The Department of Agriculture, Forestry and Fisheries (DAFF) briefed the Committee on the Performing Animals Protection Amendment Bill and the Department’s responses regarding public hearing comments on the Plant Breeders’ Rights Bill.
The Legal Administration Office of the Department of Agriculture, Forestry and Fisheries (DAFF) took the Committee through the amendments and insertions contained in the Performing Animals Protection Amendments Bill (PAPA). The amendments were in Clauses 4, 5, 6, 7, 8, 9 and 10, and were mainly around the changing of the words “certificate” to “licence”, “dogs” to “animals for safeguarding”, and the increase of fines and prison sentence from R4000 to R20 000 and from twelve months to five years, respectively.
The Committee was also informed that during the processing of the Bill, and after the public hearings, it became clear that the consequential amendments of certain Sections of the principal Act were required to be added to those initially proposed by the Executive. These additional consequential amendments included Sections 4, 5 and 7 of the Principal Act.
A resolution was taken by the Committee to approach the Constitutional Court (Concourt) to request an extension of 12 months from the current deadline of 12 July 2015. DAFF filed an urgent application to the Concourt for the extension. The affidavit filed by DAFF centred around the fact that the additional amendments require the Committee, according to Rule NA249 (3b), to obtain permission from the National Assembly to amend other provisions or existing legislation other than those which the Executive had initially sought to amend.
The Concourt granted a short extension to 28 August 2015 instead of the 12 months requested in the founding affidavit.
The view of the Concourt was that it is in the interest of justice that a written submission of not more than 20 pages be written by both parties – DAFF and NSPCA. However, the NSPCA informed the DAFF it would not file Heads of Arguments in the matter. DAFF is still awaiting feedback from the Constitutional Court.
The Committee was further briefed about the responses of the Department from the public hearing comments made by stakeholders regarding the Plant Breeders’ Rights (PBR). The comments focused on areas such as the right to apply for a PBR, protection given to the holder of plant breeder’s rights, duration of plant breeder’s right, exhaustion of plant breeder’s right, transfer of a plant breeders’ right, and many others.
Members asked if the Concourt would grant the Department an extension of 12 months; wanted to know if there is any indication of when the judge would deliver the ruling; and if the Department was under the assumption of not filing an application to the Concourt, would the Concourt consider the old application or assume the Department would file a new one. With regard to public hearings, they wanted to establish if reasonable inputs from stakeholders have been fairly considered; asked the Department how many stakeholders it dealt with, and if some of their considerations were taken into account; and asked for clarity on the International Treaty, import conditions, and UPOV 78/91.
Advocate Barry Beukes, Deputy Director in the Legal Administration Office: DAFF, took the Committee through the amendments and insertions contained in the Performing Animals Protection Amendment Bill (PAPA).
Clause 4, Section 4 substituted “dogs” for “animals”.
Clause 5, Section 5 changed “shall be” to “is”. R4 000 is changed to R20 000. Twelve months is substituted for five years.
Clause 6, on (c) and (d) “certificate” is changed to “license”.
Section 7 sees the insertion of (b) which deals with the changing of “shall” to “must”, insertion of “or dogs”, and changing of “certificates” to “licenses” and (c) which deals with the substitution of “certificates” by “licenses”. Then (e) deals with consequential amendment. R4 000 is changed to R20 000, and twelve months is changed to five years.
Clause 8, Section 11 – no changes.
Clause 9 – a new clause has been inserted before the law is enacted. This is subsection 2 and 3.
Clause 10 deals with changing “dog” to “an animal for safeguarding”.
Clause 11 deals with the title of the Act. It is called the Performing Animals Protection Amendment Act, 2015.
Update on the Performing Animals Protection Amendment Bill [B9-2015]
Dr Thembile Songabe, Director in Veterinary Public Health: DAFF, informed the Committee that during the processing of the Bill, and after the public hearings, it became apparent that consequential amendments of certain Sections of the principal Act were required to be added to those initially proposed by the Executive. These additional consequential amendments included Sections 4, 5 and 7 of the Principal Act.
On 5 June 2015, the Portfolio Committee on Agriculture, Forestry and Fisheries deliberated on the consequences and the implications for the deadline of 12 July 2015. A resolution was taken by the Committee to approach the Concourt to request an extension of 12 months from the current deadline of 12 July 2015.
DAFF filed an urgent application to the Concourt for the extension. The basis of the affidavit filed by DAFF centred around the fact that the additional amendments require the Committee, according to Rule NA249 (3b), to obtain permission from National Assembly to amend other provisions or existing legislation other than those which the Executive had initially sought to amend.
The time frame with regard to these amendments is dependant upon whether the report is placed on the order paper and deliberated by the National Assembly and the date that a resolution is taken by National Assembly.
The National Council of Provinces (NCOP) must also process the Bill in terms of Section 75 of the Constitution and the relevant NCOP Rules. On 10 July 2015 the Concourt concluded that the Minister would grant a short extension pending a determination of the request. In this regard, the order made on 27 November 2014 has been varied by further extending the suspension of the declaration of constitutional invalidity of the impugned sections in the case of NSPCA v/s DAFF.
The Concourt granted a short extension to 28 August 2015 instead of the 12 months requested in the founding affidavit.
The view of the Concourt was that it is in the interests of justice that a written submission of not more than 20 pages be written by both parties. An order was issued as follows:
- The NSPCA was directed to file an opposing affidavit, if it so wishes, on or before 17 July 2015
- The Minister of Agriculture, Forestry and Fisheries must file a responding written argument on or before 24 July 2015
The Concourt ordered that the National Society for the Prevention of Cruelty to Animals (NSPCA) to further file a responding affidavit by 31 July 2015.
On 13 July 2013 the Department received communication from the NSPCA that the party would not be filing Heads of Argument in the matter, but would be leaving the matter in the hands of the court. By implication this means DAFF would also not be filing any responding affidavits. This then leaves the decision to the Concourt regarding the extension. In view of the above, DAFF would now wait for further feedback from the Concourt.
Response by DAFF to Public Hearing Comments
Ms Noluthando Netnou-Nkoana, Director in Genetic Resources, DAFF took the Committee through the responses clause by clause.
The definition of “Convention Country” should be amended to “Agreement Country” to recognise Zimbabwe (which is not yet a member of UPOV) and the agreement of South Africa in terms of PBRs with this country. ‘Convention Country’ is only for those countries that are also members for specific UPOV matters e.g. recognition of priority.
DAFF is not aware of agreement between Zimbabwe and South Africa on PBR (Plant Breeders’ Rights).
Other clauses include, ‘any other country’
Clause 6: Right to apply for PBR
It is not clear who is entitled to apply for a PBR. It is addressed in 16(1) and should be read with the definitions of applicant and breeder.
Clause 7: Protection given to holder of plant breeder’s rights
On Section 7(3)(b)(i) it is suggested to add, a variety, which includes a sport or mutation that must be regarded as essentially derived variety (EDV). Inclusion of examples may exclude EDVs (Essentially Derived Varieties) obtained in other ways. The UPOV Council has adopted Explanatory Notes on Essentially Derived Varieties to guide member countries.
Clause 8 (2): Duration of plant breeder’s right
The kind of crops per period should be specified. Currently, this is vague and leaves room for periods being altered at any stage. Section 8(2) states that these would be prescribed in the Regulations. The reason to keep this in the Regulations was to be able to alter as per industry needs e.g. industry requested potatoes and fruit trees to carry 30 years.
Clause 9: Period of Sole Right
It does not specify who would prescribe how long the sole right would be. The Minister prescribes the Regulations but these Regulations are consulted with stakeholders before they are submitted to the Minister.
Clause 10: Exceptions to plant breeder’s right
It is requested that fruit and flowers be specifically excluded. It is envisaged that all exceptions would be covered in the Regulations (after extensive consultations with all stakeholders). The Minister is empowered to decide on a royalty that may be different to that charged by the owner. The intention is for the Minister to prescribe conditions for payment of royalties and not the amounts. The Minister must be clear about definitions held within the Bill that speak to smallholder farmers and be clear in allowing farmers to save and exchange seed. The Bill must give specific guidelines on this provision and include a clause that states that no contract or other agreement can annul these exceptions. The law is skewed too much in favour of the breeder. Categories of farmers, crops, and uses would be defined in the Regulations (after extensive consultations with all stakeholders). Section 10(2)(a) is not keeping with UPOV 1991 Act. South Africa is not bound by UPOV 1991. Exceptions attempt to cater for South African circumstances.
Clause 11: Exhaustion of plant breeder’s right
clause should make it clear that legislators do not wish to exclude an owner from charging per plant plus a production royalty and other fees as appropriate. This is relevant in relation to the notion of “sold or otherwise marketed by the breeder or with his consent”. The right is not exhausted when the material of the variety has been sold or otherwise marketed without the breeder’s consent.
13: Transfer of a plant breeders’ right
Licensees should be given a notice of assignment. The onus of informing the Registrar of an assignment should rather be on the assignee. Section 13 should include a clause stating “unless an assignment is recorded, it shall not be valid, except as between the parties thereto”. Section 13(2) does not contain a provision similar to provision 29(1)(b) of the 1976 Act, to the effect that it must be proved that the notice of the transfer of a PBR has been served on every person licensed in respect of the PBR.
The onus of informing a licensee is with the PBR holder. Licence: private contract between breeder and licensee. The Registrar is not in a position to ‘police’. The Registrar mainly deals with PBR holder. A Provision is made for compulsory licences.
15: Varieties in respect of which plant breeders’ rights may be granted (varieties of recent creation)
The UPOV Act of 1991 Art 6(2) provides for novelty in regard to varieties of recent creation, which should also be included in the Bill. i.e. in the case of a plant genus or species which was not previously included for protection by the PBR Act. The novelty requirement would be satisfied even where the sale or disposal to others took place earlier than the time limits defined in 15(2)(a).
This Bill offers protection in respect of any variety of all plant genera and species.
Clause 16: Application for grant of a plant breeder’s right
“application being returned to the applicant” is unclear, and should be replaced with “application being rejected”. It is not rejected, as in clause 19, per se. The application is returned to the applicant not to clog the system. It is up to the applicant to re-submit the application once all outstanding documents become available, as long as such application still complies with the requirements of the Act, e.g. novelty.
Clause 18: Provisional protection
Provisional protection has weakened compared to the 2013 draft. Vegetatively and asexually propagated species should also feature under provisional protection
Section 18(2) was inserted to clarify that infringement proceedings may be instituted only after a plant breeder’s right has been granted.
19: Rejection of an application
Sections 11 (g) and (i) of 1976 Act have been omitted. These sections should be retained.
They are not included because these sections deal with matters the Registrar cannot verify before tests and trials are concluded.
The term “misrepresentation” is too onerous. It is not fair for a breeder to lose rights in the situation where he/she was not aware that an incorrect representation had been made or where the incorrect representation is not material. It should be amended to: “a material misrepresentation that the applicant was aware of at the time of filing the application”.
It would be impossible for the Registrar to determine that the applicant was not aware of the misrepresentation.
At this stage there are no breeders’ rights to lose as it is at an application stage. If the Registrar rejects due to misrepresentation, an applicant would be informed.
Clause 21: Amendment of application
The requirement that the description of the variety may not be amended is too onerous. A provision should be made for the correction of obvious errors. If an amendment of an application affects the description of the variety, it creates uncertainty around the true identity of the variety concerned.
24: Amendment of denomination
There are situations where it is necessary to amend a denomination after grant. Section 24(3) should refer to “before or after the grant”. Provision is made for amendment of denomination by Registrar in Section 24(1). Section 24(3) refers to when the applicant requests an amendment. This must be only before the grant as the denomination is the unique identity for the variety concerned. Currently, applicants change denominations up to three times after the grant of a plant breeder’s right, thereby confusing farmers and consumers regarding the identity of such a variety. Also, the Department is not aware of any other PBR law that allows for a change of denomination after a PBR has been granted.
Clause 26: Examination
26 (2) should be amended to provide that it is possible to obtain further extensions of time ‘on good cause shown’ as on a number of occasions plant material has died in quarantine due to no fault of the applicant
This clause was discussed extensively during public consultations. It was agreed that initial periods would be realistic enough to cater for instances where material dies in quarantine and, therefore, instead of the current 12 months initial periods, it can be, for example, 5 years and extended for another 5 years. The aim is to address the current practice where, in some instances, plant material is submitted 15 years after the application was lodged. Also, ‘on good cause shown’ is open to different interpretations.
28: Grant of plant breeder’s right
Section 27 should mention that the Registrar must publish the grant of an application. Section 27 deals with refusal to grant a plant breeder’s right.
All publications would be dealt with in terms of clause 40.
Clause 30: Payment of annual fees
Section 30 must be amended to make provision for the restoration of a lapsed application where the non-payment of a renewal fee was unintentional and the holder makes an application for restoration with no undue delay after becoming aware of the non-payment.
Cancellation of a Plant Breeder’s Right due to non-payment of fees is one of the conditions prescribed in the UPOV Convention (article 10 of UPOV 1978 and Article 22 of UPOV 1991).
The Department is not aware of any country that provides for a restoration of a PBR once it has been cancelled due to non-payment of fees.
32: Essentially derived varieties
The wording should read ‘...contemplated to 6(1), read with section 6(2) and section 6(3)’
Clause 6 refers to inspection of documents. Reference to clause 7 in the Bill is correct.
Clause 36: Hearing of application for and issue of compulsory licence
On Clause 36(10) it should be clarified that the payment would not be less than that paid by other licensees. DAFF is satisfied with the provision in its current form as it refers to ‘equitable compensation’
Clause 52: Offences and Penalties
The holder of PBR should be allowed to calculate royalties in three ways: Ordinary licence fee, Actual damage, Actual profit of the infringer. The intention is for fines to be aligned to the Adjustment of Fines Act (Act 101 of 1991). On Section
52(1)(b) it is suggested that any fine needs to take this into account. Section
52(1)(b) makes infringement of PBR a criminal offence and requires government to police and enforce these rights.
There is no agreement that the clause is in conflict with the Constitution. Section 22 of the Constitution provides that the practice of trade, occupation or profession may be regulated by law. It is not correct to believe that the provisions are in conflict with national and international law. The 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.
The National Prosecuting Authority (NPA) institutes prosecutions. Prosecutions would only be instituted if there were 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.
Sections 51(3) and 52(1) as proposed, the Department submits, are fundamentally flawed and out of kilter and in conflict with fundamental human and constitutional rights, national and international intellectual property legislation.
These Sections could result in the prosecution of poor sustenance farmers who, at first glance, appear to infringe PBR registrations (for example by selling farm-saved seed), but who do not have the financial resources to defend an action for infringement. This would result in these farmers potentially being guilty of an offence.
Clause 53: Jurisdiction of the Magistrate’s Courts
Section 53 gives the magistrate’s court jurisdiction. Given the complexity of PBR cases and the high fines and sentences, it is not suitable to limit jurisdiction to the magistrate’s court. The High Court should have jurisdiction. This clause does not propose that a magistrate’s court has exclusive jurisdiction in respect of hearing of offences under the Bill if the NPA decides to institute a prosecution in respect of an offence in a magistrate court. The clause empowers that magistrate’s courts impose any penalty provided for in the Bill in respect of the offence even if it exceeds the jurisdiction of a magistrate’s court in respect of punishments contemplated in Section 92 of the Magistrate’s Courts Act. The NPA may decide to institute a prosecution in respect of an offence under the Bill in the regional court or a high court if the circumstances dictate.
The word person should be amended to person(s) to allow for plurality
‘Expose for sale’; this is extremely wide and can introduce grounds for a legal dispute. Also includes exchange or otherwise dispose of to any person in any manner; this is too wide and this phrase should be followed with ‘excluding testing purposes’
Clause 15: Varieties in respect of which plant breeders’ rights may be granted.
The current wording of Section 15(4) means that an applicant’s own PBR application in another country would invalidate an application in SA, if the 1-year Convention deadline were missed.
17: Priority and re-dating of applications
The meaning and requirements of Section 17(3) are unclear. This sub-section needs to be reviewed.
Clause 23: Denomination of a variety
The wording of section 22(1) should be redrafted to “An applicant for the grant of a plant breeder’s right must propose a denomination complying with the prescribed requirements and which shall be examined by the Registrar and approved if the denomination so complies.” The current wording does not reflect the true intention of the legislature.
Clause 30: payment of annual fees
The grace period should be extended to 6 months as in the current Act. If payment is due in March would the cases filed under the old act still fall under 1 January? If not, what provision for protection would be provided between January and March once the Act comes to force?
Permissive wording used in relation to late payments falling within the mentioned three months post annuity deadline should instead be changed to mandatory wording. Alternative uses of the word “shall” and accompanying phrase “in order to” should disabuse any reader of any apparent ambiguity in the wording of the section in so far as it may disagree with the intent of the legislature this section.
Clause 35: Application for compulsory licences
This clause provides some guidance as to the intention of the phrases ‘unreasonably refuses’, reasonable requirements of the public, ‘available at reasonable prices consistent with the holder of a plant breeder’s right deriving a reasonable advantage there from’.
Clause 33: Remedies in respect of infringement of plant breeder’s right
Add Section 33(5) that allows PBR holder or licence holder to demand that the plant breeders’ right remove the infringing plants within 30 days or such reasonable longer periods as the courts may determine.
Section 46: Entering premises
Section 46(6) allows the Registrar to search any premises with consent from a PBR holder. This should be replaced with Section 24A(6) of the 1976 Act.
Clause 56: Transitional Provisions
Section 56(2)(b) appears to be in conflict with Section 56(2)(a) and the term “this Act” in Section 56(2)(b) should be replaced with the term “the 1976 Act”.
Section 31 of the 1976 Act has been omitted. Section 31 of the 1976 Act may become important for food security or in the public interest in the future and it is submitted that this section should be included in the Bill.
Instead of giving in to pressure to join UPOV, our government should recognise the rights of farmers and put measures in place to enhance and conserve genetic diversity in their field. South Africa has been a member of UPOV since 1977. The rights to seed saving and exchange should be addressed in clause 10 of the Bill. DAFF has programmes on conservation and sustainable use of Plant Genetic Resources for Food and Agriculture.
The development of a National Plan for the conservation and sustainable use of Plant Genetic Resources for Food and Agriculture is the strategic output of DAFF for 2016/17.
The International Treaty on Plant Genetic Resources in Food and Agriculture (ITPGRFA)
In Africa, only Botswana, the Gambia, Mozambique, Somalia and South Africa have not signed. This means that South Africa does not recognise Farmers’ Rights, a situation that must be urgently addressed. South Africa has been a keen participant in the process leading up to the adoption of the Treaty. There has been national consultation on South Africa acceding to the Treaty
UPOV 1978 and UPOV 1991.
South Africa is, currently, a member of UPOV 1978 and is under no obligation to join UPOV 1991. UPOV 1991 is problematic in that it restricts re-use of protected seed.
Clause 10 of the Bill is meant to provide for flexibility regarding farmers’ practices to re-use seed. There are stakeholders who support South Africa joining UPOV 1991. National consultations on South Africa’s accession to UPOV 1991 have not yet been initiated.
Article 27.3.b of TRIPS obliges members to provide for the protection of plant varieties either by patents or by an effective sui generis system or by combination of both.
SA as a member of WTO is not obliged to join either UPOV Conventions (1978 or 1991).
SA would still be in compliance with its obligations to WTO/TRIPS. It adopted a sui generis regime of PBRs that fully recognises the importance of heterogenous and adaptability of plant varieties to changing conditions.
UPOV is the recognized sui generis system that gives confidence to breeders to release their varieties into territories that have UPOV membership. Membership comprises 72 countries. There are four African countries: Kenya, Morocco, Tunisia and South Africa, and there is one African organisation, namely the African Intellectual Property Organization (OAPI) with UPOV membership.
Ms A Steyn (DA), on Page 9, Section7 (2) and (3), suggested that “magistrate” be deleted, as it was agreed on the previous meeting. Then on Page 8, Section 5, she asked if it were possible to have both a fine and an imprisonment.
Adv Barry Beukes said it is possible to have both a fine and an imprisonment. The magistrate would be given grounds to consider that.
Mr M Filtane (UDM), on Page 8, Section 5, line 3, suggested that “intent” be replaced with “consequences” because it is difficult to prove”intent”. On Page 11, Paragraph 2 sections 2 and 3, how do we make a reference to something that has been repealed?
Adv Barry Beukes, on the issue of making a reference to something already repealed, indicated the legal team would look into the matter.
Ms Steyn, on the issue of transitional arrangements, wanted to find out if the magistrate would still hand over a license to the licensing officer.
Adv Barry Beukes stated that Section 11B (3) makes provisions for the licensing officer to continue processing and issuing license for any application made before the enactment of the Act.
Ms Steyn pointed out that the Committee had not seen the Regulations that Section 7 is talking about because regulations could be chopped and changed.
The Chairperson explained that the issue of regulations did not belong to the Committee but to the Minister.
Mr Filtane asked, if the Department is under the assumption of not filing an application to the Concourt, would the Concourt consider the old application or assume the Department would file a new one.
Dr Songabe indicated that when the Minister made a request of a 12 months extension, the Concourt indicated it wanted to hear from other parties involved first, hence the granting of the two months waiting period. But after hearing that the NSPCA is not going to file an application, the Department then approached the Concourt. It is up to the Concourt to decide on whether it grants the request for 12 months.
An official from the Department indicated the Office of the State Attorney advised to file opposing arguments in the absence of the NSPCA. The Department was still awaiting response from the Concourt.
Ms D Carter (COPE) asked if the Concourt would grant the Department an extension by 12 months, and wanted to know if there was any indication of when the judge would deliver the ruling.
Ms Phumelele Ngema, Parliamentary Legal Advisor, stated that Concourt indicated that the Minister of DAFF must file written arguments of not more than 20 pages in order to assist the court in the ruling.
Ms Carter said this would give the NSPCA a chance to file an application. Therefore, the Minister must file written arguments.
An official from the Department assured the Committee that the NSPCA would not file opposing arguments.
Response by DAFF to public hearings
Mr T Ramokhoase (ANC) asked if reasonable inputs from stakeholders had been fairly considered.
Ms Netnou-Nkoana explained they had taken on board comments by stakeholders. The issues that stakeholders raised but could not go through would be raised and considered in the second round of hearings. Not all comments were considered, especially those that were not in line with the Bill.
Ms Steyn asked how many stakeholders the Department dealt with and if some of their considerations were taken into account. She also asked for clarity on the international treaty and import conditions.
Ms Netnou-Nkoana, regarding comments by stakeholders, explained they had one on one meetings with certain stakeholders. The comments were inter-related and were grouped. There were sections that need to be re-looked and redrafted.
Pertaining to the International Treaty on Plant Genetic Resources in Food and Agriculture (ITPGRFA), it is comprehensive to the rights of farmers. It has been in force for a number of years. It has been used for inclusion in the commercial material. The interest is more on the rights of the farmers. The Department is watching how developments are flowing to the provider countries.
On the issue of import conditions, some SADEC countries are not clear and specific on this area. The Department needs to ensure that all bottlenecks are removed in the countries SA trades with so as to make trade easy. Many countries within SADEC have registered in the programme that deals with issues of trade, SADEC Harmonisation Programme.
Mr Ramokhoase wanted clarity on UPOV 78/91.
Ms Netnou-Nkoana stated that SA has signed UPOV 91 but it was never ratified. When a country moves from 78 to 91, it does not have to go through the process. The UPOV process covers SA because she has to deposit to 91.
The meeting was adjourned.