022)

Democratic Alliance v Minister of International Relations and Cooperation 2017 3 SA 212 (GP)

National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre 2015 1 SA 315 (CC)

S v Makwanyane 1995 3 SA 391 (CC)

Legislation

Constitution of Botswana, 1966

Constitution of Canada (Constitution Act), 1982

Constitution of Mauritius,1968 (as revised in 2016)

Constitution of Norway, 1814 (as revised in 2018)

Constitution of the Republic of South Africa, 1996

Copyright Act 98 of 1978

Protection of Investment Act 22 of 2015

Government publications

Copyright Amendment Bill [B13D-2017]

Performers' Protection Amendment Bill [B24D-2016]

International instruments

Berne Convention for the Protection of Literary and Artistic Works (1886)

Charter of the United Nations (1945)

Convention on the Rights of Persons with Disabilities (2006)

International Covenant on Civil and Political Rights (1966)

International Covenant on Economic, Social and Cultural Rights (1966)

Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled (2013)

Statute of the International Court of Justice (1949)

Trade Related Aspects of Intellectual Property Rights Agreement (1994)

WIPO Copyright Treaty (1996)

WIPO Performances and Phonograms Treaty (1996)

Internet sources

Human Rights Watch 1991 https://www.hrw.org/reports/1991/ southafrica1/4.htm

Human Rights Watch 1991 Recommendations to the Government of South Africa and the United States https://www.hrw.org/reports/1991/ southafrica1/4.htm accessed 10 August 2023

SA History date unknown https://www.sahistory.org.za/article/sharpeville-massacre-21-march-1960

SA History date unknown Sharpeville Massacre, 21 March 1960 https://www.sahistory.org.za/article/sharpeville-massacre-21-march-1960 accessed 12 August 2023

University of Stellenbosch date unknown https://blogs.sun.ac.za/ iplaw/about/staff-members/owen-dean/

University of Stellenbosch date unknown Professor Owen H Dean https://blogs.sun.ac.za/iplaw/about/staff-members/owen-dean/ accessed 12 November 2023

List of Abbreviations