Presidential Power to Refer Bills to the Constitutional Court – A Case Study of the Referral of the Copyright and Performers’ Protection Bills

Issued by Alfred Mahkuntsu on behalf of the FW de Klerk Foundation:

Introduction

In terms of section 79 of the Constitution, once both houses of Parliament have passed a proposed law (a bill), the President must either assent to and sign the bill (in which case it becomes law), or if s/he has reservations about the bill’s constitutionality, refer it back to Parliament for reconsideration. If, after Parliament’s reconsideration of the bill, the bill still does not fully accommodate the President’s reservations, s/he can refer the bill to the Constitutional Court, which must then decide whether the bill is constitutional or not. If the Constitutional Court decides that the bill is constitutional, the President must assent to and sign it, making it law.

On 10 October 2024, President Cyril Ramaphosa referred the Copyright Amendment Bill [B13F-2017] and Performers’ Protection Amendment Bill [B24F-2016] to the Constitutional Court. Both bills were reconsidered after having been referred back to Parliament by the President in June 2020. Parliament passed both (reconsidered) bills on 29 February 2024. This move highlights what powers the president has when he is concerned about a bill’s constitutionality and it also underscores the judiciary’s critical role in enforcing the Supremacy of the Constitution.

The Problems the Bills Aim to Fix

The Copyright Amendment Bill and the Performers’ Protection Amendment Bill are aimed at ensuring that creators and performers receive fair compensation for their work, especially in the context of digital content and online distribution. The bills do this by amending the Copyright Act,1978, and Performers’ Protection Act, 1967, respectively (hence the bills’ names).

The current Copyright Act does not protect the rights of creators as they do not receive a fair share of the royalty received for their work, making them susceptible to exploitation. Similarly, the Performers’ Protection Act….continue reading this article HERE.

Ngubane N. M. B.: {1999 – 2004} Ngubane worked on improving educational access and quality, emphasizing the importance of addressing the disparities in education across different communities.