1. NEGOTIATING MANDATES: PLANT BREEDERS’ RIGHTS BILL
Meeting of the Select Committee on Land and Mineral Resources (National Council of Provinces)
November 2017

2. EASTERN CAPE Clause Comment from the province Response by DAFF
The definition of sell is too wide; the small scale farmers who have been bartering, trading and sharing seeds for decades will now have to exchange money to procure their seeds to enable them to feed their families.
Sell is used in the following sections:
Novelty period
Clause 15(2)(a): 1year in South Africa or 4/6 years in any other country
Breeder cannot apply for IP if the material is ‘old’
Scope of a plant breeder’s right
Clause7(1)(c): Authorisation required for the ‘sale or any other form of marketing of the protected variety
Clause 10 provides for exceptions to the scope of a plant breeder’s right
Private and non-commercial (e.g. subsistence farmers)
Experimental purposes
Breeding of other varieties
A farmer who uses the protected variety in accordance with subsection (2)

3. SEED SHARING Current Plant Breeders’ Rights Act, 1976
Comments received from stakeholders
PBR Bill
Section 23(6)(f) Farmers allowed to use seed for propagating purposes on land occupied by him, uses harvested material on that land….provided that harvested material from the replanted material shall not be used for purposes of propagation by any other person other than that farmer.
Prohibits any seed exchange of protected varieties among farmers
Farmer not defined
Commercial farmers
Negative effect to some industries, e.g. wheat
Royalties
Crops not defined
practice of seed saving
vegetatively propagated/fruit crops
yield per hectare
hybrids
Uses not defined
exchange
Brown-bagging
Clause 10(2)(a)The Minister must prescribe
the categories of farmers
categories of plants
uses
where applicable
aa) conditions for payment of royalties
bb) labelling requirements
Regulations: Consultations
Stakeholders
State Law advisers
Portfolio Committee

4. EASTERN CAPE Clause Comment from the province Response by DAFF
Including of protected varieties in clause 7 amounts to uncompetitive behavior.
Protected varieties are the focus of the Bill
Clause 7(2)(b)
Must be deleted
The harvested material must have been obtained through the unauthorized use of propagating material
Unauthorized use would not refer to acts covered by clause 10 –exceptions covering subsistence farmers
Clause 22
(indicated as 23 in the mandate)
The Bill should be modified, change ‘denomination’ to description
Denomination: name of the variety
Description: describes the morphological characteristics of the variety e.g. size of the plant, color of flowers, shape of leaves, etc.

5. FREE STATE Clause Comment from the province Response by DAFF Clause 1:
Definition of sell: The Bill criminalize the exchange of farm-saved seed from protected varieties
As explained under Eastern Cape
Define Non-commercial as ‘a person not making or attempting to make profit from the activity contemplated in section 7(1), commercial has a corresponding meaning
Commercial and Non-commercial - Never been defined in our law. In terms of interpretation words must be given there ordinary grammatical meaning, unless to do so would result in absurdity. Ordinary meaning clear.
Clause 10(1)(a)
Private and non-commercial: In order to benefit emerging farmers ‘and’ must be substituted by ‘or’ to allow ‘private use of seeds, whether commercial or non-commercial
Emerging farmers will be covered by exceptions in clause in clause10(1) (d) read with 10(2)
Clause 10(2)(iv)
Insert (b) The Minister shall, by notice in the Gazette and on such conditions as he or she may specify in the notice, exempt any type of business from the provisions of section 7(1) of the Act
7(1) provides for scope of a plant breeders’ right granted to breeders.
Exceptions to this scope are provided in clause 10(2)

6. GAUTENG Clause Comment from the province Response by DAFF Clause 1:
Definition of sell: be amended by deleting paragraph (b) thereof
As explained under Eastern Cape
Definition of persons: be amended to include natural and juristic persons
Defined in the Law of Interpretation
Clause 30(3)
Be amended to extend grace period from three to six months
In agreement and shall be amended accordingly
Clause 41
Be amended to include a sub-clause making provision for the staying of criminal proceedings against an infringer pending an internal process
Clause 41 Appeals: deals with appeals against the decision of the Registrar ─an internal process
Criminal proceedings: A stay cannot be effected automatically

7. GAUTENG Clause Comment from the province Response by DAFF Clause 42
Be amended by the rectification of the reference to section 41 instead of 43(1)
In agreement and shall be amended accordingly
Clause 55(1)
Be amended to address the concern of imprisonment raised by various stakeholders
Prosecutions are instituted by the National Prosecuting Authority. Prosecutions will only be instituted if there is sufficient evidence of such alleged offence.
Also the clause protects those breeders who may not be able to go the civil route due to the expensive nature of civil cases
Performers Protection Act, 1967; and Trade Marks Act, 1993, Canadian Plant Breeders’ Rights Act, 1990 and the Australian Plant Breeders’ Rights Act 1994 have similar provisions.

8. GAUTENG
Clause
Comment from the province
Response by DAFF
Clause 59(3)
Insertion of a new subsection under section 59(3) to deal with the issue of regulating new applications made after the commencement date
New applications received after the commencement would be dealt with under the new Act.

9. KWAZULU-NATAL Clause Comment from the province Response by DAFF
Definition of sell: be amended by deleting paragraph (b) thereof
As explained under EC response
Clause 7(2)
Be deleted
Clause 10(1)(a)
‘private and non commercial’: retain private or non-commercial
Properly defined to allow re-use by a farmer including exchange
As explained under FS response
Addressed by clause 10(2) with regulations (see EC response)
Clause 10(2)
Inadequate as it does not expressly recognize the rights of farmers to reuse and exchange farm saved seed of the protected variety
As explained under EC response on seed sharing
Clause 55(1)(b)
Royalties/compensation can be claimed in addition to section 55(1)(b)
Covered by clause 55 (1)(c)

10. LIMPOPO Clause Comment from the province Response by DAFF Clause 7(1)
The Bill should have specific provision for the protection of traditional seed breeders and local farmers
Traditional seed breeders covered by the Act
Local farmers can access protected varieties – subsistence farmers also covered under exemptions
Clause 55(1)
The Bill must make provision for the prevention of hi-jacking of breeds or stealing trace by other farmers and producers
Covered by clause 32: Infringement of plant breeder’s right
Clause 55(2)(e)
Registered seed breeders must be held accountable for the performance of their seed or varieties when planted as determined according to clause 26(1) on distinctness, uniformity and stability tests
DUS: covered by clause 31: Maintenance of propagating material read with,
Clause 38: cancellation of plant breeder’s right
Clause 55 (3) (a)(b) (c) and (d)
Need to specify the adequate Rand value amount fine and percentage of royalties because as it is it might cause a challenge when implementing or enforcing penalties to offenders
The intention is for fines to be aligned to the Adjustment of Fines Act (Act 101 of 1991).

11. MPUMALANGA Clause Comment from the province Response by DAFF
Clause 1: Definition
“Registrar”: means the person contemplated in section 3(1) and must have regional offices in the provinces
Additional regional offices would lead to duplication of infrastructure and resources across the country.
Greater consistency is achieved through the current centralized system
Regional evaluations are undertaken as and when on-site trials are evaluated.

12. NORTHERN CAPE & NORTH WEST
No amendments proposed

13. WESTERN CAPE Clause Comment from the province Response by DAFF
No specific clause
There should be separate legislation that speaks to and address concerns and interests of ‘informal’, small-scale, and part time farmers
The Department interprets this comment to mean that there must be separate Plant Breeder’s Right legislation for the mentioned categories of farmers.
However, if this is incorrect, the provinces may wish to guide on what the scope of the proposed legislation would be.
The current Bill provides for exceptions to ensure that traditional seed practices of smallholder farmers can continue. 
The department has developed a National Plan for the Conservation and Sustainable Use of Plant Genetic Resources:
support the conservation and  sustainable use of landraces/traditional varieties

14. WESTERN CAPE Clause Comment from the province Response by DAFF
No specific clause
Entire contents of the Bill should be revised
The current Bill originates from existing legislation which is already being implemented.
The current amendments aims to strengthen the existing regulatory framework. Thus, the comment to revise the Bill in its entirety has implication for the existing legislation.
DAFF requires more detailed guidance from the province on the which areas to revise.

15. THANK YOU