The Plant Breeder’s Right (PBR), also known as Plant Variety Protection (PVP), is a form of
intellectual property afforded to breeders of newly bred plant varieties. In South Africa,
intellectual protection of new plant varieties is afforded through the Plant Breeders’ Rights Act,
1976 (Act No. 15 of 1976) as amended in 1996.
The writer has been Registrar: Plant Breeders’ Rights since November 2007. Over the years
the writer has interacted with several stakeholders with interest in plant breeders’ rights,
including breeders, farmers, patent attorneys, growers, plant breeders’ rights administrators
from other countries and civil society organisations. Although South Africa has had Plant
Breeders’ Rights legislation since 1976, it has been observed that this piece of legislation is
relatively unknown and often misunderstood even by the users of the system. In engagements
with various stakeholders, it has been established that there are conflicting views amongst the
stakeholders on pertinent issues related to the plant breeders’ rights system. There are views,
among others, include: that the plant breeders’ rights system is only relevant and benefits
breeders from big multinational companies such as Monsanto and farmers can never benefit in
such a system; that the Plant Breeders’ Rights Act is synonymous with genetically modified
organisms; that indigenous plants are neglected, and that the system only promotes protection
of foreign varieties. The most contentious issue is however around the impact of plant
breeders’ rights on the tradition of farmers to save, sell and exchange seed.
Very little is documented on the South Africa plant breeders’ rights system, more so from the
administrator’s perspective. This study explored some aspects of the plant breeders’ rights
system that may need policy interventions and legislation amendments, such as matters
around the plant breeders’ rights system in relation to farmers’ rights, possible dual protection
of Genetically Modified varieties in terms of the Plant Breeders’ Rights Act 1976 and the
Patents Act 1978, as well as the participation of indigenous ornamental crops in the plant
breeders’ rights system.
On the issue of the farmers’ rights: results of this work show that the current provision in the
Plant Breeders’ Rights Act deals with Farmers’ Rights in a narrow sense, i.e. with the rights of
farmers to save seed. It was established that this provision is inadequate for both the breeders
and the farmers. A survey was also conducted among smallholder farmers from four
provinces, namely Eastern Cape, Free State, Limpopo, and Western Cape. The interesting
finding was that although there is so much debate around the impact of the plant breeders’
rights system on farmers’ rights, the majority of the farmers from this study group have never
heard of the Plant Breeders’ Rights Act. There are farmers who are continuing with the
practice of seed saving; however some farmers have indicated that they do not save seed they
believe that this practice lowers yield. Those who do save seed mostly save their traditional
seed, i.e. locally adapted seed lacking formal crop improvement as opposed to modern
commercial seed. Some farmers have indicated that they do develop varieties through their
own selections and believe that their varieties could qualify for protection in terms of the Plant
Breeders’ Rights Act. It is evident that both government and the civil society organisations
need to do more to educate smallholder farmers about laws and policies that impact their
livelihood. Based on this study, a proposal was made to have the farmers’ privilege provisions
in the current Plant Breeders’ Right Act amended to allow the Minister responsible for
Agriculture to prescribe among others: the crops in which this provision will apply; the category
or categories of farmers that would benefit; the circumstances under which royalties should be
paid. This proposal was welcomed by most stakeholders and has since been incorporated in
the draft Plant Breeders’ Rights Bill. It is envisaged that specific details around these factors
will be included in the Regulations to the Act after extensive consultations with all relevant
stakeholders.
There is a gap in policy and legislation with regard to the recognition of Farmers’ Rights as
envisaged in the International Treaty on Plant Genetic Resources for Food and Agriculture
(ITPGRFA). As such there are calls from some stakeholders including the civil society
organisations that legislation on plant breeders’ rights must address these gaps and/or an
alternative sui generis (of its own kind) system should be explored as the International Union
for the Protection of New Plant Varieties (UPOV) system is not tailored for developing
© University of Pretoria
vii
countries. In South Africa, legislation dealing with some aspects pertaining to Farmers’ Rights
is spread over different government departments, e.g. Department of Agriculture, Forestry &
Fisheries dealing with intellectual property protection only in as far as plant breeders’ rights;
Department of Trade & Industry being custodians of intellectual property laws in South Africa
and administrators of, among others the Patents Act; Department of Environmental Affairs
dealing with Access and Benefit Sharing matters; Department of Science and Technology
dealing with Indigenous Knowledge Systems and intellectual property protection emanating
from publicly funded research institutions. More discussions are needed on South Africa
becoming a member of the ITPGRFA as these will pave the way for further discussions and
policy interventions addressing Farmers’ Rights in a broad sense.
As far as the Genetically Modified Organisms are concerned, South Africa has approved only
three Genetically Modified (GM) crops for commercialization in terms of the GMO Act, 1997,
namely cotton, maize, and soybean. This is contrary to some statements made by members of
the public that much more crops, including pumpkin, potato, banana and tomato are
genetically modified. In terms of intellectual property protection, of the total number of GM
varieties protected by plant breeders’ rights per crop: 60% of varieties are GM for cotton, 61%
for yellow maize, 34% for white maize and 63% for soybean. Currently there are no GM events
used in these crops protected in terms of the Patents Act 1978, which effectively means that
there is currently no dual protection for these crops. Dual protection is however one of the
most hotly debated issues because of the impact it might have on the rights of farmers to save
seed. It has been argued that in South Africa dual protection is possible. Scrutiny of the Plant
Breeders’ Rights Act 1976, the Patents Act 1978 and the draft National Policy on Intellectual
Property shows that all are silent on the issue of dual protection of plant varieties. The
Departments of Agriculture, Forestry & Fisheries together with the Department of Trade and
Industry need to initiate discussions around dual protection as well the use of Technology
Agreements, between technology holders and technology users, in protecting GM varieties
and the impact thereof for all role players in the value-chain in order to come up with the
country position in this regard.
This study showed that ornamental plants attract the highest number of plant breeders’ rights
applications. Of the applications received between 2000 and 2010 about 20% are of varieties
developed from indigenous plants. Of plant breeders’ rights in ornamental plants, 84% are
owned by foreign entities. Of the 16% owned by local entities, 12% are privately owned and
4% are owned by public research institutions. Some of the challenges facing this industry
include the fact that there is inadequate turnover to allow for breeding programs and research
initiatives; this is exacerbated by plant breeder’s rights infringements which lead to further
revenue losses. Other challenges the industry face include high labor costs and lack of market
information. The national Department of Agriculture, Forestry and Fisheries together with the
other relevant departments, e.g. the Department of Labour and the Department of Trade and
Industry need to engage more with the floricultural industry stakeholders to discuss the
challenges facing the industry and come up with policies that would be conducive for the
further development of the industry in order for South Africa to benefit from its unique
biodiversity. Literature study has also established that breeders are keen on developing
varieties of medicinal plants that are uniform and stable. This would call for domestic
legislation on intellectual property protection that is aligned with legislation on Biodiversity and
Access and Benefit-Sharing.
This study highlights the importance of engaging stakeholders from both the formal and
informal sector and brings attention to gaps in our policies and legislation. This study has
already made a major contribution in the draft Plant Breeders’ Rights Bill through the inclusion
of the revised provision on farmers’ privilege. This revision is aimed at ensuring that the
legitimate interests of the breeder are protected whilst the rights of the farmers are recognized.
It is hoped that this study will make a positive contribution to future policy developments and
will lay a foundation for future studies pertaining to the plant breeders’ rights system and its
impact in the agricultural sector.
