Plant Improvement Bill [B8B-2015] &Plant Breeders’ Rights Bill [B11B-2015]: negotiating mandates; Committee Study Tour Report

NCOP Land and Mineral Resources

28 November 2017
Chairperson: Mr O Sefako (ANC, North West)
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Meeting Summary

The main agenda item for this meeting was a briefing by the Department of Agriculture, Forestry and Fisheries (DAFF) on comments originating from the provincial mandates on the Plant Improvement and Plant Breeders Bills. This was followed by the Committee voting on the provincial amendments proposed for both Bills.

A Western Cape Member, on a point of order, said that the Free State had no representation in the Committee, and as the Committee did not operate on the rule of alternate members, this should be reflected in the minutes.

As this was the second meeting on the same Bills, the consideration of the remainder of provincial amendments on the Plant Improvement Bill and Plant Breeders’ Bills respectively were discussed and voted upon by the Committee. The Members also approved the Committee Study Tour report, the Committee’s annual report, and the minutes of 14 November.

The Chairperson thanked the Members for their hard work and support during the year. He was very grateful for the Committee working together with the National Council of Provinces (NCOP) and their legal support team on the section 76 Bill, which was the first of its kind for the Committee.

 

Meeting report

Plant Improvement Bill

The Chairperson said the Committee would commence deliberations on the negotiating mandates with input from Mpumalanga province, where it had stopped at the last meeting.

Mpumalanga recommendations

Mr Thabo Ramashala, Director: Plant Products, Department of Agriculture, Forestry and Fisheries (DAFF), said that Mpumalanga province supported the Bill, but had suggested the following amendments (DAFF’s responses in italics):

Definitions

  • “Registrar” to read as follows: “Registrar” means the person contemplated in section 3(1) and must have regional offices in the provinces.

DAFF’s response: Not supported by DAFF, because additional regional offices for the Registrar would lead to duplication of infrastructure and resources across the country. Greater consistency was achieved through the current centralised system.

 

  • The definition of “sell” to be amended by deleting part (b) of it

 

DAFF response: The removal of (b), which refers to “exchange,” would provide a loophole which may be exploited by transgressors, thus leading to unintended consequences.

Ms C Labuschagne (DA, Western Cape), on a point of order, said that the Free State had no representation on the Committee, and the Committee did not operate on the rules of alternate members. It should be reflected in the minutes as such.

Members voted on the proposed amendments by Mpumalanga.

First amendment

Provinces that supported were KZN and Limpopo, while North West and the Eastern Cape (EC) did not support.

Second amendment

This was supported by KZN and Limpopo. North West and Eastern Cape did not support while Western Cape abstained. Both proposals were therefore not agreed to.

The Committee Secretary reminded the Committee that the second definition that was not agreed to by Committee Members today had previously been agreed to in the Free State amendment, although it was the Members’ prerogative to vote per province and per mandate. 

Northern Cape response

The Northern Cape Legislature supported the Bill, in terms of correspondence dated 20 October 2017. They indicated that the negotiating mandate submitted in May 2017 should remain unchanged.

The DAFF response was that the Parliamentary Legal Advisors and the Committee should provide guidance as to how to deal with this matter, whereby the permanent delegate of the province indicated that they do not have a view on this Bill.

North West response

The province supported the Bill without any proposed amendments.

Plant Breeders Rights Bill

Ms C Labuschagne (DA, Western Cape) said she was confused by the process unfolding. She believed that the Committee should first vote on Western Cape negotiating mandate, because the negotiating mandate ensured that no vote could be taken unless the amendments were dealt with. It was only in the final mandate that the Bill could be supported or not. So the clause that warranted being amended or not amended had first be voted on. On the final mandate, it could be decided not to take the final consideration and only then could the Western Cape give her a mandate indicating whether they supported the Bill or not.

The Committee Secretary said that the mandate of the Eastern Cape said that the province rejected the Bill and mandated the delegate of the province to vote against the Bill. There was no mention of amendments, but rather a vote against the Bill based on given reasons. So there were no proposed amendments.

As for the Western Cape, the Standing Committee on Economic Opportunity, Tourism and Agriculture reported that it had conferred on the Western Cape permanent delegate in the NCOP, not to support the Bill, with the attached Committee report. This was basically the same as the mandate of the Eastern Cape, because it gave reasons why it did not support the Bill. The Mandating Procedures Act states that if a province supports amendments, it must state so. Those amendments must be in a draft format, such as insert, delete, etc, which could then be voted on. What was stated on both mandates, from the Eastern Cape and Western Cape, made no reference to the proposed amendments. This was why, at the last Committee meeting, a decision had been taken to read these two mandates and the responses to them in order to get them out of the way and deal with the provinces which had made proposed amendments.

 

Eastern Cape’s recommendations

The Eastern Cape’s comment was that the definition of “sell” was too wide, and small-scale farmers who had been sharing seeds would be forced to use money to trade, sell or buy seed to feed their families. The Bill limited seed sharing and reduced the rights of seed owners.

The DAFF response was that “sell” was used in the following sections:

Novelty Period - Clause 15(2) (a): One year in South Africa, or four to six years in any other country.

A breeder can not apply for intellectual Property (IP) if the material is ‘old.’

Scope of a plant breeder’s right - Clause 7(1) (a): Authorisation required for the sale or any other form of marketing of the protected variety. Clause 10 provides for exceptions to the scope of a plant breeder’s right -- private and non-commercial (e.g. subsistence farmers); experimental purposes; breeding of other varieties; a farmer who uses the protected variety in accordance with subsection (2).

Seed Sharing

The current Plant Breeders’ Rights Act, 1976 section 23(6)(f) allows farmers to use seed for propagating purposes on land occupied by him, and uses harvested material on that land provided that harvested material from the replanted material shall not be used for the purposes of propagation by any other person other than that farmer. This current Act is problematic, because it prohibits the farmers to share seeds.

Comments received from stakeholders were that the section prohibits any seed exchange of protected varieties among farmers. Farmers were not defined, it would have a negative effect on some industries – like wheat – and royalties were a factor. Crops were not defined, and consideration had not been given issues like the practice of seed saving, vegetatively propagated fruit crops, yields per hectare, and hybrids.

 

The Plant Breeders Rights Bill ensures in Clause 10(2) (a), that the Minister must prescribe the categories of farmers, the categories of plants, their uses, where applicable, conditions for the payment of royalties, and labelling requirements.

The regulations required consultations with stakeholders, state law advisers and the Portfolio Committee.

Another comment from the Eastern Cape was that protected varieties in clause 7 amounted to uncompetitive behaviour.

DAFF’s response: The protected varieties are the focus of the Bill.

The Eastern Cape proposed that Clause 7(2) (b) must be deleted.

DAFF’s comment: The harvested material must have been obtained through the unauthorised use of propagating material. Unauthorised use would not refer to acts covered by clause 10 -- exceptions covering subsistence farmers.

The Bill should be modified, changing ‘denomination’ to ‘description.’

DAFF’s response: ‘Denomination’: name of the variety. ‘Description’: describes the morphological characteristics of the variety, e.g. size of the plant, colour of flowers, shape of leaves, etc.

 

Western Cape recommendations

The province made two recommendations, with no specific clauses.

  • There should be separate legislation that speaks to and addresses the concerns and interests of informal, small-scale and part-time farmers.

DAFF’s response: The Department interprets this comment to mean that there must be separate Plant Breeders’ Rights legislation for the mentioned categories of farmers. However, if this is incorrect, the provinces may wish to guide on what the scope of the proposed legislation would be.

The current Bill provides for exceptions to ensure that traditional seed practices of smallholder farmers can continue. In terms of traditional varieties, the department has developed a national plan for the conservation and sustainable use of plant genetic resources.

 

  • The entire contents of the Bill should be revised.

 

DAFF’s response: The current amendments aim to strengthen the existing regulatory framework. Thus, the comment to revise the Bill in its entirety has implications for existing legislation.

DAFF requires more detailed guidance from the province on which areas to revise.

Free State recommendations

The province made the following recommendations;

 

  • Definition of sell: The Bill criminalises the exchange of farm-saved seed from protected varieties.

DAFF response: As explained under Eastern Cape.

Regarding this clause, Members voted as follows:

Gauteng and Eastern Cape - Abstain

KZN and Limpopo - Support

North West and Western Cape - Do not support

 

  • Define Non-commercial as ‘a person not making or attempting to make a profit from the activity contemplated in section 7(1), commercial has a corresponding meaning.

 

DAFF’s response: Commercial and Non-commercial. This has never been defined in our law. In terms of interpretation, words must be given their ordinary grammatical meaning, unless to do so would result in absurdity. The ordinary meaning is clear.

 

Regarding this clause, Members voted as follows:

Gauteng and Eastern Cape - Abstain

KZN and Limpopo - Support

North West and Western Cape - Do not support

 

  • Private and non-commercial: In order to benefit emerging farmers, ‘and’ must be substituted by ‘or’ to allow private use of seeds, whether commercial or non-commercial.

 

DAFF’s response: Emerging farmers will be covered by exceptions in clause 10(1) (d) read with 10(2).

Members voted:

Gauteng - Abstain

KZN and Limpopo - Support

North West, Western Cape and Eastern Cape - Do not support

 

  • Insert (b) The minister shall, by notice in the Gazette and on such conditions as he or she may specify in the notice, exempt any type of business from the provisions of section 7(1) of the Act.

 

DAFF’s response: 7(1) provides for scope of a plant breeders’ right granted to breeders, Exceptions to this scope are provided in clause 10(2).

Members voted:

Gauteng - Abstain

KZN and Limpopo - Support

North West, Western Cape and Eastern Cape - Do not support

Gauteng recommendations

  • Definition of ‘sell’ be amended by deleting paragraph (b) thereof

DAFF response: as explained under Eastern Cape.

Members voted

KZN - Support

Limpopo - Abstain

Gauteng, North West, Western Cape and Eastern Cape - Do not support.

 

  • Definition of ‘persons’ be amended to include natural and juristic persons

DAFF’s response: Defined in the Law of Interpretation.

Members voted:

Gauteng, KZN, Limpopo, North West and Eastern Cape - Support

Western Cape - Do not support

 

  • Clause 30(3) should be amended to extend the grace period from three to six months

DAFF’s response: In agreement, and shall be amended accordingly.

Members voted:

Gauteng, KZN, Limpopo, North West and Eastern Cape - Support

Western Cape - Do not support

 

  • Clause 41: Be amended to include a sub-clause making provision for the staying of criminal proceedings against an infringer, pending an internal process

DAFF’s response: Clause 41 Appeals deals with appeals against the decision of the Registrar -- an internal process. Criminal proceedings: A stay can not be effected automatically.

Members voted:

Gauteng, KZN, Limpopo and Western Cape - Support

North West and Eastern Cape - Do not support

 

  • Clause 42: Be amended by the rectification of the reference to section 41 instead of 43(1)

DAFF’s response: In agreement, and shall be amended accordingly.

All provinces voted in support.

 

  • Clause 55(1): Be amended to address the concern of imprisonment raised by various stakeholders

DAFF’s response: Prosecutions are instituted by the National Prosecuting Authority. Prosecutions will only be instituted if there is 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. The Performers Protection Act, 1967; Trade Marks Act, 1993, Canadian Plant Breeders’ Rights Act, 1990 and the Australian Plant Breeders’ Rights Act 1994 have similar provisions.

Members vote;

Gauteng, KZN, Limpopo, North West and Eastern Cape = Support

Western Cape = Do not support

 

  • Clause 59(3) Insertion of a new subsection under section 59(3) to deal with the issue of regulating new applications made after the commencement date.

DAFF’s response: New applications received after the commencement would be dealt with under the new Act.

Members voted:

Gauteng, KZN and Limpopo - Support

North West, Western Cape and Eastern Cape - Do not support

 

KZN recommendations

  • Clause 1: Definition of ‘sell’ be amended by deleting paragraph (b) thereof.

DAFF’s response: As explained under EC response

Members voted:

KZN and Limpopo = Support

Gauteng, North West, Western Cape and Eastern Cape - Do not support


 

  • Clause 7(2) be deleted

DAFF response: As explained under EC response

Members voted:

KZN and Limpopo = Support

Gauteng, North West, Western Cape and Eastern Cape - Do not support


 

  • Clause 10 (b) (a) private ‘and’ non commercial’: retain private ‘or’ non-commercial. Properly defined to allow re-use by a farmer, including exchange.

DAFF’s response: As explained under Free State response. Addressed by clause 10(2) with regulations (see EC response).

Members voted:

KZN -Support

Gauteng and Limpopo - Abstain

North West, Western Cape and Eastern Cape - Do not support


 

  • Clause 10(2): Inadequate as it does not expressly recognise the rights of farmers to reuse and exchange farm-saved seed of the protected variety.

DAFF’s response: As explained under EC response on seed sharing.

Members voted:

KZN -Support

Gauteng and Limpopo - Abstain

North West, Western Cape and Eastern Cape - Do not support


 

  • Clause 55(1)(b): Royalties/ compensation can be claimed in addition to section 55(1)(b)

DAFF’s response: Covered by clause 55(1)(c)

Members vote;

Gauteng - Abstain

KZN - Support

Limpopo, North West, Western Cape and Eastern Cape - Do not support


 

Limpopo recommendations

  • Clause 7(1): The Bill should have specific provision for the protection of traditional seed breeders and local farmers.

DAFF’s response: Traditional seed breeders are covered by the Act. Local farmers can access protected varieties. Subsistence farmers are also covered under exemptions.

Members voted:

Gauteng, KZN, Limpopo, Western Cape and Eastern Cape - Support

North West - Do not support


 

  • Clause 55(10): The Bill must make provision for the prevention of hi-jacking of breeds or stealing trace by other farmers and producers.

DAFF’s response: Covered by clause 32: Infringement of plant breeder’s right.

Members voted:

Gauteng, KZN, Limpopo and Eastern Cape - Support

North West and Western Cape - Do not support


 

  • -Clause 55(2) (e): Registered seed breeders must be held accountable for the performance of their seed or varieties when planted as determined according to clause 26(1) on distinctness, uniformity and stability (DUS) tests.

DAFF’s response: DUS covered by clause 31: Maintenance of propagating material read with Clause 38: cancellation of plant breeder’s right.

Members voted:

Gauteng and Eastern Cape - Abstain

KZN and Limpopo - Support

North West and Western Cape - Do not support

 

  • Clause 55 (3) (a) (b) (c) and (d): Need to specify the adequate Rand value amount of fine and percentage of royalties because as it is, it might cause a challenge when implementing or enforcing penalties to offenders.

DAFF’s response: The intention is for fines to be aligned to the Adjustment of Fines Act (Act 101 of 1991).

All Members voted in support.

Mpumalanga recommendations

  • “Registrar”: means the person contemplated in section 3 (1), and must have regional offices in the provinces

DAFF’s response: Additional regional offices would lead to duplication of infrastructure and resources across the country. Greater consistency is achieved through the current centralised system. Regional evaluations are undertaken as and when on-site trials are evaluated.

Members voted:

Gauteng, KZN, Limpopo, Western Cape and Eastern Cape - Support

North West - Do not support

Northern Cape and North West recommendations

The Committee Secretary said that submissions from both provinces stated: “No amendments proposed”. That would be correct in the case of North West, but it should be noted that the delegate from Northern Cape did not enter the province’s mandate at the first meeting where the mandates were read out, and although the province submitted a mandate, the permanent delegate from the province indicated that there was no mandate. As far as the Committee is concerned, Northern Cape did not submit a negotiating mandate. As a result, the comment of “no amendments proposed” applied only to North West province.

The Chairperson informed the Members that the process of the mandates was now concluded.

The Secretary told the members that with regards to process, as was done previously, the secretariat would now reflect in the minutes the provinces that had supported the proposed amendments and the vote per amendment -- after the Chairperson has given the necessary permission -- and send them to the provinces.

Mr Mooketsa Ramasodi, Acting Director General: DAFF, thanked the Committee for the meticulous way the two Bills had been handled. The Department would await any guidance from the Committee regarding decisions that would be taken. He apologised for the absence of the Minister and Deputy Minister.

Adoption of reports

The study tour report, the Committee’s 2017 annual report and the minutes of 14 November 2017 were all approved without amendments.

The Chairperson thanked the Committee for their hard work and support. He was very grateful to the Committee for working together with the NCOP and their legal support team on the section 76 Bill, which was the first of its kind to the Committee.

The meeting was adjourned. 

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