Prior to the public submissions, the Department of Science and Technology (DST) gave a historical context to the IKS Bill which history dates back to the late 1990s. The IKS Bill attempts to address issues of redress and transformation within the nation, it is also a powerful tool for national identity and social cohesion.
Prof Roy Jobson, Associate Professor of Pharmacology at Sefako Makgatho Health Sciences University made his submission which addressed patents in traditional African medicine, referring to the Medicines and Related Substances Act. He asked how the safety, quality and therapeutic efficacy of African traditional medicines could be determined in the public interest. He ended his submission by speaking about accreditation. He asked if a conventional “western” medical practitioner could also be accredited as an indigenous knowledge practitioner and if an indigenous knowledge practitioner could obtain a “practice number” from the Board of Health Funders?
Prof Ben Erik Van Wyk, Research Professor, University of Johannesburg, in his submission suggested that that there were constraints with regards to the publication of knowledge from indigenous studies. He referred to clause 4(e) of the Bill and clause 28(2), noting the need to address this.
Prof Sadulla Karjiker, Chair: Intellectual Property Law, University of Stellenbosch, canvassed for the scrapping of the Intellectual Property Law Amendment Act. He stressed that this legislation if passed would hurt South Africa and South Africans. In his opinion, indigenous knowledge and intellectual property were two different things and there was no way indigenous knowledge could fit into intellectual property.
The Congress of Traditional Leaders of South Africa stressed the need for providing technical support. It suggested there must be a benchmark for determining ownership of a product.
Department of Science and Technology (DST) historical context of the IKS Bill
Dr Yonah Seleti, DST Chief Director: Science Missions, gave a brief historical context of the IKS Bill. The historical genesis of the IKS policy goes back to the late 1990s and began in Parliament within the Arts, Culture, Science and Technology Portfolio Committees. This process went through national consultation and terminated into the IKS Policy of 2004. Before 2004, there was also an attempt by means of a private member bill to obtain the protection of the IKS. The IKS Bill has four driving agendas which is protection, promotion, development and management. To a large extent, the historical context which the IKS Bill addresses is that of redress and transformation within the nation. IKS can be used as a very powerful tool for national identity and social cohesion. The mainstreaming of indigenous knowledge is being addressed by the IKS Bill to deal with the marginalisation of indigenous knowledge. It also recognises indigenous knowledge in the face of globalisation. The DST has been actively involved in research and development of innovative ideas which promote indigenous knowledge. The IKS Bill provides a mechanism for alignment of government policies, streamlining of legislation, the coordination and facilitation of access to indigenous knowledge. The IKS legislation seeks to create a balance between various interests in promoting economic and moral rights and create a balance between the public interest and the individual right. It also speaks to constitutional rights giving effect to human rights in the Bill of Rights.
Submission by Prof Jobson: Associate Professor of Pharmacology
Prof Roy Jobson, Associate Professor of Pharmacology at Sefako Makgatho Health Sciences, in talking about patents, raised concerns on how the IKS Bill intended to cater for that provision. Making reference to the Traditional Health Practitioners Act of 2007 which excludes the professional activities of a person practising any of the professions contemplated in the Pharmacy Act, 1974, the Health Professions Act, 1974, the Nursing Act, 1974, the Allied Health Professions Act, 1982, or the Dental Technicians Act, 1979. He asked “traditional philosophy” as referenced by the Traditional Health Practitioners Act and queried how the IKS Bill addresses that Act. Defining "traditional philosophy" and making reference to the Indigenous Knowledge Systems Bill [Bill 6—2016] which defines an “indigenous knowledge practitioner” as a person who is accredited and certified as an indigenous knowledge practitioner to render a service utilising indigenous knowledge; he asked for a clarification on the part which speaks to rendering a service.
He also referred to Chapter 4 of the IKS Bill which speaks to the protection of indigenous knowledge, under clause 9(1) which states that “ This Act protects indigenous knowledge, whether it is cultural or functional in nature, or both, including medical, agricultural and scientific practices, in the manner and to the extent provided for in clause 11”. Commenting on the term “medical” he was of the opinion the term may not convey the meaning intended. On the eligibility criteria for protection as specified in the IKS Bill, he pointed out the similarity of this clause of the Bill to the Traditional Health Practitioners Act, 2007 which clearly defined “traditional philosophy”. Clause 29(1) of the IKS Bill, 2016 makes provision for transnational arrangements. Prof Jobson pointed out that this was already included in the Allied Health Professions Act 63 of 1982. The Medicines and Related Substances Act, 1965 (Act No. 101 of 1965) defines “medicine” and “complementary medicine” but makes no mention of African traditional medicine. The Pharmacy Act and Allied Health Practitioners Act make it mandatory for a dispensing licence in order to be able to dispense medicines to the public. Based on this he asked what the legal constraints would be on accredited indigenous knowledge practitioners in terms of “formulating, compounding, dispensing” remedies / medicines? He referred again to the Medicines and Related Substances Act, which states that “In determining whether or not the registration or availability of a medicine is in the public interest, regard shall be had only to the safety, quality and therapeutic efficacy thereof in relation to its effect on the health of human(s) or any animal, as the case may be.” He asked how the safety, quality and therapeutic efficacy of African Traditional Medicines could be determined in the public interest.
He ended his submission by speaking about accreditation. He asked if a conventional “western” medical practitioner could also be accredited as an indigenous knowledge practitioner and if an indigenous knowledge practitioner could obtain a “practice number” from the Board of Health Funders.
Mr N Paulsen (EFF) asked about the expert knowledge of Prof Jobson with regards to African traditional medicine. He also asked if the Medicines and Related Substances Act defined African traditional medicine.
Mr N Koornhof (ANC) referring to paragraph 3 of the written submission of Prof Jobson, asked him if he could put the concerns he raised into writing and send it to the Committee.
In his response, Prof Jobson noted there was no definition for African traditional medicine in the Medicine Act and his knowledge of African traditional medicine stemmed from his interaction with the committee which was set up to look into African tradition medicine. Responding to Mr Koornhof, he promised to put his concerns into writing.
Submission by Prof Van Wyk, Research Professor, University of Johannesburg
Prof Ben Erik Van Wyk noted to the Committee that he is well versed in indigenous knowledge systems. His research deals mainly with botanical science and the aim of his research in plant knowledge is not to collect secrets from anyone but aimed at publishing new data and new insights and not for commercial purposes. His Papers are published regularly on scientific breakthroughs in botanical studies. Information is carefully recorded and scientific studies carried out within the best internationally allowed practices, therefore one way of promoting indigenous knowledge is through the publication of scientific data. The quality of the plant publications from South Africa are of very high standard. In his career he has written about 19 books and published in many international journals which cover plant knowledge including the medicinal plants. Talking about the IKS Bill, he suggested that that there were constraints with regards to the publication of knowledge from indigenous studies. He referred to clause 4(e) of the Bill and clause 28(2).
Mr N Paulsen asked him the source of funding for his research; he wanted to know if he gets money from pharmaceutical companies for his research.
Prof Van Wyk noted that his researching funding came primarily from the National Research Fund (NRF). He stated that there would be a conflict of interest if pharmaceutical companies fund research publications because the results of such publication would be tailored to the needs of those companies.
Ms A Tuck (ANC) asked about the three dead people he referred to in his submission. She also asked about the books and publications he referred to.
Prof Van Wyk replied that the publications can be found in the Springbok public library and open access of the University of Johannesburg.
Mr N Koornhof asked Prof Van Wyk if he sees any conflict with the existing laws covering intellectual property and the Bill.
Prof Van Wyk replied that it is very difficult to say at the moment if there is a conflict between the existing laws and the Bill but there is certainly a duplication of functions and it is important to harmonise these laws within the Bill because a lot of frustrations arise as a result of regulatory uncertainty.
Submission by Prof Karjiker, Chair Intellectual Property Law, University of Stellenbosch
Prof Sadulla Karjiker stated the need for the harmonisation of the Intellectual Property Laws Amendment Act and the proposed IKS Bill. He was of the opinion that the Intellectual Property Laws Amendment should be scrapped. The issue of protection of indigenous knowledge is a difficult one. He stressed the difference between indigenous knowledge and intellectual property and maintained that indigenous knowledge is not intellectual property as currently understood. Intellectual property protection, thus, at its core has a paradox. Ultimately, one wanted more of the relevant works - such as copyright and patents – to be freely available for anyone to use, that is, to form part of the public domain. However, such objective can only be realised by providing such works protection for a limited period, so as to incentivise their creation. In other words, by providing intellectual property protection, the size of the public domain is increased. Intellectual property rights are only permissible to the extent that they incentivise creation and enlarge the public domain.
He explained that protection of indigenous knowledge seeks to protect long-established elements or practices. There is no concern about incentivising creation, but rather with preserving something, something which may have existed for a century, or more. Furthermore, but for the legislation which is being proposed, it is, and has been, part of the public domain - free for others to use. It should, therefore, come as no surprise that the kinds of things which are sought to protect as indigenous knowledge do not satisfy the requirements for the existing forms of intellectual property law protection. In the absence of international consensus on what is covered by protection for indigenous knowledge, it is important not to stifle creativity in South Africa, which is a crucial driver to economic growth. It is important to be mindful of the effect of indigenous knowledge legislation on the producers (mostly small businesses) of goods which may inadvertently be affected by legislation. The proposed legislation would mean that persons elsewhere have greater freedoms in adapting indigenous works than their South African counterparts. This, arguably, disadvantages South Africans, as it prevents them from competing on an equal basis.
Mr Koornhof asked why Prof Karjiker was so much opposed to the Intellectual Property Laws Amendment Act. He also wanted to know if repealing the law will not harm intellectual property in South Africa.
Prof Karjiker responded by naming the existing laws which govern intellectual property in South Africa. He reiterated his position that the current legislation seeks to force indigenous knowledge into the intellectual property bracket but clearly the two of them just do not fit each other.
Congress of Traditional Leaders of South Africa (Contralesa)
Mr Ntuthuko Khuzwayo did not provide a formal written submission but this would be sent later to the Committee. He made a submission which centred on the collaboration of Contralesa and the South African Qualifications Authority. He stressed the need for providing technical support; hence a framework is being created for developing and monitoring the acquisition of traditional knowledge in South Africa. Talking about intellectual property, he suggested there must be a benchmark for determining ownership of a product. He also talked about the place of the traditional institutions in communities and provinces.
The meeting was adjourned.