Plant Improvement Bill & Plant Breeders Bill: briefing by DAFF with Deputy Minister in attendance

NCOP Land and Mineral Resources

24 January 2017
Chairperson: Mr O Sefako (ANC, North West)
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Meeting Summary

The Committee was briefed by the Department of Agriculture, Forestry and Fisheries on the Plant Improvement Bill and the Plant Breeders’ Rights Bill. Members were provided with insight into the purpose and objectives of the Bills as well as detail on the processes involved in the development of the Bills. Shortcomings of existing legislation were also elaborated upon. The Committee was presented with an overview of the actual provisions of the Bills.

The Deputy Minister of Agriculture, Forestry and Fisheries noted that discussion over the lack of a transformational agenda of the proposed legislation had taken place. Going forward the issue would be taken on board. He nevertheless confirmed that all processes on the proposed legislation had been followed.

Members asked how the Bills intended to protect indigenous knowledge systems of persons found in rural areas. How would local rural persons be able to register their rights? The Department was asked whether it would be providing facilities in rural areas. Concern was raised that perhaps the Bills in their current forms would restrict small holding farms in favour of huge corporations. If intellectual property was an individual right the Department was asked whether it was the responsibility of the state to enforce the right of an individual. An additional concern was that the Bills were not sufficiently developmental in nature. New legislation should be developmental in nature. It should focus on women and youth. Previously disadvantaged persons should also be taken into consideration. The focus should not only be on long existing farms but also on emerging farmers. Members felt that not all farmers had been taken on board. Members were not convinced that the Department’s extension officers were assisting people. The Department was asked what the role of extension officers would be and how would they be capacitated. The Department was also asked what the current status on the regulation of nurseries in urban areas like Gauteng was. Members asked whether there would be one or two advisory boards for each of the Bills. The Department was informed about a tea co-operative in Pondoland that was in dire need of support.

Meeting report

The Department of Agriculture, Forestry and Fisheries briefed the Committee on the Plant Improvement Bill and the Plant Breeders’ Rights Bill.

The delegation from the Department of Agriculture, Forestry and Fisheries comprised of the Deputy Minister, Mr Bheki Cele, Mr Mooketsi Ramasodi, Deputy Director General, Mr Julien Jaftha, Chief Director: Plant Production and Health, Ms Noluthanda Netnou-Nkoana, Registrar: Plant Breeders’ Rights Act 1976 and Mr Thabo Ramashala Director of Plant Production. The Director General of the Department Mr Mzamo Mlengana had extended apologies for not being able to make the meeting.

Mr Jaftha informed the Committee that the Bills were linked to each other.

The Committee agreed that since the Bills were interconnected engagement on them would take place after both briefings had been concluded.

Briefing on the Plant Improvement Bill [B8B-2015]
Mr Ramashala undertook the briefing. At the outset the Committee was given a brief introduction on what plant improvement entailed. Plant improvement had been practiced for thousands of years. Many of the well known agricultural crops originated from domesticated varieties taken from the wild to produce food. Plant improvement was an important element of agricultural production, involving the development of improved varieties by means of breeding or selection.

The objectives of the Plant Improvement Bill were elaborated upon. The purpose of plant improvement legislation was to regulate the quality of plants and propagation material intended for cultivation and sale by inter alia the registration of types of business and premises involved in cultivation and sale of plants and propagation material and the national listing of plant varieties (registration of varieties).

The Committee was also provided with a schematic overview of the scope of the Bill. Insight was given into the processes involved in the development of the Bill. Shortcomings of existing legislation were elaborated upon. The current Plant Improvement Act (Act No.53 of 1976) dated back to 1976 and did not keep up with developments. The Committee was provided with an overview of the Bill itself:
Section 1: Definitions (interpretation of terminology)

Chapter 1: Application of the Bill
Section 2 - types of crops covered and how to extend to more crops. The Bill was only applicable on crops as declared. The Minister may extend upon application.

Chapter 2: Registrar and Administration
Sections 3-8: designation and functions of Registrar, discretionary powers, registers, inspection (viewing) of documents.

Chapter 3: Registration of Business and Premises
Sections 9-21: types of business requiring registration, application and registration procedure, requirements and termination.

Chapter 4: Conditions for sale
Sections 22-23: requirements for plants and propagating material, exemptions for certain plants and propagating material; detail to be contained in Regulations.

Chapter 5: National Varietal List
Sections 24-26: content, maintenance and publication of list and removal of varieties.

Chapter 6: Application for National Listing
Sections 27-32: varieties eligible for listing, procedure for application, documentation and objection.

Chapter 7: Variety Denominations
Sections 33-34: requirements for denominations, related to Chapter 6.

Chapter 8: Evaluation for Distinctness, Uniformity, Stability (DUS)
Sections 35-37: requirements for testing and decision making, related to Chapter 6.

Chapter 9: Value for Cultivation and Use (VCU)
Section 38: optional evaluation for value and use.

Chapter 10: Hearing of Objections
Section 39: procedure for hearings by Registrar.

Chapter 11: National Varietal List Journal
Section 40: journal and its content, related to Chapters 6 and 8.

Chapter 12: Inspections
Sections 41-42: procedures for inspections and inspection on grounds of warrant.

Chapter 13: Import and Export of Plants and Propagating Material
Sections 43-44: requirements and procedures.

Chapter 14: Schemes
Sections 45-46: types of schemes and procedures to establish.

Chapter 15: Appeals
Section 47: procedure for appeals against decisions by Registrar or authority of a scheme.

Chapter 16: Advisory Committee
Sections 48-51: purpose, composition and procedures.

Chapter 17: General Provisions
Sections 52-63: request for tests by other authorities, disclosure of information, regulations, offences and penalties, evidence, liability, delegations and repeal of laws.

On implementation, the National Authority that performed tests for variety listing was in place. This included two evaluation farms situated at Roodeplaat and Stellenbosch. The Official Seed Testing Station which was internationally accredited by the International Seed Testing Association was also in place at Roodeplaat. In time to come there would be amendment of Regulations was to give effect to the provisions (starting 2015/16).The appointment of an Advisory Body would follow the process of calling for nominations and appointment by the Minister. The systems for registration of premises were in place.
National inspection services were also in place for enforcement purposes.

Briefing on the Plant Breeders Bill [B11B-2015]
Ms Netnou-Nkoana undertook the briefing. Some background provided was that people breed new plant varieties for various reasons ie higher yields, better product quality, better resistance to plant pests and disease, etc. A plant breeder’s right (PBR) was a form of intellectual property right and was granted to breeders of newly bred plant varieties. At present plant breeders’ rights were protected under the Plant Breeders’ Rights Act, 1976 (Act No.15 of 1976). Major shortcomings in current legislation were elaborated upon. The Committee was provided with an overview of the PBR System. Exceptions to the scope of the PBR were also specified. Insight was given into the processes involved in the development of the Bill. The Committee was provided with an overview of the Bill itself:

Definitions
Chapter 1: Registrar and Register of Plant Breeders’ Rights

Section 2:  Designation and functions of Registrar
Section 3:  Exercise of discretionary powers by Registrar
Section 4:  Register of plant breeders’ rights
Section 5:  Register to be evidence
Section 6:  Inspection of documents submitted in connection with an application for plant breeder’s right

Chapter 2: Plant Breeder’s Right
Section 7:    Protection given to holder of plant breeder’s right
Section 9:    Period of sole right
Section 10:  Exceptions to plant breeder’s right
Section 11:  Exhaustion of plant breeder’s right
Section 12:  Joint holders of plant breeder’s right
Section 13: Transfer of plant breeder’s right
Section 14: State bound by plant breeder’s right

Chapter 3: Application for plant breeder’s right
Section 15:  Varieties in respect of which plant breeders’ rights may be granted
Section 16: Application for grant of plant breeder’s right
Section 17: Priority and redating of applications
Section 18: Provisional protection
Section 19: Rejection of application
Section 20: Acceptance and registration of application
Section 21: Amendment of application
Section 22: Objection to application for grant of plant breeder’s right

Chapter 4: Variety Denominations
Section 23: Denomination of variety
Section 24: Amendment of denomination
Section 25: Marking of labels and containers

Chapter 5: Examination of variety and Grant of Plant Breeders’ Rights
Section 26: Test & Trials
Section 27: Refusal to grant plant breeder’s right
Section 28: Grant of plant breeder’s right

Chapter 6: Hearing of objection
Section 29: Hearing of objection

Chapter 7: Obligations of holder of plant breeder’s right
Section 30: Payment of annual fees
Section 31: Maintenance of propagating material

Chapter 8: Enforcement of plant breeders’ rights
Section 32: Infringement of plant breeder’s right
Section 33: Remedies in respect of infringement of plant breeder’s right

Chapter 9: Licences
Section 34: Licences
Section 35: Application for a compulsory licence
Section 36: Hearing of application for and issue of compulsory license

Chapter 10: Termination of plant breeder’s right
Section 37: Expiry of plant breeder’s right
Section 38: Cancellation of plant breeder’s right
Section 39: Voluntary surrender of plant breeder’s right

Chapter 11: Plant Variety Journal
Section 40: Matters to be published in Plant Variety Journal

Chapter 12: Appeals
Section 41: Right to appeal
Section 42: Appeal board, composition and membership
Section 43: Investigation and consideration by the Board
Section 44: Consideration of appeal by Minister

Chapter 13: Advisory Committee
Section 45: Establishment of Advisory Committee
Section 46: Appointment of members of Advisory Committee and termination of membership
Section 47: Disclosure of interests of Advisory Committee
Section 48: Meetings of Advisory Committee

Chapter 14: General Provisions
Section 49: Entering premises for inspection, sampling and seizure of articles
Section 50: Request for test results by authority of another country
Section 51: Defect in form not to invalidate documents
Section 52: Correction of errors
Section 53: Disclosure of information
Section 54: Regulations
Section 55: Offences and penalties
Section 56: Jurisdiction of magistrate’s courts
Section 57: Prohibition of trafficking by officers
Section 58: Delegation
Section 50: Transitional provisions and savings
Section 57::Repeal of amendments
Section 58: Short title and commencement

On implementation the National Authority to manage the PBR system was in place and included two evaluation farms situated at Roodeplaat and Stellenbosch. In time to come there would be amendment of Regulations to give effect to the provisions (2017/18).The appointment of an Advisory Committee would follow the process of calling for nominations and appointment by the Minister. There was an awareness programme on the Plant Breeders’ Rights System

Deputy Minister Cele noted that discussion over the lack of a transformational agenda of the proposed legislation had taken place. Going forward the issue would be taken on board. He nevertheless confirmed that all processes on the proposed legislation had been followed.

Discussion
The Chairperson noted that on indigenous knowledge systems the interests of provinces had found expression with the legislation. The Department had assured members that the Bills would not be in conflict with other legislation. He asked how, for example, a grandmother or a young person who had done cross pollination on fruit or cross breeding on livestock would be protected. He emphasised that the issue of transformation would be addressed in relation to the Bills.

Mr Jaftha, on the issue of the Bills being in conflict with indigenous knowledge systems, said that the Department of Science and Technology had an Indigenous Knowledge Systems Bill. He added that the Plant Breeders Rights Bill dealt with a product. He assured the Committee that the Department did not disregard other pieces of legislation. The Department took into consideration whether indigenous knowledge systems were used in the development of variety. The Department had oversight over indigenous knowledge systems.    

Mr C Smit (DA, Limpopo) asked whether the Bills in their current forms would restrict small holding farms in favour of huge corporations. He said that intellectual property was an individual right. Was it the responsibility of the state to enforce the right of an individual?

Mr Jaftha said that when a product that had protection was released it was made available to small farms and to big companies. Small holding farms could reuse a protected variety.

Ms E Prins (ANC, Western Cape) hoped that the Bills would give rural persons the opportunity to have their indigenous knowledge registered and protected. She for example stated that the Cango Caves in Oudtshoorn had been discovered by a shepherd, a fact which had not been captured in history books. She asked how local rural people would be able to register themselves. Would the Department provide facilities in local areas?

Ms Nomawethu Gqiba, MPL, Eastern Cape Provincial Legislature, expressed concern that the two Bills were not developmental in nature. Rural people regarded agriculture as a way of life and subsistence. The benefit had for far too long only been for farms that had been long in existence. She emphasised that if the focus was on rural areas then jobs would be created. She was aware that the Bills did make mention of traditional authorities. The focus should be on emerging farmers too. She felt that not all farmers had been taken on board. Why had research only been done in Stellenbosch and Roodeplaat? New legislation should be developmental in nature. It should focus on women and the youth. Previously disadvantaged persons should be taken into consideration.

Mr Ramasodi said that on international agreements there was little scope. He noted that there was an agricultural action plan in place that aimed to improve and target women and youth. There were serious interventions on agriculture to assist with production and market access. The Bills were addressing the issue of market access. He felt that transformation would be dealt with in the regulations that accompanied the Bills.  

Mr Jaftha responded that research was not only being limited to Stellenbosch and Roodeplaat. These areas were selected in order to deal with applications that had been received in them. Stellenbosch was selected due to applications received in the Western Cape in relation to grape varieties. He assured members that the Department was not neglecting rural areas. The Department was evaluating whether a variety was compliant with what the breeder was claiming.

Mr L Gaehler (UDM, Eastern Cape) agreed with the sentiments expressed by Ms Gqiba. He felt that the legislation did not speak about the role of the farmer on plant breeding. He stressed that rural agriculture had not been addressed by the Bills. He felt that the Department’s extension officers did not assist people. What would the role of extension officers be? He asked how the Department intended to capacitate its extension officers. He asked why there was both a Registrar of Plant Improvement and a Registrar of Plant Breeders. Would it not have been more cost effective if the Registrars were placed in directorates within the Department?

Mr Ramashala, on the role of farmers, stated that the farmer was in control to what the legislation was proposing. Most of the newer varieties were selected by the farmers themselves. The farmer was at the centre of things. He noted that the two Bills did refer to aspects of storage of seed. It had to be in line with legislation. There was also no restriction of rights, as for own use permission was not needed. He explained that extension officers were crucial to keep farms in increasing production and to implement new technologies. The Department and provinces would ensure that extension officers had the necessary capacity.

Mr Mafika Siphiwe Mgcina, MPL, Gauteng Provincial Legislature, asked what the current status on the regulation of nurseries in urban areas like Gauteng was. He also asked whether there would be one or two advisory boards for each of the Bills.

Mr Ramasodi replied that the two Bills were separate and covered different competencies. Hence their advisory bodies needed to be separate. The same could be said about why separate Registrars were required. The Registrars were however already in place and were not introduced by the Bills.

Mr Ramashala stated that nurseries sold seedlings and hence had to be regulated. This was in terms of the Plant Improvement Bill. Nurseries had to be registered with the Department.

Ms Netnou-Nkoana added that the Department was the custodian of the National Gene Bank where traditional varieties were stored. On enforcement the legislation spoke to infringements and the remedies that went along with it. The right holder had to enforce his/her rights. They had to approach the competent courts.

Ms Gqiba informed the Department that there was a tea co-operative in Pondoland which required their support.

The Chairperson asked the Department how it could support the co-operative.

Deputy Minister Cele responded that the Minister had visited the tea co-operative. Steps were being taken going forward. It was unfortunate that for the last six months workers at the co-operative had not received payment. The Department was looking into the matter. He hoped that the Department had covered all the issues raised by members and that the Bills would become laws soon. Even if things were covered in regulations there still needed to be enforcement.   

The meeting was adjourned.



 

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