Many South Africans are of the view that our nation is on the brink of collapse. A major reason for this is that our government has been failing in its duty to implement meaningful change, which has left many of us frustrated. It has been up to other organs of society to call for change. In this context, civil society organisations are seeking to facilitate greater agency for the most marginalised to change the conditions of their lives.

The South African Constitution has been described by world-renowned legal scholar Cass Sunstein as “the world-leading example of transformative constitutionalism”. The praise for our Constitution is vast, even the late Justice Ruth Bader-Ginsburg paid tribute to the calibre of our Constitution. However, it is quite clear that despite the constitutional imperative to heal the divisions of the past and create a conducive environment for real equality and a better standard of life, the lives of most South Africans do not mirror the ideal imagined by the Constitution – one example is persons who are blind or living with visual disabilities. 

To ensure real equality for persons who are blind and visually impaired, legal mobilisation tactics such as litigation, and more recently a march to various government departments, were necessary. Memorandums were delivered to the Department of Women, Youth and Persons with Disabilities, the Department of Justice and Correctional Services, the Department of Trade, Industry and Competition, the Department of International Relations and Cooperation (Dirco) and the Presidency. A collective effort was essential in the mobilisation which included SECTION27, Blind SA, the Ahmed Kathrada Foundation, the South African Teachers’ Union and many other organisations to engender a voice for change. 

Jetro Gonese (60), a blind person from Zimbabwe, in the building in which he lives in the Johannesburg CBD on 22 June 2020. Despite losing his sight to measles at the age of two, he completed his education and trained as a teacher for visually impaired children. None of his qualifications was recognised in South Africa when he migrated here in 2008. (Photo: Luca Sola / AFP)

The mobilisation was to include equal access to books and hence knowledge for persons who are blind and visually impaired. For those of us who are fully sighted and who took part in the march it was an enlightening and learning experience. Imagine living life not having access to books and not being able to read. Think back to your years at school or university and how much reading you had to do from many different textbooks. How hard it would be to complete those qualifications if you needed help every time you had to study from a textbook. Think about every other book you’ve read; imagine a life without the freedom to pick up a book when you wanted. No freedom to walk into a library or a bookstore and have access to thousands of different books across different subjects and genres. Reading and literature are fundamental aspects of our social, cultural and intellectual lives. It is not easy to imagine what a life without them would look like and yet this is the life lived by blind and visually impaired persons every day.

This was the basis for the initial legal challenge in which Blind SA took our government to court and which yielded a Constitutional Court judgment in September 2022 in the case of Blind SA v Minister of Trade, Industry and Competition and Others. The application challenged the constitutionality of the Copyright Act of 1978 which did not grant an exemption to blind or visually impaired persons from copyright and therefore prevented them from reproducing and reformatting printed materials without the permission of the copyright holder. Blind SA argued that the failure to grant this exemption was a violation of their members’ right to dignity, equality, expression and education. 

What the ruling didn’t address

The Constitutional Court found in favour of Blind SA and read in provisions that immediately permit blind or visually impaired persons to convert books into accessible formats without requiring the authorisation of the copyright holder. One barrier that existed before the judgment had been removed, but there was still another barrier to the full enjoyment of the rights of the blind or visually impaired.

Read more in Daily Maverick: Court rules Copyright Act unconstitutional for limiting the visually impaired from accessing books

The judgment did not deal with access to international libraries of accessible formats of copies of books. Referred to as cross-border sharing, this would make hundreds of thousands of books more accessible to South Africans who are blind or visually impaired. However, it is only available to countries that are party to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled).

This is why many civil organisations took to the streets on 27 June. 

Nadiem Marthinus, who is blind, learns to read Braille at the Cape Town Society for the Blind on 12 July 2022. (Photo: Gallo Images / Daily Maverick / Leila Dougan)

The march started at the Rietondale Tennis Club, about 1km from the Department of International Relations and Cooperation. Marshalls, members of the public and family members came out in large numbers to help and support their loved ones on what was a very important day for them. What was also heartwarming was the visually impaired and those who are sighted working together for a common cause. A living experience of Ubuntu. For example, the groundskeeper of Rietondale Tennis Club became one of the supporters. He seemed shocked that there were this many blind or visually impaired people in the country, never mind just at his tennis club ready to march. It might have surprised him even further to find out that close to 2% of our population lives with visual impairment. That is about one million people, all of whom are affected by the government’s refusal to sign the Marrakesh Treaty.

We demonstrated an unqualified active rejection of inequality in its crass and insidious systemic legal form.

As we marched it became clear that everyone felt strongly about ratifying the Marrakesh Treaty. It is easy to understand why: the treaty enables individuals and organisations to have access to materials across international borders. This will save people and organisations time and resources, which they would otherwise have had to spend to reformat or reproduce the work. These resources are often not available. Most importantly, the signing of the treaty is all-important for the country because it would exemplify the progressive nature of the Constitution in ensuring the rights promised to all citizens, specifically the most vulnerable in our society, and the obligation on the government to protect these groups from discrimination.

Read more in Daily Maverick: Blind faith — providing hope and work for the visually impaired

The conclusion of the march was marked by the handing over of the memorandum to an official at Dirco. The handover was mostly in good spirits and the official even laughed as he received it. He noted that an accessible format of the memorandum, in Braille, had also been provided to him. In turn, the Blind SA representative noted that the feeling of having possession of reading material and not being able to read is exactly how the visually impaired feel daily.

Persistent hope

If there is one thing we can take away from the march, it is that the spirit of hope still lives among us, a hope that brought about a willingness to take to the streets and mobilise for what is just. 

SECTION27 and Blind SA and our partner organisations demonstrated an unqualified active rejection of inequality in its crass and insidious systemic legal form. The march provided an opportunity to challenge the marginalisation and the lack of access faced by blind and visually impaired people in South Africa. Organisations and individuals carefully considered their responsibility and role in a post-apartheid and still unequal South Africa, where South Africans struggle to hold the government accountable. Ultimately, the march became a medium for meaningful mobilisation, which enabled people to really see each other in the protest.  

The Marrakesh Treaty was adopted 10 years ago. That is how long the government has denied justice to those who are blind and visually impaired. We have come a long way as a nation, and a national consciousness continues to grow and fight against the impact of our deeply painful past. However, the march on 27 June 2023 is a reminder that there is still a long way to go. As we continue to work together in an attempt to heal the divisions of the past, we are again reminded of the nuanced inequalities that still exist in our communities. A great joy to witness and be a part of. DM

Lufefe Radebe is a first-year LLB student at UCT and a SECTION27 intern. Jonathan Yahya West is an LLB graduate and a SECTION27 intern.