Plant Breeders’ Rights [B11-2015] & Plant Improvement Bills [B8-2015]: public hearings

Agriculture, Land Reform and Rural Development

15 May 2015
Chairperson: Ms M Semenya (ANC)
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Meeting Summary

Public hearings were conducted on the on the Plant Breeder’s Rights and Plant Improvement Bills. The  African Centre for Biosafety noted, speaking firstly to the Plant Breeders Rights Bill, that the South African seed sector was worth R5.5 billion (maize contributing R3.4 billion) in the market. South African commercial seeds markets were presently concentrated among a few major corporations, resulting in a lack of competition and thus a rise in seed prices, which were becoming of increasing concern also to grain producers. The Centre stressed that any new legislation should accommodate the interest of all stakeholders, and seeds must be innovated for this reason. Fair and equitable systems of plant variety should be protected, to encourage local breeding, innovation, support local farming systems and encourage farmers to develop new varieties best suited to social and ecological conditions. Breeders rights were being challenged by the contemplation of royalties and the new system would prove too onerous and not give enough incentives. The main issue with the Plant Improvement Bill was that the innovation happened for one sector, but the one-seed system was negatively affecting farmers. There was an assumption that all farmers wanted to follow the mainstream route, which was not correct, and sharing of seeds should be equitable and legalised. More public breeding should be encouraged, farmers must be consulted and support was needed to help organisations develop.

Biowatch, an NGO based in KwaZulu Natal, gave the views of three farmers farming using organic and traditional methods of farming, all of whom stressed that the way that farmers planted to increase their stock of seeds (which were also exchanged) produced more resistant and healthy plants and did not use chemicals. Farmers required support from government for heavy equipment such as grinders for maize, but there should be recognition of the value of organic methods. Products were not being given sufficient space in the commercial markets, and traditional farming should not be taken for granted. Biowatch urged that South African policies and laws should protect cultural biodiversity in the nation. The current Bills were not specific enough on implementation and alluded to criminalisation of farmers, which was of concern.

Agricultural Research Council (ARC) made recommendations for the amendment of definitions, and a more specific statement in the Bill that genetic modification was essentially a derived variety. It was in support of stronger penalties.

TopFruit also commented on interpretation and suggested that a definition of "essentially derived varieties" was open to interpretation. It was suggested that farmers privileges should not include flowers and fruit, which should be excluded from the clause. It was suggested that successful marketing programmes should receive annual reductions on marketing fees. One concern was that the draft produced in the workshops, on which agreement had been reached, was not the same as the current draft. Guidelines would be needed on compulsory licensing.

The SA National Seed Organisation agreed that food security was a serious matter throughout the world, not just in South Africa. Any legislation must be fully aligned with the realities of poverty and inequality. It was also important to align anything with the principles of the UPOV Convention. It would be important to  to use scarce resources efficiently, also in order to boost international trade. The principles behind the Bills were broadly supported.

Members asked for more clarity on the request for access to machinery, and suggested that farmers should check whether they were not already able to link to other farming programmes and incentives. More information was requested on reports of seed dumping. Members assured the audience that the Bill did take into account the interests of all farmers. They asked for explanation of the budget cuts of the ARC, and asked for more elaboration on why it was felt that the Bills challenged intellectual property rights. TopFruit was asked to expand on the creation of jobs. SANCO was asked why it had cited USA comparisons and how these were relevant to Africa. Members also asked presenters to expand on whether they felt the Bills were creating too much red tape or putting too much power in the hands of the Minister. 

Meeting report

Plant Breeders Rights Bill and Plant Improvement Bill: Public hearings
African Centre for Biosafety submission

Ms Haidee Swanby, Representative, African Centre for Biodiversity, an NGO based in Johannesburg, stated that hunger affected 64% of South African children, as reported in the news on the previous day.

She would firstly comment on the Plant Breeders Rights Bill. She noted that the South African seed sector was at a total value of R5.5 billion (maize contributing R3.4 billion) in the market. South African commercial seeds markets are presently concentrated among a few major corporations, resulting in a lack of competition and thus a rise in seed prices. Grain producers are increasingly concerned about the seed prices. She commented that any new legislation should accommodate the interest of all stakeholders, and seeds must be innovated for this reason. A fair and equitable system of plant variety should be protected, to encourage local breeding and stimulate innovation in the sector, to support the development of farming systems and strengthen capacity of farmers to develop varieties adapted to social and ecological conditions. The World Trade Organisation had suggested that the State should grant exclusive rights to plant producers.

Small producers were equipped to stay with the provisions of the International Union for the Protection of New Varieties of Plants (UPOV) Convention of 1991, to which South Africa was not actually a party to. It was however a party to the 1978 convention which recognises and ensures to the breeder of a new plant a variety rights that should be respected, however the current new system, which requires much more from the producers, such as recycling and exchange is a challenge. Breeders' rights are challenged by the contemplation of having to pay royalties. In conclusion, the major issue is that the current agriculture system is failing South Africans, the must be incentive in seed breeding and to ensure protective laws on the sector.

Turning to the Plant Improvement Bill, she noted that the main issue here was that the innovation happened for one sector, Distinct Uniform Stable, where plants can be planted together, to nourish each other in the soil. The one-seed system is affecting farmers and the support they get from government, and the "dumping" of seeds and chemicals on farmers is not good.

She noted that a current problem was the undermining of agro-ecological farming, assuming that farmers wanted to be in mainstream farming, but that was not true. The legality of sharing seeds must be equitable across the country. There should be more public breeding with the farmers, consultations must take place, and support was needed for organisations, to develop new mechanisms. There must be a safeguard clause. This Bill also appeared to be geared to commercial farmers and was not helping the small farmers on the ground.

The Chairperson referred back to the issue of the statistic of 64% of South African children being hungry, and said that this may not be true, given the interventions of the School Nutrition Programme, and social security grants available to many South Africans.

Biowatch submission
A representative for Biowatch explained that this was an NGO based in KwaZulu Natal and the farmers who belonged to it would be making presentations.

Ms Ntombi Ndandwe, Mr Thembinkosi Mthembu and Ms Samu Zuma spoke about their farming experience and the implication of the Bill on their work.

Ms Ndandwe mentioned that traditional seeds were part of her culture, and were planted annually with other seeds so that they could increase. She noted that this provided for healthy foods, saved water, that farmers did not have to keep re-buying seed and that they would not need to buy chemicals. She suggested that it would be instructive for the government to come and visit sites to see what was done in organic planting, and commented that farmers needed the support of government to provide farmers with machines for grinding maize. The problem was that people were now having to go to the shops and buy mealies that were not organic. She said that future generations should still be able to see and use organic seeds. 

Mr Mthembu stated that organic planting and production kept the soil fertile, and the issue of production was also worth mentioning because of products that were not given space in the very competitive market. Organic farmers who were proud of their organic traditions wanted the chance to expose their produce to the market. It was expensive to buy manure all the time, so the traditional methods were sufficient. He claimed that the Bill would lead to "starvation and poverty" and pleaded that traditional farming should never be taken for granted.

Ms Zuma indicated that she worked with farmers in understanding their indigenous farming traditions, and they had a method of sharing seeds, instead of buying them from commercial stocks. The government should support these farmers by providing them with seeds, so they could be able to produce more.

Ms Elfrieda Pschorn-Strauss, Biowatch representative, said that South African policies and laws should protect the cultural biodiversity in South Africa, equally with the commercial interests of the country. The current law did not specify how implementation of many of the provisions would work; and it also alluded to criminalisation of farmers. She noted that any legislation must be specific. Farmers must have incentives to breed, and share their seeds. The legislative framework must be inclusive of the traditional sector.

She noted that the Department must be commended for engaging with the public on this matter.

Mr C Maxegwana (ANC) asked for clarity on the request by ACB for access to machinery, and wondered if use of machines for grinding would in any way affect the nutritional value of the mealies produced.

Mr T Ramokhoase ANC suggested that the farmers should check whether they were not already able to link in to farming programmes of government that assisted farmers with equipment to accelerate their production.

Ms Z Jongbloed (DA) asked for clarity on the issue of seed dumping by the farmers.

The Chairperson mentioned that both NGOs had expressed the fear of exclusion of small holder farmers, but she wanted to note that the Bill did take into account the interests of all farmers. The Bill was still to go to the National Council of Provinces and the National Assembly for further deliberation, so this was not the conclusion of these matters.

The Biowatch representative said that farmers were benefiting from the government to some extent, but it was not sufficient. There needed to be far more done; for example, skills development should be aligned to agriculture. It was not the responsibility of the farmers to inform the public on agricultural awareness; the government must recognise traditional farming and support it wherever possible. The most nutritious foods were those derived from natural seed and farmed without chemicals and these did taste different. Some time ago, machinery had been made available but it was not any longer. It was important for the farmers to be able to make their own preparations such as planting, and there were agreements for tapping into the market- such as with Pick n Pay, who did support the farmers. The supermarkets had commented that spinach produced organically stayed fresh for far longer; there was no secret, it was simply by using traditional farming methods.

Agricultural Research Council (ARC) submission

Prof Bongani Ndima, Stellenbosch-based representative, Agricultural Research Council, noted that the Council (ARC) was a statutory body, established under Section 2 of the Agricultural Research Act, 86 of 1990. The ARC had a direct interest in the provisions of the Plant Breeder’s Rights Bill, 2015.

Some of the recommendations on this Bill were set out. Firstly, in relation to the definitions, the ARC recommended that the word "person" in the definitions should be expressed in the plural, to be inclusive, or even an adjustment to person(s) would be sufficient.

It was further proposed that the subsections should specifically read that genetic modification was essentially a derived variety.

Section 32(b) of the Act should be-read with section 6(2) instead of section (7).

In terms of penalties, the ARC recommended that the fines should be four times the normal fee, to be a stronger deterrent.

Finally, he summarised that the ARC was important for the transparency of the agricultural sector,

TopFruit submission
Mr Peter Allderman, TopFruit representative, said that the legislation must follow the rule of law and be objective rather than merely reasonable. He introduced TopFruit by saying that it was a business that had been in existence since 1983 and specialised in the commercialisation of fruits in South Africa. The business had planted at least 15 million trees, creating 20 000 jobs.

He commented that the phrase and definition of "essentially derived varieties" gave rise to differences in interpretation. For the clause dealing with the farmer’s privileges, he suggested that this should not  include flowers and fruits, and they must be excluded from the clause. He suggested that successful marketing programmes should receive annual reductions on marketing fees.

He noted that the draft produced for workshopping was not in line with the current draft. Some clauses had been adjusted without consultation after the workshop, when he believed that these clauses had been agreed upon.

The International Union for the Protection of New Varieties of Plants (UPOV) convention of 1978 provides that plant breeders rights are time-bound intellectual property rights, meaning the protection of these rights can expire over time – given the legislation of each specific country, the minimum is 15 years, however the recent UPOV -1991 extends this time period to 15-20 years as minimum time. It is imperative for the Bill to refer to these provisions of the UPOV, so that they can be sound an in sync. Our laws must be in line with rectified conventions such as this one.

Finally, he commented that guidelines must be provided for compulsory licensing dealt with elsewhere in the Bill.

South African National Seed Organisation (SANCOR) submission

The representative for the SANCOR noted that this organisation was established in 1989 and had 114 members, with interest in the seeding industry. Food security remained a serious matter throughout the world, and South Africa must align its legislation in context with the lives of its people, and the realities of poverty and inequality.

South Africa must be covered by the UPOV, the organisation formed in compliance with the International Convention for the Protection of New Varieties of Plants, and it was suggested that it would be important to rectify this Act, as it would help advance the agricultural sector to meet global markets.

The South African National Seed Organisation supported the Plant Breeders Rights Bill as it presently stood.

However, it did wish to comment on the Plant Improvement Bill, and highlighted the need to efficiently use scarce resources. International trade was an important source of income, and this demanded good use of internationally accepted methods and procedures. The South African National Seed Organisation also broadly supported the Plant Improvement Bill.

Ms Jongbloed asked if Prof Ndima could explain the budget cut and the reasoning for that. She asked why it was felt that the implications to intellectual property were so severe, and asked if there were other options. She asked how the ARC would try to ensure that information was being transferred to small holder farmers.

Mr Ramokhoase asked TopFruit about the 20 000 jobs created, and whether those had been created in farming, or the actual production process? He also asked for more comment on why the 1978 Agriculture Act was favoured and asked for justification on that issue?

The Chairperson asked the South African National Seed Organisation about the fact that it had cited comparisons with the United States of America, and said that this was worrying because USA was surely not producing seeds tolerant to drought that would be needed in Africa, and asked if this had been tested, and where the observations were derived.

Ms Jongbloed asked presenters to comment on the red tape that seemed to be inherent in the Bills, for the Bills seemed to be putting a lot of power in the hands of the Department of Agriculture Forestry and Fisheries, and the Minister.

SANCOR responded that there had been evidence from Kenya in relation to the drought resistant seeds imported from the USA, and such research was conducted by the Bill and Melinda Gates Foundation. It further commented that the Plant Improvement Bill was voluntary, on the basis that sellers had discretion on what to sell and to whom, and this was good for the market.

Prof Ndima from ARC responded that he believed that a term of up to 10 years of imprisonment was a reasonable penalty for anyone found guilty of breaching this legislation. Budget cuts had been effected and the implication was that some researchers had to be retrenched, given the financial implications of the National Treasury directive that only critical vacancies should be filled. He commented that the development and research in both science and technology fields were vital for economic development in the country. For South Africa to come up with good responses to international advancements, it would need skilled scientists housed in several research institutions right across the country. Poor farmers should be supported with all means possible and a failure to do so could not be excused. The concentration of power was not well defined in the Bill, thus he believed that it would not be dealt with.

Mr Peter Allderman said that TopFruit had supported the 1991 At although he commented that it was unfortunate that South Africa had not rectified this Act, as those countries with better food security had addressed similar issues and rectified inconsistencies. He believed that compliance with the requirements of the Act would be beneficial to the agricultural sector entirely.

The Chairperson noted that some Mitchells Plain farmers were present, but since they had not asked for a presentation slot in advance of today's meeting, their presentation should be presented in writing to the Office of the Chairperson.

The meeting was adjourned.

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