Performing Animals Protection Amendment Bill [B9-2015]: deliberations & finalisation; Plant Improvement [B8-2015] & Plant Breeders’ Rights Bills [B11-2015]: Department response to Legal Advisor concerns

Agriculture, Forestry and Fisheries

04 September 2015
Chairperson: Ms M Semenya (ANC)
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Meeting Summary

The Department of Agriculture, Forestry and Fisheries (DAFF) took the Portfolio Committee through each clause on which the Parliamentary Legal Advisers had commented, both for the Plant Improvement Bill and Plant Breeders’ Rights Bills.

Comments had been made at the public submissions and the Parliamentary Legal Advisers had also made some suggestions. DAFF focused on clauses 10(2)(a), 11, 15, 19, 21, 52, 51(3) read with 52(1), and general comments. Requests were made for exclusions from clause 10, but DAFF agreed with the Parliamentary Legal Advisers that there did not appear to be any undue restrictions and all exceptions would be provided for in regulations. On clause 11, there was a suggestion that the clause should make it clear that an owner could charge per plant, plus a production royalty and fees, but DAFF clarified that the protection and limitation would not extend to varieties already in the market, to ensure that breeders would not collect royalties more than once, and that sales without consent of the breeder would not affect the right. Clause 15 dealt with varieties of recent creation. The Parliamentary Legal Advisers and DAFF were in agreement that this clause was in line with the UPOV international law. In regard to clause 19, dealing with rejection of applications, a suggestion had been made that section 11(g) and (i) of the 1976 Act should be retained, but DAFF clarified that this clause would provide for conditions that may lead to rejection of an application, and the Registrar would need to fully brief the applicant. Clause 21 dealt with amendment of an application, and DAFF, after considering the comment of the Parliamentary Legal Advisers, agreed that more clarity was needed, and would be redrafted to make it clear that if an amendment affected the description of the variety, the filing date would be the date on which the registrar accepted the amendment, which would have to be re-published. Clause 52 deal with offences and penalties, and DAFF clarified that its intention was to bring the fines into alignment with the Adjustment of Fines Act. It would be discussing with the Office of the Chief State Law Adviser whether there was a need to consult with the Minister of Justice. It was suggested that clauses 51(3) and 52(1) were flawed and in conflict with human and constitutional rights as well as intellectual property legislation, but DAFF and the Parliamentary Legal Advisers were satisfied that the Minister could set threshhold penalties. In relation to the criminalisation in clause 52, DAFF pointed out that it remained within the jurisdiction of the National Prosecuting Authority to decide whether to institute a prosecution, and created a statutory offence. The fears that further policing capacity would be required were unfounded. In relation to definitions, there had been suggestions on the word “breeder” and “person” but DAFF was satisfied that no amendments were needed. It did agree with the Parliamentary Legal Advisers' suggestions on “sell”, to incorporate wording “a disposal for some form of consideration”. DAFF and the Parliamentary Legal Advisers agreed that there did not appear to be a need to replace clause 46(6), dealing with entering of premises, with the wording used in section 24A(6) of the current Act, as the search entry process set out was lawful and constitutional. Similarly, DAFF did not think there was a need to retain section 31 of the current Act for the purposes of ensuring food security or public interest, since this would be covered by the Expropriation Bill currently making its way through Parliament.

DAFF then briefed the Committee on the Plant Improvement Bill. DAFF was in agreement with the Parliamentary Legal Advisers on the evaluation of a plant for value, cultivation and use, but suggested that  “investigate” in clauses 38(2) and 38(8) should be replaced with “evaluate/evaluation”. In relation to clause 43, concerns were expressed that destroying imported goods without compensation could amount to unfair deprivation, in the absence of a qualifier about harm to the Republic. DAFF pointed out that the clause did give the importer options to destroy without compensation or remove and re-import. DAFF also agreed with the Parliamentary Legal Advisers that the importer would not always, but may be different from buyer and seller. DAFF and the Parliamentary Legal Adviser agreed, in relation to clause 44, that it was important to ensure the same standards for products sent to other countries. Clause 47 dealt with appeals, and DAFF agreed with the Parliamentary Legal Advisers that greater consistency would be achieved on remuneration of the members of the Appeal Board if decisions were to be made after consultation with the Minister of Finance, but suggested a wording change. It would redraft the wording on the role of the Minister in line with the legal advisers' suggestions. Again, in clauses 48 and 49, remuneration of members of the Advisory Committee would be prescribed after consultation with the Minister of Finance”.

Members asked for clarity on the position of South Africa in relation to UPOV and why these Bills were drawn to be compliant with UPOV 1991 if South Africa had not yet acceded formally to that. They were interested in what consultation processes had been carried out, and the Department agreed to brief the Committee fully on the UPOV and to send a list of interactions. Members asked if the DAFF was referring to developed or undeveloped plants, and if plant exports contributed to the economy, and asked for assurance that the Bills were compliant with international standards and obligations.
 

Meeting report

Plant Breeders’ Rights Bill : Departmental response to Parliamentary Legal Advisers' concerns
Ms Noluthando Netnou-Nkoana, Registrar for Plant Breeders’ Rights: Department of Agriculture, Forestry and Fisheries (DAFF) took the Committee through the clauses of the Plant Breeders Rights Bill (PBRB or the Bill) on which the Parliamentary Legal Advisers had previously made comments.

Clause 10(2)(a)
There had been a request that flowers and flowers fruit be specifically excluded. The Department of Agriculture, Forestry and Fisheries (DAFF) envisaged that all exceptions would be covered in the Regulations after extensive consultations with all stakeholders. The intention was for the Minister to prescribe conditions for payment of royalties, but not the amounts. Categories of farmers, crops, and uses would be defined in the Regulations, after extensive consultations with stakeholders. DAFF was in agreement with comments from the Parliamentary Legal Advisers that there was no restriction or problem created by clause 10  (2)(a).

Clause 11
This clause had to do with the exhaustion of plant breeders’ rights. The comment had been made that the 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. DAFF said this was relevant in relation to the notion of “sold or otherwise marketed by the breeder or with his consent”. The right would not be exhausted when material of the variety had been sold or otherwise marketed without the breeders’ consent. DAFF was in agreement with the comments of the Parliamentary Legal Advisers that the protection and limitation in clause 11 did not extend to varieties that are already in the market. The exhaustion clause aimed to prevent breeders from collecting royalties more than once.

Clause 15
This clause spoke about varieties in respect of which plant breeders’ rights may be granted (varieties of recent creation). DAFF stated that this Bill offered protection, as stipulated in UPOV Convention of 1991 Art 6 (2) (giving international protection for new varieties of plants), in respect of any variety of all plant genera and species. DAFF was in agreement with comments from the Parliamentary Legal Advisers that this Bill was fully compliant with the international law.

Clause 19
This clause dealt with the rejection of an application. It was submitted that sections 11 (g) and (i) of the 1976 Act should be retained, and not be omitted. The Parliamentary Legal Advisers wanted to know how the application of a plant breeder’s right would be rejected. In response, DAFF stated that clause 19(1) provided for conditions that may lead to an application being rejected. Clause 19(2) provided for the registrar to inform the applicant of the rejection and state the reasons.

Clause 21
This clause dealt with the amendment of an application. The comment had been made that the requirement that the description of the variety may not be amended would be too onerous. DAFF responded that if an amendment of an application affected the description of the variety, it could create uncertainty around the true identity of the variety. The Parliamentary Legal Advisers indicated that DAFF was not providing clarity in that it was not offering a way forward, and this is a technical and policy concern. DAFF was suggesting that this clause now be redrafted to indicate that if an amendment would affect the description of the variety, the filing date of the application shall be the date the registrar accepted the amendment, and the registrar must re-publish the application in amended form.

Clause 52
This dealt with offences and penalties. Comment had been made about the minimum and maximum monetary value of the fine. The response from DAFF was that the intention was for the fines to be aligned to the Adjustment of Fines Act (Act 101 of 1991). The Parliamentary Legal Advisers commented that the wording section 51(3) raised a concern of whether the Minister of Justice needed to be consulted, in view of the fact that this was a justice issue. DAFF, in response, stated that it had scheduled a meeting with the Office of the Chief State Law Adviser, and would be in a position to respond comprehensively during the September deliberations.

Clause 51(3) read with 52(1)
This clause continued to deal with offences and penalties. A submission had been made to the effect that clauses 51(3) and 52(1) were fundamentally flawed and in conflict with the fundamental human and constitutional rights, and national and international intellectual property legislation,. However, DAFF did not agree that this clause was in conflict with the Constitution, and also thought that it was not correct that the provisions were in conflict with the national and international laws. DAFF was in agreement with the comments from the Parliamentary Legal Advisers which stated that the Minister was legislatively empowered to set a threshold penalty for the relevant authority who would be convicting and sentencing.

Clause 52
This clause also dealt with offences and penalties. The comment had been made that clause 52(1)(b) made infringement of the Plant Breeders' rights a criminal offence and required government to police and enforce these rights. DAFF responded to this comment by pointing out that prosecutions were instituted by the National Prosecuting Authority. Prosecutions would only be instituted if there was sufficient evidence of an alleged offence. It further stated that the clause protected those breeders who may not be able to go the civil route, due to the expensive nature of civil cases. DAFF was in agreement with the opinion of the Parliamentary Legal Advisers that clause 52(1)(b) read with 52(1)(a) created a statutory offence. However, this offence required no further policing capacity, as suggested by the submission, and instead the contravention would easily be detected through appropriate administrative functions and taken through the prosecuting processes where necessary.

General Comments
Comments had been made on the definition of the word “breeder”. There had been a suggestion that the word “person” be amended to “person(s)” to allow for plurality. The Parliamentary Legal Advisers commented that according to drafting standards and the Interpretation Act, a plural form equally refers to singular phrasing. DAFF agreed not to amend the definition.

In regard to the definition of “sell”, it was commented that “expose for sale” was extremely wide and could introduce grounds for a legal dispute. This also included “exchange or otherwise dispose of to any person in any manner” as it was also viewed as too wide. It was suggested that this phrase should be followed with “excluding testing purposes”. The Parliamentary Legal Advisers suggested the insertion of “a disposal for some form of consideration”. DAFF agreed to amend the definition as suggested.

Clause 46
This clause covered the entering of premises, and comment had been made that clause 46(6), which allows the Registrar to search any premises with consent from a Plant Breeder’s Right holder, should be replaced with the wording used in section 24A(6) of the 1976 Act. The comments from the Parliamentary Legal Advisers maintained that these two provisions conveyed the same message. They enabled entry into premises without a warrant but with the consent of the owner or authorised person. This was lawful and constitutional. DAFF indicated that the two provisions were slightly different, since the wording used in clause 46(6) provided for consent from the Plant Breeder’s Right holder, while Section 24(6) wording seemed to provide for consent from the person who was competent to allow entry at the place to be searched.

Retention of sections of 1976 Act
It was further commented that Section 31 of the 1976 Act should be retained as it may become important for food security or in the public interest in the future. DAFF agreed with the comments from the Parliamentary Legal Advisers that section 31 of the current Act amounted to expropriation. The Expropriation Bill currently before Parliament was encompassing such intentions, so there was no need to repeat it in this Bill.

Plant Improvement Bill Presentation
Dr Botlhe Modisane, Chief Director: Animal Production and Health: DAFF, took the Committee through the clauses of the Plant Improvement Bill (PIB or the Bill).

Clause 38
Dr Modisane noted that this clause spoke about the evaluation of a variety of plant for value, cultivation and use. DAFF was in agreement with the comments from the Parliamentary Legal Advisers that this clause was aimed at clarifying doubts and for the benefit of the public, because it would enable the Registrar to intervene and make an evaluation that determined the value of that variety, based on the expertise and knowledge that could be used comparatively to reach a fair value and to know if the variety is harmful. DAFF further suggested that the word “investigate” used in clauses 38(2) and 38(8) should be replaced with “evaluate/evaluation” (as appropriate) because it was not an investigation but an evaluation of the variety.

Clause 43
This clause dealt with the import of plants and propagating material. The comment of the Parliamentary Legal Advisers noted that there had been concerns expressed about destroying imported goods without compensation, which could amount to unfair deprivation since there was presently no qualifier whether such material would be harmful to the Republic. DAFF indicated that clause 43(8)(a) stated, “taking into account the preference of importer”. Therefore, it was giving a choice to the importer either to agree to destruction without compensation or to remove (re-export) the material at the expense of the importer.

The Parliamentary Legal Advisers further indicated that the submission seemed to be premised on the view that the importer would be different from the buyer or the seller. Clause 43 seemed to be phrased to cater for all such eventualities and determined where the responsibility for compliance lay. DAFF was in agreement with these comments and indicated that the importer was mostly the seller, but may be different from the seller and buyer.

Clause 44
This clause concerned the export of plants and propagating material. DAFF agreed with the comments of the Parliamentary Legal Advisers that the same standards must be ensured for the products that the Republic sent out to other countries, so as to boost economic relations and also give the country a reputable status and international standing.

Clause 47
This clause spoke about the appeal against the decision of the Registrar or designated authority. The Parliamentary Legal Advisers commented that the prescriptions around the remuneration of the members of the Appeal Board could have consistency if the decisions were to be made after consultation with the Minister of Finance, in line with clause 47(2)(b). DAFF was in agreement with these comments but suggested an alternative wording on 47(2)(b):  “The remuneration of a member of the Board must be prescribed after consultation with the Minister of Finance”.

The Parliamentary Legal Advisers had further commented that the role of the Minister during the Clause 47 appeals must be clear. The Parliamentary Legal Advisers had proposed that Clause 47 be redrafted. DAFF was in agreement with their proposed wording and suggested that it be adopted

Clauses 48 and 49
These clauses dealt with the Advisory Committee. The Parliamentary Legal Advisers had pointed out that the main point for consideration was in respect of clause 49(10), and had to do with whether the remuneration of the Advisory Committee members should not be prescribed after consultation with the Minister of Finance. DAFF agreed with the alternative wording on 49(10), “The remuneration of a member of the Advisory Committee must be prescribed after consultation with the Minister of Finance”.

Discussion
Ms A Steyn (DA) maintained that she still was not clear about the comment in relation to UPOV, but asked if the Bills would change substantially if South Africa were to decide to to with the UPOV 1991. On the issue of public participation, she wanted to establish if it was normal to be dealing with a matter after five or seven years, when things had really changed on the ground.

Dr Julian Japhta, Chief Director: Plant Products and Health: DAFF, said that DAFF would take time to brief the Committee fully on the differences between the UPOV 1978 and 1991, and also would cover the importance of accession and issues of compliance. South Africa had not acceded formally to UPOV 1991.

Ms Netnou-Nkoana reported that interaction with stakeholders had been continuous. In many cases, the DAFF had conducted workshops and held meetings on a one-on-one basis with different organisations. She said a list of communities and organisations with whom DAFF had been interacting could be sent to the Committee, and the Department would prepare a written account in relation to the question.

Dr Julian Japhta added that in 2013 and 2015 consultations were done with farmers, and in 2014 the Department dealt with the Competition Commission.

Mr L Ntshayisa (AIC) asked if the varieties the Department was talking of were developed or under-developed plants. He further wanted to know if plant exportation did contribute to the economy.

Ms Netnou-Nkoana confirmed that the DAFF was referring to developed varieties, because they must be distinct, uniform, and stable. Speaking to the  economic value of plant exports, she confirmed that the exportation of plants contributed enormously to the GDP and economy, and said that she would send statistics on this through to the Committee.

Ms Z Jongbloed (DA) enquired if South Africa had considered the international standards when the DAFF drafted the Bills, pointing out that South Africa was a signatory to many international agreements.

Dr Japhta indicated that compliance had been observed, to make sure everything was in line with international standards and the Office of the Chief State Law Adviser dealt with the certification.

Ms Jongbloed asked why the Bills had been aligned with UPOV 1991 when South Africa had not yet acceded to it

Dr Japhta explained that South Africa was a member of UPOV and had signed UPOV 1991 to indicate its intention to be bound, but there had not been formal accession to the agreement as yet. He commented that there seemed to be an impression that these two bills would offer South Africa the chance to join UPOV, whereas in fact South Africa had been with UPOV since 1978. The UPOV system ensured that farmers had access to varieties. UPOV 1991 restricted farmers on use of varieties, although these two bills would enhance and make it better for farmers to access new and better varieties.

Ms Phumelele Ngema, Parliamentary Law Adviser, advised Members on the definition of “sell” in the Plant Breeders’ Rights Bill The definition that she had proposed was drawn from an acceptable legal definition used in the courts, and she had also considered the dictionary meaning, consulting and contrasting the use of both definitions. She said the Committee was at liberty to deliberate on this matter.

The meeting was adjourned.

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