The new South African Plant Breeders’ Rights Act No. 12 of 2018 (the new Act) was assented to on 27 March 2019 and published in the South African Government Gazette on 29 March 2019. Although the new Act has been assented to, it is not yet in force.  (A copy of the new Act is attached.) The new Act will only come into force once it has been proclaimed and Regulations have been promulgated.

Draft Regulations to the new Act were published on 24 June 2022. (A copy of the Regulations is attached.) The deadline for submitting comments on the Draft Regulations to the Department of Agriculture, Land Reform and Rural Development was 31 August 2022.

Notable aspects of the Draft Regulations are:

Duration and Sole Right

Table 2 of the Proposed Regulations lists the kinds of plants and the period of the sole right, and the period of the plant breeders’ rights. For trees and vines the period of the sole right is 5 years and the duration is 25 years from the date of grant. For all other plants the period of the sole right is 3 years and the duration is 20 years from the date of grant. Although the new Act makes provisions for durations of 20, 25 and 30 years, no plants have thus far been afforded a duration of 30 years.

Exceptions to Plant Breeders’ Rights:

Section 10(1)(d) read together with Section 10(2) of the new Act, provides that the Minister will prescribe Regulations for:

• the category or categories of farmers who may use the protected variety;
• the category or categories of plants that may be used;
• the uses to which the protected variety may be put; and where applicable-

                             (aa) conditions for payment of royalties; and                                                  

                             (bb) labelling requirements.

These are provided in Regulations 5 and 6 of the Proposed Regulations:

For the purposes of section 10(2)(1) farmers are categorised into the following categories, reflecting different types of producers in the Republic:

a) Vulnerable household producer: producers that produces primarily for household consumption to meet the daily dietary needs and has limited resources and skills to operate a market-oriented production system and this category Includes vulnerable women and youth, child headed households, persons with disabilities, farm dwellers and households producing In communal land and commonages that are registered as Indigents or meet the criteria for registration as indigents with their municipality.

b) Subsistence household producer: producer that produces primarily for household consumption to meet daily dietary needs who are not classified as indigents by their municipalities end do not meet the criteria to be registered as indigents with their municipalities and they may market limited surplus production.

c) Smallholder producers: a venture undertaken by an individual or business entity for the purpose of household consumption and derive a source of income from agriculture activities along the value chain and are usually new entrants in the agricultural sector.

d) Medium Scale Commercial Producer: a venture undertaken by an individual or business entity for the purpose of deriving a source of income from agriculture activities along the value chain and are established enterprises producing for market to make a profit.

e)  Large Scale Commercial producer: a venture undertaken by an individual or business entity for the purpose of production and sale of agriculture products to make a profit and ere established enterprises producing for market to make a profit.

In terms of Proposed Regulations a plant breeder's right shall not be infringed by a farmer included in sub-regulation  2(a), (b) and (c), who produces the prescribed maximum quantities of protected varieties of kinds of plants listed in regulation 6 and save on his own holding, or exchange within their category, for propagating purposes, propagating material of such protected varieties.

The exchange of seed does not appear to fall within the exceptions provided for in Article 15(2) of the UPOV Convention 1991.  The UPOV website (https://www.upov.int/about/en/faq.html) states that “Within the scope of the breeder’s right exceptions provided under the UPOV Conventions, UPOV Contracting Parties have the flexibility to consider, where the legitimate interests of the breeders are not significantly affected, in the occasional case of propagating material of protected varieties, allowing subsistence farmers to exchange this against other vital goods within the local community.” Although there is no direct reference in the UPOV Convention 1991, it would appear that provision for exchange may be condoned in the circumstances mentioned above.

In terms of the Proposed Regulations, a farmer included in sub-regulation (2)(d) and (e), and any other farmer who produces quantities of protected varieties for the kinds of plants listed in regulation 6 in excess of the prescribed maximum quantities, may save for propagation purposes, on their own holding, the product of the harvest which they have obtained by planting, on their own holding the protected variety of a kind of plant listed in regulation 6 provided that such a farmer:.

(aa)      has legitimately obtained propagating material of the protected plant

variety concerned;

(bb)      notifies, in writing, the breeder or the holder of the plant breeder's right of the

protected variety concerned as to the volumes of saved propagating material thereof;

(cc)      pays the breeder or the holder of the breeders' right of the protected variety

concerned a reasonable remuneration for using the saved propagating material thereof, in compliance with market conditions, an amount which is considerably lower than the level of remuneration of the purchased propagating material of the same variety in the Republic and the remuneration payable shall be agreed upon by the breeder or holder of the plant breeders right and the farmer in a written licence agreement In accordance to section 34; and

(dd)      preserves the identity of the protected variety at all times by dearly indicating

on the label of any container containing saved propagating material of a protected variety the following information:

i)          name of the kind of plant (crop);

ii)         variety denomination (name) approved in terms of the Act; and

iii)        name end address of the producer of the propagating material.

The exception to a plant breeders right in terms of section 10(1)(d) does not apply to protected varieties of ornamental plants, and to any protected varieties of any kind of plant not listed under regulation 6.

For any of the kinds of plants listed in regulation 6, relevant industry or commodity group may apply to the Minister responsible for Agriculture for a statutory levy as may be applicable.

The categories of plants on which section 10(2)(a)(11) applies are listed below and a farmer Included in accordance to categories in sub-regulation (2Xa), (b) and (c) is a farmer who produces quantities not exceeding the prescribed maximum quantities for each kind of plant.

Application for a Plant Breeders’ Right:

In terms of Proposed Regulation 8(2), an applicant who is not domiciled or resident in South Africa can only submit an application through a local agent. A welcome change, in terms of Regulation 9(2), an applicant may secure a filing date by submitting copies of the application electronically to the Registrar. The original documents must be submitted within 3 months.  In the old Regulations a third party could object to a PBR application within 6 months of publication. In terms of proposed Regulation 14(1) this time period is reduced to 60 days.

DUS Tests and Trials:

Proposed Regulation 18(1) provides that material for tests and trials in accordance to section 26 must be provided to the Registrar:

a) in the case of potatoes, trees and vines, the required amount of plant material must be made available for tests and trials within 5 years from the filing date and the applicant or agent must deliver the material to the office of the Registrar or inform the Registrar of the location of the material as applicable;

b) in the case of all other crops, the required amount of plant material must be delivered to the office of the Registrar within 24 months from the filing date; and

c) the specific of amounts of material to be submitted is obtainable from the office of the Registrar.

In terms of Proposed Regulation 9(1), it is possible to apply to the for an extension not exceeding the initial period stipulated In sub section 18(1) ; and in the event of imported material, the application must be accompanied with a sworn affidavit as proof that the plant material has been imported into the Republic.

In the old Regulations, there was no limitation on the extensions of time for providing plant material for testing. The new limitations will make it more onerous for applicants that need to import material from outside of South Africa, and foreign applicants will need to take note of these limitations/

Payment of Annual Fees:

In terms of Proposed Regulation 21, an annual fee is payable to keep a granted PBR in force. If the annual fee is not paid the PBR will be cancelled in terms of Section 38(1)(d)(ii) of the new Act. As with the old Act and Regulations, there are no provisions for the restoration of a cancelled PBR.

Under the old Act and Regulations, the deadline for paying the annual fee was 1 January with an automatic extension of time until 31 January. Under the new Act, the annual fee must be paid by 31 March each year, with a six-month extension of time available.

Written by David Cochrane, Partner, Spoor & Fisher