Plant Improvement and Plant Breeders’ Rights Bills [B8 & 11 – 2015]: further deliberations

Agriculture, Land Reform and Rural Development

06 September 2016
Chairperson: Ms M Semenya (ANC)
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Meeting Summary

The Department of Agriculture, Forestry and Fisheries (DAFF) took the Portfolio Committee through the rest of the Plant Improvement Bill’s clauses -- Clause 60 onwards -- in order to complete the deliberation and amending processes. The Parliamentary Legal Adviser (PLA) assisted with the reading of the bill, and each revised clause was agreed individually after discussion. The DAFF then proceeded to read and deliberate on the Plant Breeders’ Rights Bill, for its finalisation. The Chairperson informed the Committee that according to the calendar of Parliament, the two bills would not be able to be introduced in the caucus during the current term.

In the Plant Improvement Bill, clauses that had been previously redrafted (60 and 59) were the subject of Member’s attention due to the consequential effects they had on posterior referencing throughout the Bill. Issues of delegating responsibilities were addressed in Clause 62. Regarding the possible misuse of authorisation by officials, concerns were raised in Clause 64. Finally, previous clauses were redefined in terms of the suggested changes by Members. The PLA noted the effective changes, and the Plant Improvement Bill deliberations were then concluded.

Regarding the Plant Breeders’ Rights Bill, initial concerns about the name of the Department in the Bill were addressed, given that only agriculture had been mentioned, as it was understood as a separate sector. Concerns about access to sensitive information were raised by Members and also the Deputy Minister (Clauses 5 and 43), to which the PLA responded by providing the legal background on the right to access public information and confidentiality. According this provision, the clause aimed to ensure that no information was unreasonably withheld to any interested party. Also in this regard, the use of the legal term “any person” created discussion about who would have legitimate access to such information; the PLA then explained that the term referred only to interested parties. New discussion arose about the alignment to the IPO 1991 Conventions, and they led to a broader discussion about standards, the transformation agenda, the protection of indigenous varieties, and defending South Africa’s interests. In terms of Clause 26, when asked about the effect of testing and standards on small growers, the Registrar informed the Committee that generally South Africa conducted its own testing. South Africa allowed international testing only when the country did not possess certain varieties.

Meeting report

The Chairperson informed Members that the meeting would last until the afternoon as it was the goal of the Department to finalise the deliberation of both Bills during the session.

The Chairperson welcomed the Minister and the Deputy Minister.

Plant Improvement Bill
Mr Nathi Mjenxane, Parliamentary Legal Adviser (PLA), continued with the reading of the last set of clauses of the Plant Improvement Bill (Clause 60 onwards).

Clause 60
Mr H Kruger (DA) wondered if it was necessary for the bill to subscribe to the court in terms of penalties, or if it was possible to mention that the person convicted with an offence in this Act would be liable to be prosecuted.

The PLA clarified that according to convention, when a bill provided offences it must also provide penalties. However the current chapter served only as guidance, and the Court would act at its discretion.

Mr Kruger said that the referencing to Clause 59 within the present clause was incorrect, given the changes that modified Clause 59; these changes had been proposed during the previous session of the Committee.

The Chairperson agreed with Mr Kruger, and reminded Members of the adopted changes.

Mr P Maloyi (ANC) contributed by clarifying that the entire Clause 59 had been agreed to be redrafted.

Clause 62
The Chairperson inquired about the delegating of responsibilities from the Minister to the Director General (DG).

The PLA clarified that according to the clause, the Minister may delegate to anyone else, with the exception of Clause 58. The reference to the DG was in terms of representation.
Clause 64
Mr Kruger argued that section 64b was open to misuse by officials. He proposed changing it to state that the process of authorisation should be before any agreement. This would be in order to prevent officials from acting and asking for written permission afterwards.

The Chairperson clarified that the Member was speaking about the “transitional provision” within the clause, meaning that this would happen before the act could be implemented.

Clauses for reconsideration by legal team
The Chairperson asked the PLA to cover the aspects that Members had requested to be reconsidered during the previous meeting, specifically within Clause 58 and Clauses 51 to 53.

Regarding Clause 58, the PLA said the legal advisers felt quite strongly that the section, as provided currently, needed to be modified in its wording and most sections could be eliminated. Clause 58 should provide only the principles of the delegated authorities by the Committee to the Minister to make regulations, in order to implement the act.

The PLA said that after consulting different advisers in the Department, it had been decided to come up with a clause which stated that the Minister “must” make regulations, replacing the existent “may” as suggested by Members. This would be presented within the next Amendment List.

Mr Kruger reminded the Committee that there were other concerns about these regulations.

The Chairperson ruled him out of order, as it had been agreed that the regulations were not to be discussed during the meeting.

The PLA summed up that Clauses 51 to 53 developed the role of the Advisory Committee for issues within the Plant Improvement Bill. During the previous meeting, the Committee had felt that the DAFF could use its internal capacity without employing external people who would need to be remunerated (Clause 52 (10)). The PLA explained how the Department’s legal advisers, directed by the Committee, had come to the conclusion that Clause 52 (10) would be revised. Although the Advisory Committee was considered necessary by the DAFF, it would not be subject to remuneration.

Plant Breeders’ Rights Bill: clause by clause reading
Before the start of deliberations, Mr Kruger asked if the bill would to be discussed during the next official, and last, caucus of the term. The Chairperson responded that according to the calendar of Parliament, the two bills would not be able to be introduced in caucus during the current term.

The PLA took the Portfolio Committee through the Plant Breeders’ Rights Bill, clause by clause.

Mr Maloyi suggested that in the definition of the Department and the Minister, the full name of the Department of Agriculture, Forestry and Fishery should be included

Mr Kruger asked if the change of name would create a problem in the future if the name of the Department was to be changed. He suggested that the Bill should read: “Department responsible for Agriculture”.

Mr Maloyi argued that if the name of the Department were changed, the Bill would be subject to amendment, but the current Bill could not mention a department that did not exist.

Mr N Paulsen (EFF) supported Mr Kruger, given that new governments could separate the subfields of the current Department. If there was reference to only agriculture in the Bill, it would not affect the bill if future organizational changes were made.

Mr S Mncwabe (NFP) said that Members were differing only because they were considering the Department at different stages in time.

Ms Kanthi Nagiah, Chief Director: Legal Services, DAFF, said that the reason for including only agriculture was because it was the only relevant sector which the current Bill affected. However, it could be changed without causing any future problems, given that when ministerial names were adapted, legislation would fall into the applicable department at the time.

Mr N Capa (ANC) said that leaving forestry unmentioned would be an error, because the Plant Improvement Bill affected this sector.

The name of the department in the clause was changed.

Clause 1
Ms Z Jongbloed (DA) inquired about the Registrar. She asked if there would be one Registrar for each bill (Plant Improvement Bill and Plant Breeders’ Rights Bill), or if they were planned to be separated.

Dr Julian Jaftha, Chief Director: Plant Production and Health, made it clear that currently the DAFF had established two different Registrars for each bill, and therefore the responsibilities and work wages were separated. 

Clause 4
The PLA explained that as the rights given to citizens could not be weighted, this aspect within the clause should be amended.

Clause 5
The Deputy Minister asked the legal team about the meaning of the concept “any person” within the clause.

Dr Jaftha said that the concept referred to interested parties in the process.

The PLA provided legal background on the right to access to public information. According to this provision, the clause aimed to ensure that no information was unreasonably withheld from any interested party.

The Director General added that the problem was to refer to “any” person in particular, understanding that confidentiality was then broken.

Mr C Mathale (ANC) suggested that the clause could remain, but should refer to Clause 1 in order to avoid misinterpretation.

Ms Nagiah said that the Department would redraft the clause and refer to the Promotion of Access to Information Act for matters of publicity and access.

The Deputy Minister said he was satisfied, but suggested that it would be better to refer to the limitations of the Information Act.

Mr L Ntshayisa (AIC) proposed changing the use of “may” to “must” within the clause.

The PLA asked Members for guidance, as the confidentiality issue would be relevant only when “any person” requested the administration to have access to information.

The Chairperson expressed concern about the use of the expression in legal terms. She supported the argument of referring to the Information Act.

Mr Mathale said that the inspection part of the clause was clear, so the Committee should address only the rephrasing of the concept.

Mr Mncwabe suggested that not only the issue of “any person,” but also the use of “any particular,” should be rephrased.

The State Legal Adviser suggested referring to the Registrar in order to clarify what type of information was to be accessed.

The Registrar explained that the information that could be accessed was published on a regular basis, and it would not contain sensitive information such as names, denominations or the date of application.

Clause 7
Ms Z Jongbloed expressed discomfort with the wording, as it could be misinterpreted. She suggested that authorisation must be requested, and also that a time frame for authorisations should be given.

The PLA referred to Clause 16, which covered this concern.

Clause 8
Mr Capa asked about the specific timing provided in the Clause.

Dr Jaftha explained that after the period, the varieties became public goods.

The Chairperson asked if there was a link to intellectual property rights.

The Registrar explained that it was in a way linked to property rights, due to the similarity of the times.

Mr Mncwabe inquired about the adequacy of the time frames provided, as well as the lack of mention of the possible reviewing of rights holders.

Dr Jaftha said that the existing laws were very much aligned with the new IPO 1991 Convention (this information had been provided during previous presentations, as well as the process to follow in order to obtain the new accreditation). At the moment, the process of fully aligning with the new convention had been started by the DAFF. He also clarified that in terms of the duration of the right being too long, one should not think that a very exclusive position had been awarded to growers: the right holder normally provided licenses to use for commercial purposes, creating his/her own market.

The Chairperson requested the Department to provide the information previously distributed regarding the IPO 1991 Convention, as she considered the issues affecting small growers covered in the Convention important.

The Deputy Minister contended that by passing the current bill, the DAFF came closer to alignment with the abovementioned regulation.

Ms Nagiah corrected the Chairperson by stating that the IPO 1991 Convention did not consider the status of small growers, and that it was the Plant Breeders’ Rights Bill that was correcting it, specifically in section 10.

Mr Mathale suggested continuing with the passing of the bill, due to time constraints.

Clause 10
The Chairperson said that the current bill should not be contrary to the principles from existing legislation coming from the Department of Science and Technology.

Dr Jaftha referred to Clause 16, where it was specified that if the variety was subject to any other legislation, the applicant must provide proof.

Clause 11 (b)
Mr Kruger asked why the clause specified one particular exception.

The Registrar explained that the exception was defined for consumption purposes.

The Deputy Minister asked the Registrar how this process would be monitored.

The Registrar explained that this would be monitored by the Registrars’ offices in the two countries when exporting and importing products. However, it was impossible to control how the varieties would be used once they were inside the country.

Clause 12
Ms Nagiah said that this provision would not be applicable when an agreement between two parties was achieved.

The Deputy Minister expressed concern about carrying on a joint venture according to the provision, because in his understanding if one developer wished to finish the contractual agreement, the remaining party could paralyse the process.

Ms Nagiah made clear that the current provisions stood to protect the “small man.” The only case where the provision would not be applied was when agreement existed among the parties.

Clause 15
Mr Kruger questioned the exclusion of fungi and algae when they had an important share of the South African market.

The Registrar said that international standards focused on higher plants. If fungi were to be considered in South Africa, what had to be looked at was the distinction among mushrooms.

Mr Kruger understood the Registrar’s explanation but suggested eliminating the mentioned exclusion from the clause.

Mr Capa asked if the fact that fungi and algae were excluded meant that they were not subject to protection.

The Registrar elaborated that the section showed what the subject matter of the protection was. Therefore, until the clause was reconsidered with Mr Kruger’s concerns, the provision did not apply.

Clause 18
Mr Kruger mentioned the problems with red tape, which could affect small growers due to the influence of bigger competitors during the application process.

Clause 21
Mr Kruger was worried about the way in which the Registrar would handle objections, because it could be a very long process. He suggested it would be appropriate to establish a year or six months’ time frame for resolution of objections.

The Registrar referred to Clause 29 in order to include a time frame, given that this clause dealt with objections.

Clause 26
Mr Kruger observed that in Clause 26 (1), tests and trials could be very costly for small breeders. He asked who would carry this cost.

Dr Jaftha responded that tests and trial costs were assumed by the official testing authority, which was the DAFF.

Mr Capa asked if the Department would use international testing stations.

The Registrar responded that generally South Africa conducted its own testing. South Africa allowed international testing only when the country did not possess certain varieties.

Dr Jaftha  added that even when testing was conducted outside the country, it did not affect the local growers, as the standards were the same internationally. He also clarified that when establishing international standards, South Africa did contribute with its range of varieties within a species, and in that way the distinctiveness of local varieties was recognised.

Clause 27
Mr Maloyi asked if the use of “must” was less appropriate than “may” to express the apparent option of the breeders to follow the clause.

Ms Nagiah said that there was no apparent problem to accepting the change, although the clause was giving the worst case scenario, and the desired outcome in that case.

The Content Adviser explained that the use of “may” would weaken the clause as, in fact, when reaching a worst case scenario, many processes would have been carried out up till that point.

Clause 30
The Registrar said that the revival of the right was not provided for. However, it was provided in policies from other departments and it would be taking into account.

Mr M Filtane (UDM) argued that the bill, as an independent piece of legislation, should provide the information and not assume that the interested parties would know about the other provisions.

The PLA explained that the obligation of the breeder was to pay for his/her right for twelve months. That was the only obligation the breeder must meet.

Clause 31
Mr Filtane pointed out that the concept “normal business hours” might be confusing, as business hours were different for individual sectors and businesses.

Mr Maloyi commented that public service hours (08h00 to 16h00) were considered “normal business hours”

The Chairperson expected that these hours would have to be according to public service regulations.

Clause 35
Mr Filtane asked if the days included in the clause were assumed to be business days, or if they included weekends.

The State Legal Adviser informed that this was provided for in the Interpretation Act.

Mr Filtane demanded more light on the matter, given that understanding of the legislation could vary if it was oriented to the administration or to the public, and the Department should be specific.

The State Legal Adviser concluded that the clause referred to working days.

Clause 36
Mr Maloyi referred to section 2a, expressing his confusion about the reference to other advisors besides the Advisory Committee.

Dr Jaftha agreed that it was not necessary to have additional advisors.

The Chairperson asked if this meant having two advisory boards -- one for each bill.

Dr Jaftha clarified that only one advisory board would deal with issues from both bills. The Minister would appoint only one advisory committee.

Mr Mathale suggested adding a clause where this issue could be clarified in both bills, showing the  interlinks.

Clause 37
Mr Kruger expressed confusion about the use of “expiry” and “duration”, arguing that they were very close in meaning and were causing duplication.

Dr Jaftha said that the purpose was to include all possible terminations under one clause. This was a case of emphasizing, she added.

Clause 38
Mr Filtane pointed out that the issues arising from using “may” and “must” occurred in the current case as well. The cancellation of a right was not an obligation for the authority in this case, due to the use of “may”.

The State Legal Adviser argued that the use of “may” was linked to giving the user an opportunity to bring the required documentation before cancellation.

Ms Nagiah referred to Clause 30, where the breeder was given the possibility of paying at various points, and thus, going forward to Clause 38, it was the Registrar who was being given the option to act after the previous stages.

Mr Filtane contested that “may” gave empowerment, but that failure to pay, on its own, did not necessarily mean sanction. He said that legal action must be specified when a breeder went beyond the given period to comply, otherwise it would cause legal vagueness in court. He asked the legal team to apply their minds to the clause.

Clause 43
Mr Filtane considered that the term “interest” was too open, given the many types of interest that could arise.

Ms Nagiah explained the difficulty of limiting the number of people who could be involved in an appeal. Because this was government, almost anybody had the right to get involved, and it was then the responsibility of the appeal board to assess whether a party had a genuine interest in the matter.

Mr Mathale contended that the bill was restrictive in terms of what issues could be the subject of an appeal.

Clause 44 to 48
This group of clauses was agreed, as they were identical to those passed in the Plant Improvement Bill, and any amendments would translate into changes to the current bill.

Clause 49
Mr Capa wondered why the current clause named the Registrar alone.

Mr Filtane referred to sub-section 4, which concerned warrants. This could be problematic, as cultural differences may affect what was considered offensive. In 7b, he pointed out, disabled individuals were not included and this should be redrafted.

Ms Jongbloed pointed to the fact that assumptions were made regarding the documents held in offices and subject to inspection, thinking that they were always related to the topic. She suggested that it would be prudent to include a mention of documents that were strictly relevant.

Dr Jaftha explained that Clause 42 of the Plant Improvement Bill dealt with matters of inspection. The legal team then committed to consider the comments and add them to the clause which was overlapped and was being revised.

Clause 53
Mr Filtane asked if the disclosure of information and its restrictions were applicable only to authorities, or to any person.

The Chief Director of the Department explained that in any judicial process, confidentiality was desired in order not to jeopardise the process.

The PLA added that the Information Act addressed the access to information in both private and public hands.

Mr Filtane gave the example of the role of witnesses in providing or sharing information if it was not prejudicial. He said one had to be very cautious when limiting individual and civil rights.

Mr Capa emphasised that the information that was mentioned in the clause concerned only that obtained during the performance of one’s duties or functions.

Clause 54
Mr Maloyi suggested taking the same route as the Plant Improvement Bill in terms of regulation.

Ms Z Jongbloed noted that there was no time constraint for the publishing of regulations.

Clause 55
Mr Filtane argued that 55 (2b) needed to specify “to” whom the offence would be considered.

The PLA responded that the sub-clause related to 2a, and therefore did not need to specify.

The Chief Director of the Department clarified that this aspect would not make a procedural difference, given that the court would consider the case within the framework of the Act.

Mr Mathale argued that according to the explanations provided, point 2b was then not necessary.

The PLA identified the difference between both clauses’ content, and the relevance of preserving the two.

Mr Maloyi reminded Members of his concern that consideration of cases of misbehaviour had not been addressed.

The Registrar clarified that the bill provided the Registrar with the capacity to cancel a plant breeder’s right.

Mr Capa questioned if it was possible to unify both bills.

Dr Jaftha said that although certain overlaps existed in terms of property and exploitation, the rights that were being dealt with were of different nature.

The Chairperson asked if there was any reason why the DAFF had not acceded to the International Treaty for Plant Generic Resources, given that it covered the “right to food” which affected South Africa broadly.

Dr Jaftha summarized that the treaty focused on food security and quality in a multilateral system. This system was a key component because once one had access to it and was requested to be a provider, one had to accept without conditions. He argued that countries were complaining about the real access to the resources that they were supposed to be receiving, therefore creating serious doubt about the achievements of the treaty.

The Chairperson commented on the small percentage of varieties that South Africa possessed, with most of the property ownership being international. She wondered if this was due to a problem of capacity in the country.

Dr Jaftha commented that the Chairperson was correct about the issue of capacity. Other countries had been able to bring new varieties to the market more quickly.

Mr Kruger asked Dr Jaftha if this issue was affecting South Africa’s exports, as in the past products had been taken out of the country and then sold back to South Africa at much more expensive prices.

The Deputy Minister expressed concern about the same issue, and the lack of information available for the Department to pursue national interests.

The Registrar said that for indigenous plants South Africa possessed the National Environmental Management: Biodiversity Act (NEMBA). The DAFF had aligned to the already developed NEMBA legislation. The Registrar had been working on tracking South Africa’s national indigenous plants.

The DG explained that the concerns were around the protection of the existing species, more than the discovering of new varieties. One of the biggest problems was the lack of a transformational agenda. Most concerns around standards and matters of importance were from outside the country.

Mr Mathale added that the ultimate goal of policy was to contribute to the transformation process of the agricultural sector in South Africa, in order to enhance entry for the previously disadvantaged.

The Chairperson agreed with both, and defended the position of South Africa in matching international standards and the internal policies for inclusivity.

The Deputy Minister raised concerns about the equality of those international standards across countries, in terms of application and country considerations.

The DG explained that, from his experience, the rhetoric and articulation of positions was what really shaped those international standards.

Finalisation of the Bills
The Chairperson summarized that the next stage was for the Department to include suggested changes and provide Members with a final draft for revision.

The minutes of 5 September 2016 were approved

The meeting was adjourned


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