Protection, Promotion, Development and Management of Indigenous Knowledge Bill [B6B-2016]: Department of Science and Technology briefing

Meeting report

Indigenous Knowledge Bill: Background

Dr Thomas Auf der Heyde, Deputy Director General (DDG): Research Development, Department of Science and Technology (DST), said indigenous knowledge was an area of great strength and pride in South Africa, and the Department had invested a lot of time and effort in trying to promote and derive benefits from it.

The work of the DST went back to the knowledge systems policy which had been approved by the Cabinet in 2004. As a result, the DST had established the National Indigenous Knowledge Systems Office (NIKSO), which was a unit within the Department from where the work on indigenous knowledge had been taking place. In August 2016 a joint meeting had been held between the Select Committee for Communications and Public Enterprises, and the Portfolio Committee for Science and Technology, where an overview had been provided of their indigenous knowledge work.  

The government had realised that it was essential to move beyond the policy as a framework for the work they had been doing on indigenous knowledge systems. It had become clear there was a need for a legislative instrument to enable the Department to give effect to all the requirements and expectations of the policy that had been approved by Cabinet in 2004. The Bill was aimed to clarify the roles of the Department and other stakeholders and would legislate, solidify and enshrine certain structures that were necessary to promote indigenous knowledge in South Africa. He emphasised that the Bill had already gone through rigorous scrutiny in the Portfolio Committee.

Protection, Promotion, Development and Management of Indigenous Knowledge Bill

Dr Yonah Seleti, Chief Director: DST, introduced the Bill, stating that it was a major milestone for the Department.

The Bill had been published for public comment in the Government Gazette in 2015 and 2016. The Bill aimed to address concerns regarding bio piracy, misappropriation, the promotion of registration of indigenous knowledge, recognition of prior learning of practitioners, benefit sharing for communities, facilitation of research and development and creating mechanisms for dispute resolution for the communities.

Legislative Process

Before the tabling of the Indigenous Knowledge (IK) Bill to the Cabinet, the DST had subjected the draft Bill to consultation with national government departments and in all nine provinces. A number of responses had been received, indicating a significant level of awareness and engagement with the process.

The Bill had been published on 20 February 2015 in the Government Gazette. A total of 29 written comments had been received, and 13 public engagement meetings had been held after that. A review team comprising both international and local experts had been established. A revised Bill was then drafted for introduction into the Parliamentary process.

On 12 April 2016, the Minister of Science and Technology had introduced the Protection, Promotion, Development and Management of Indigenous Knowledge Bill [B6-2016]. The Bill was classified as a section 76 Bill. A number of departments had since made presentations to the Portfolio Committee on Science and Technology.

In March 2017, the Portfolio Committee had held a joint meeting with the Portfolio Committee on Trade and Industry, which had resulted in a resolution that an interdepartmental task team be established to work through areas in the Intellectual Property Laws Amendment Act (IPLAA) and the Indigenous Knowledge (IK) Bill, where they were considered to be overlapping.

A redrafted Bill was approved by the Portfolio Committee on 13 September 2017, and on 14 November 2017, the National Assembly had approved the Bill for concurrency.

A summarised version of the Bill was presented, comprising of 34 clauses. The highlights of these were:

• Clause 3 listed nine objectives of the proposed Act. The primary objective of the Bill was to protect the indigenous knowledge of indigenous communities from unauthorised use, misappropriation and misuse, and to regulate the fair and equitable distribution of benefits from its commercial use. It also provided mechanisms for the accreditation of assessors and the certification of practitioners.
• Clause 4 allowed for the establishment of the National Indigenous Knowledge Systems Office (NIKSO) within the Department.
• Clause 6 empowered the Minister to appoint a suitably skilled and qualified person as the head of NIKSO, who would be responsible for the administration and general management of NIKSO.
• Clause 7 allowed for the establishment of an advisory panel comprising representatives of relevant government departments, indigenous knowledge holders, industry and specialists in the discipline and practice of indigenous knowledge.
• Clause 11 delineated the eligibility criteria for protection of the subject matter, namely, indigenous knowledge which had been passed on from generation to generation within an indigenous community, had been developed within an indigenous community, and was associated with the cultural and social identity of the indigenous community.
• Clause 13 provided for indigenous communities holding indigenous knowledge to have the exclusive right to any benefits arising from its commercial use, to be acknowledged as its source, and to limit any unauthorised use of the indigenous knowledge.
• Clause 16 provided for the establishment of a Register of Designations, where persons other than the indigenous community or an individual within that indigenous community may access information.
• Clause 18 provided for the appointment of a suitably skilled and qualified person as the Curator of indigenous knowledge, who would be responsible for the control of the Registration Office.
• Clause 26 afforded opportunities for any person who intended to use indigenous knowledge for commercial purposes to apply in the prescribed manner for a licence authorising the use of that indigenous knowledge.
• Clause 27 empowered the Minister to appoint members of the Dispute Resolution Committee on an ad hoc basis to resolve any dispute arising from this Bill.

It was envisaged that NIKSO would operate under its current budget as a specialised service delivery unit. It should be ready to operate without asking for extra resources.

Discussion

The Chairperson said the presentation had been straight forward and was understandable by all. The Committee was very excited about the Bill. She requested all the provincial representatives to give importance and attention to the Bill so that they could explain it to the communities in their provinces

Ms Jacqueline Mofokeng, Acting Chairperson: Sports, Recreation, Arts and Culture (SRAC), Gauteng Provincial Legislature, expressed concern that most people with indigenous knowledge were black, but the Bill did not reach them because it was mostly in English or Afrikaans. She wanted to know exactly where in all the nine provinces the Department had generated awareness, especially in Gauteng. The reason she was emphasising this aspect was because during a court session involving one of the previous regulations, the list of public participation meetings could not be produced, which had created conflict.

A Gazette did not reach everyone in Gauteng. What was it that the Committee could do to empower the people of Gauteng? The Gauteng leader had not been able to tell her when and where he had visited Gauteng for public participation, which had increased her concern.

Mr O Sefako (ANC, North West) said the Committee had a responsibility for ensuring understanding of the Bill reached out to all the districts and provinces. There was no shortcut to the process. Besides, keeping the time frame in mind, how long would the Committee still be in the Parliament and if it did not complete its business, the legal team would be leaving soon and a new team would come in in 2019, which would pose another challenge.

He asked if there would not be provision of regional registration officers, as they should be going to the people. The focus was normally on the cities, but here it was on the people on the periphery, or in the rural areas. Majority of the people who were in possession of indigenous knowledge were also illiterate, so how could they have access to these offices?

Ms Boitumelo Moiloa, Chairperson: Culture, Arts and Traditional Affairs (CATA), North West Provincial Legislature) commended the Committee for inviting them as provinces to take part in the discussion. She exposed the challenges that provincial departments faced during public participation, like the officials not being able to explain the Bill to ordinary people. She emphasised that the person sent from the Department should be able to explain the Bill thoroughly to the members of their community. It was one of the things that caused unnecessary litigation at later stages.

She cautioned the Committee that in order for the Bill to yield good results, the people who had indigenous knowledge, should not be exploited. If the Department did not have offices at the grass roots level, they would end up exploiting people, as there would be many who would see this as a money-making opportunity and would try to take advantage of the people.

Referring to clause 18, she asked about the criteria for finding the curator.  Even if the Department found a person who was qualified, it should make sure that even that process was transparent to the people.

Mr E Mlambo (ANC, Gauteng) agreed with Ms Moiloa, saying there were always criminals who would take a chance to make money. The Minister had been granted powers (in clause 31) to make regulations, but if an association could be formed to manage the location of people, as a security system, it would have closer links to the offices formed around the country.

The Chairperson reminded the meeting that the normal practice was to advertise in all languages possible. She recalled that In Mpumalanga there were documents in the local language available for the people there.

She agreed that it was mostly the black people who were affected by this Bill. There were researchers who were stealing ideas. She asked if there were mechanisms in place to prevent that. She directed the Department to identify the deeply remote areas where people needed to know about the indigenous knowledge Bill.

Mr Sefako said that the question of exploitation could not be overemphasised, because if there was an opportunity, some consultant would take it. Also, culture was not static, it was developing, and other belief systems had started emerging. The way in which protection should be provided should look into the evolution of culture.

The Chairperson wanted to know who was responsible for the licensing?

Ms Mofokeng wanted there to be a check on medical council/medical control. Most of the indigenous plants had been stolen – for example, the African potato. Encouragement should be given on how to patent them so that even if they had to be modified, the African people must receive their royalties.

Department’s response

Ms Shumi Pango, Deputy Director: DST, addressed the issues regarding the consultations by stating that after the Bill was gazetted, the Department had been mindful that not everyone would read it and provide inputs, so they had run a parallel process by going to all nine provinces and creating awareness. They had established IKS documentation centres in the provinces. They had received comments that were fed into the Bill when it was revised and redrafted, so they had not relied only on the gazetted responses.

They had also met the National House of Traditional Leadership, to make use of their constituencies and their own ways of mobilising their communities, which was over and above the IKS centre that they were using as a catchment base. They would be using the venues used by the traditional leaders to hold meetings. That way they would be able to access those communities that were not in the vicinity of the IKS documentation centres. These IKS centres helped the DST to have a footprint in rural areas of the provinces. Regarding the explanation of the Bill, they had translated it into the different languages.

Ms Carol van Wyk, Director: IKS Knowledge Management, DST, gave an assurance that there would be registration offices in all the provinces. They were piloting this project through the establishment of these centres. The documentation of IKS was in the vernacular. The process followed the protocol of the traditional leadership.

They currently had 60 communities that were taking part in the national recording system across the country, and about 70 IK recorders which they had selected from these communities and trained them on protocols, how to interview and record, about non-disclosure agreements and explaining to the communities, information registration etc. In each of the communities that participated, they had a memorandum of understanding (MoU) with the leadership of the communities. They basically became a part of the steering process. It was a voluntary system, but they made people understand that if they did not register, then their knowledge could not be protected. She also mentioned that most of the communities they had interacted with were very keen on registering their traditional knowledge.

Intellectual property rights or patents were usually registered in the Companies and Intellectual Property Commission (CIPC) office, and there were standard protocols, forms and practices to do so. They had had to conceptualise and design an entirely new concept of registering indigenous knowledge, which had been run through the Council for Scientific and Industrial Research (CSIR) to design an information technology (IT) system to do it. This entire process was mainly South African, and they were probably world leaders in this. It was necessary to emphasise the science, technology and innovation aspect of this work.

Mr Tom Suchanandan, Director: DST, addressed the issue of licensing, saying the process would be facilitated by NIKSO. NIKSO did exist currently in the Department, but when the Bill passed, they would migrate to an arm’s length distance from the Department. Within the umbrella of NIKSO there were four pillars -- regulations, accreditation, registration and commercialisation.

The licensing was the tail-end of the whole process. When the registration begins, it begins with disclosure of information, and that disclosure was subject to a formal consent agreement. This leads to a benefit sharing agreement. When the research actually starts, it then leads to a material transfer agreement. The tail-end was the licence agreement, which would be standard. The only difference would be the royalty percentages, which was a negotiated issue between the researcher and the information holder.

There were three systems involved when a researcher/scientist/academic accessed this information through the national recorder system. He would also be subjected to a number of agreements and legal frameworks. The second system, when a researcher used biological research, required an application for a permit which was issued by the Department of Environmental Affairs (DEA). The third system involved patenting. When a patent was applied for, Section 25 indicated that the applicant had to disclose the geographical location of the plant, where the knowledge had been acquired from, and whether or not there were benefit sharing agreements in place

The issue of multiple claims would be handled by the ad hoc dispute resolution committee.

The issue regarding patents on plants was that plants were protected by the Plant Varieties and Seeds Act, but there were no patents on plants. Patents could be acquired on the knowledge associated to the plant that leads to an invention.

The Department had also had many programmes to commercialise indigenous knowledge. For example, there was a unit in the Department called IKS bio knowledge, which specially aimed to empower communities that had knowledge that could be commercialised as nutraceuticals or pharmaceuticals. The DST had tried to put into place all the mechanisms to avoid disputes of any kind in the future.

The Chairperson asked about the number of practitioners in place currently.

Ms Van Wyk responded that there were two strings on the national recording system. One was the communities, and the other was the IK holders. Just for Limpopo, there were 5 900 registered items on the system. Research showed that there had been more than 3 000 IK practitioners back in 2014, so there could well be more now.

The chairperson asked clarity on the monitoring of these practitioners.

Ms Van Wyk said that there was a Traditional Health Practitioners Act that fell under the Department of Health, with an interim council that was responsible for the practice. Their role was to ensure that the clinical aspects of this work did not endanger the communities.

The Chairperson concluded that everyone on the Committee was excited about the potential of the Bill to help the communities.

The meeting was adjourned.