Protection, Promotion, Development and Management of Indigenous Knowledge Bill [B6B-2016]: consideration of written submissions

Meeting report

Submissions on Indigenous Knowledge Bill

Mr Eric Boskati, Committee Content Advisor, said that five parties had sent written submissions on the Bill.

The first submission was from Mr E Matlala, which had been sent to the Committee on 26 March 2018. It concerned the involvement of women in traditional councils, which he felt should be addressed in the Bill. Mr Boskati responded that this concern could not be addressed by the Bill, as its focus was on indigenous communities’ information in the sense of medicinal plants and traditional herbs.

The second submission was from a Ms Pinto. It raised the concern that Sections 13, 26 and 27 talked about ‘communities,’ whereas it should be the individual, who was the holder, who must benefit. The sections stated:

Rights Conferred

13. (1) Subject to subsection (3), the indigenous community holding indigenous knowledge had the exclusive right to --

(a) any benefits arising from its commercial use;

(b) be acknowledged as its source; and

(c) limit any unauthorised use of the indigenous knowledge.

Access to and use of indigenous knowledge

26. (1) Any person who intends to use indigenous knowledge for commercial purposes must --

(a) apply in the prescribed manner for a licence authorising the use of that indigenous knowledge; and

(b) enter into a licence agreement with the trustee of the relevant indigenous community for the use of that indigenous knowledge, as facilitated by National Indigenous Knowledge Systems Office (NIKSO).

Dispute Resolution Committee

27. (1) The Minister may, subject to prescribed terms and conditions, appoint members of the Dispute Resolution Committee to resolve any dispute arising from this Act on an ad hoc basis.

(2) In resolving a dispute, the Dispute Resolution Committee must consider customary laws which may have a bearing on the subject matter of the dispute.

(3) Any party to a matter referred to the Dispute Resolution Committee may take the matter for review to the High Court.

(4) The Dispute Resolution Committee may, as a sanction:

(a) issue a written warning to the licence holder;

(b) issue a notice prohibiting the unauthorised use of indigenous knowledge by the licence holder; and

(c) recommend to NIKSO the cancelling, suspending or revoking of the licence rights of a licence holder.”

Ms Pinto stated that there was need to amend this provisions that conferred exclusive rights on the community. In section 26, it should state that any person who wished to enter into any license agreement must do so with the trustee of the individual community. She emphasised that the holder must also be the one to get the agreement, and not just the community that benefited. Mr Boskati pointed out that issue on Section 27 had already been covered.

The third submission was from Mr M Sandile, which was made on 27 March 2018. He was a businessman man whose business was in the use of indigenous equipment in manufacturing and the selling of indigenous plants. He had requested that the Committee grant him permission to come to before them in order as to address them orally.

The fourth submission was from Mr Adolf Joubert, a businessman who was actively concerned with indigenous knowledge. He was concerned that some of the traditional herbs had not been claimed by anybody and was asking who, then, was the holder of such knowledge? He also submitted that it would be better for everyone if the communities claiming indigenous knowledge registered the medicinal plants and also any work on them. He was of the view that there were business opportunities in the indigenous herbs sector, and as a businessman he was concerned that the validating process was taking too long. He expressed concern about double taxation, as the Department of Environmental Affairs (DEA) also had its own legislation with regard to botanical plants for which people were already paying taxes. He submitted that there should be a development fund set up by the national government, as had been done in some African countries. His concern was that instead of money going to only one community, it should go to the fund, which would be used to fund specific projects. He also requested the opportunity to address the Committee orally.

The last submissions were from Mr B Jacobs, whose concerns did not address any specific clause in the Bill. He said that where he used to live a long time ago, they had this indigenous knowledge on medicinal plants and they used to use. He wondered if there was a way people could benefit, even if they had used the indigenous knowledge a long time ago.

Mr Boskati said he had requested the Committee Secretary to invite a legal adviser who could advise the Committee on any issues regarding the submissions. The legal advisor had been involved in the in the drafting of the Bill, so he would be of help if Members had any questions related to the submissions.

Discussion

Mr J Parkies (ANC, Free State) said the Committee should give Mr Sandile an opportunity to come and present his views. The strategic focus of the Bill, which was also the people’s desire, was to have economic management of their knowledge of indigenous plants. The Committee was reminded of a presentation that had been made by the Department of Trade and Industry (DTI) on bio economics. The presentation had been on foreigners who come to the country to conduct research on indigenous plants, and afterwards they take those indigenous plants back to their countries. People were not even aware of that trend, but billions were being made out of South Africa’s indigenous plants. This Bill was important, and that the following week he was going to brief the legislature on it. Hoped the Bill would not force people more deeply into poverty. People wanted their plants and experience recognised, and to be given upliftment in terms of the fringe benefits of the economy.

Ms C Labuschagne (DA, Western Cape) agreed that Mr Sandile should be allowed to come before the Committee to give his views. She sought clarification on whether the registration of indigenous knowledge was compulsory. She also wanted to know how Ms Pintos’s submissions on individual holders fell within the whole idea of the registry of indigenous knowledge. She expressed concern about double taxation and wanted to know whether the DEA was aware of the impact of this law.

Dr H Mateme (ANC, Limpopo) wanted to find out how the Council of Traditional Healers had been brought on board, because 99% of traditional knowledge was vested in them. If the purpose of the Act was to do justice, all role players must be brought on board. This Bill’s topic was not only medical, but also spiritual, because some of the healers got their knowledge from their dreams. She suggested that the Committee should take a holistic view. She was of the view that there was a dilemma, as an individual was part of the community. The best thing was to go for a win-win situation -- that whatever licensing method there was, the individual who had made the discovery must also be acknowledged. She expressed concern that it was the pharmaceutical industry that siphoned off the natural wealth of the country, refining, standardising and make dosages, and coming back with a patented product. They made money out of it whereas it was the country’s’ great-grandfathers who had been the ones who had provided the knowledge. Peoples’ opinions should be considered, because this was the peoples’ Parliament. Parliament should be opened up to farmers of herbs, environmentalists, the Council of Traditional Healers, trade and industry, so that they all came on board. The Committee should not rush, to ensure it did good work on the Bill.

Mr N Singh (IFP, KwaZulu-Natal) said that both ‘community’ and ‘individual’ should be defined. When it came to existing indigenous plants, maybe one could have communities sharing knowledge. He spoke about indigenous plants being taken away and products coming back already manufactured, and said there was need to protect local knowledge. He acknowledged that there were instance where the community had the knowledge -- for example, the Khoisan and the Xhosa -- but there were also circumstances when an individual discovered the medicinal use of a herb. He sought clarity on what ‘knowledge’ was, according to the Bill.

Mr L Gaehler (UDM, Eastern Cape) wanted an explanation of what the contents of the non-disclosure agreement were.

Department of Science and Technology: Response

Mr Tom Suchanandan, Director: Advocacy and Policy Development, Department of Science and Technology (DST) replied that it was not mandatory to register, and that this was at a person’s discretion. However, people should be obliged to register. He invited the Director of Legal Services to make clarifications on legal aspects of the presentation before he dealt with the policy aspects and other issues.

Ms Sherlene Moonsamy, Director: Legal Services, DST, said that the definition of indigenous knowledge needed to come into play, versus individual knowledge. The Bill defined indigenous knowledge as knowledge which had been developed within an indigenous community. That was the first requirement for registration and accreditation. For classification into indigenous communities, it must have been assimilated into a cultural and social identity of that community and included knowledge of functionality, and knowledge of natural resources. Therefore, nothing in that definition sought to limit an individual from exercising whatever trade, and health-related, culture-related and accreditation from other departments and legislation. For example, traditional healers were under the Department of Health, as they certified health practitioners including traditional health practitioners, and there was legislation for that which that Department oversees and administers.

During the initial process, they had started looking into the Bill and its potential overlaps with the Department of Agriculture, the DEA, the DTI, even the Companies and Intellectual Property Commission (CIPC), which dealt with annual patents. There was no potential threat of one Act pushing out another, so the rights and privilege of the individual to trade or to be a health practitioner would not be taken away by this Act. The intention was merely to protect what was owned by indigenous communities, especially the idea of a benefit-sharing agreement, so that knowledge that a community had developed was not used out there without them benefiting. Its aim was to protect against the abuse of others’ communal knowledge. From a legal perspective, that was where the Act functioned, and it did not intend to take away anything else that already existed.

The Chairperson wanted to find out about the tax implications of the Bill. She also referred to page 21 of a presentation made by the DST to the Committee at its previous meeting, where she had wanted an answer.

Mr C Smit (DA, Limpopo) questioned the registration of indigenous knowledge. Once registered, it went to the community at large. He therefore wondered who would be making decisions on the use of that knowledge, and who would be approached. He said there were currently problems within communities, especially with regard to individuals who were at the centre of power in the communities. These communities should be protected from individuals who made decisions without consultation with the community at large so that the community also benefited.

Mr Suchanandan, said the Chairperson’s question concerning page 21 was about inspection of the register, which was not clear. Nevertheless, it would relate to non-disclosure. A non-disclosure was a legal document that bound researchers and/or entrepreneurs interested in the research or development of traditional medicine from passing information obtained from a community to another person. Thus it was an agreement that restricted the unauthorised passing on of information obtained from a community with other people, without entering into a contractual obligation.

There were a number of contractual obligations:

Prior informed consent

This was where one may not use any knowledge of a community without getting prior permission. This was a very important criterion, and what this legislation introduced was novel -- that the right to have access to or to be denied access to knowledge was vested in the community through the trustees. This was similar to a patent holder -- that if one had registered a patent, one had the exclusive right to the use of that patent. One may allow others to use it or not, and one had the right to sue whoever used it without permission. At the moment, no intellectual property rights in the country attributed or gave that right to indigenous knowledge holders. Therefore, by introducing that in this Bill, it covered this aspect. There was need therefore to have this legal instrument, to protect the indigenous knowledge holder.

Benefit Sharing Agreement.

If there were going to be benefits that accrued, this made sure that one got a share of the benefits.

Non-disclosure.

The information that one obtained was not passed on without the permission of the rights holder.

Material transfer agreement.

This was needed by a person who wanted to take biological resources physically from the community to another place.

Most of these provisions were also covered by the bio-prospecting laws of the country administered under the DEA. This was also in fulfilment of the country’s commitments under the Nagoya Protocol, which was an international obligation that the country had acceded to, and therefore had to be implemented. The DST was linking up with other departments, including the DEA, so that the Bill could be aligned to other laws to ensure concurrence.

On the policy issue, the Bill had to be considered holistically. If people did not understand how indigenous knowledge qualified as indigenous knowledge, that was where the debate between the individual vis-à-vis the community arose. This was not just about innovation on a plant. If it was, it could be a plant variety which did not fall under this legislation. If it was a discovery, which was a patent, it did not necessarily fall under this Bill. This Bill referred to the indigenous knowledge which had been passed on from one generation to another, so in the convention of intellectual property, it could not be patented or copyrighted. This was because it was already in the public domain. Therefore, in order to protect indigenous knowledge systems, this was what the Bill was proposing.

It was a new protection, which recognised that this information was also not public information, because not every person in the industry or the township had a specific or particular knowledge. To that extent, if a community had protected it and maintained it over generations, then it was associated with their cultural identity therefore they had a right to protect it. That was why the debate was really not about the factual aspects that the Bill was proposing. Indigenous knowledge was knowledge which had passed from generation to generation, had come through a dream, where ancestors had been speaking to a person, or was the knowledge that people had before, or which had been told through stories or through certain coded information. One had to recognise that it had been invested in the communities.

The Chairperson said there was still the issue of taxes.

Mr Suchanandan replied that there was no double taxation. One had to look at the value chain. What the DEA did was charge a fee to cover its administrative expenses. That was where the process began. When people applied for a permit to access biological resources, they paid those administrative fees. In this Bill, there was only a licensing fee. One could not do research on a plant unless one had a licence. If it went to a process of researching, discovery, and then production, because one had used indigenous knowledge, the DST would charge a fee so that some of that benefit went to the knowledge holders. Therefore, the licensing fee was part of a process of allowing that knowledge which had been developed to be entered into a legal agreement. It was also an administration fee. Then came royalties. If one made a profit, that got into a benefit-sharing agreement, so the prospector and/or business man was not being taxed -- he was sharing the benefits of his profits because he had based them on other peoples’ knowledge. Therefore there was no double taxation. The fees that were being charged were administrative fees for access and licensing.

Mr Parkies said it was possible for someone to get information in a dream, such as where he was instructed to go and get medicine in a particular place. He wanted to find out whether there were any barriers that that person would encounter. Would such a person be accorded protection in terms of privacy, or would he get exposed and people would know that such a person could cure a disease -- for example, cancer.

The Chairperson commented that there was actually a case about a person who had dreamt about a plant that she could use as a cure for HIV/AIDS. The process had involved that person going to consult the community in the area she had seen in her dream. With permission from that community, medication had been produced. Payment had also been very minimal and had been put in a trust so that the community also benefited from it.

Mr Suchanandan expressed his confidence that the Department had to some extent managed to answer some questions from the Members. However, to some extent he had not answered issues specifically raised in the presentation. He pointed out that this had been an on-going process, with consultations with traditional healers in every province. They had also been in the traditional houses of leaders, as well as custodians, so the consultations had been quite thorough.

Ms Pinto had been to the public hearings that were held in January in Parliament, so her comments had been presented before and the legal advisors had looked at them and processed them. Between the DEA, the DST, the DTI, and the Department of Agriculture, they had set up a one-stop shop to deal with everything. Whether it was access to materials or licensing, it would be dealt with in one place.

Regarding the submission regarding setting up a Fund, he said that this was guided by the National Treasury.

Regarding the submission from Mr Barry Jacobs, he said that it demonstrated how communities had been disempowered by the policies of apartheid. This had been in the form of people being taken from areas and the land that they were working. Mr Jacobs had wished that some of their rights could be restored. The Department understood that this Bill was an enabling instrument for them to gain some of that information and access that they had in the past. All the points that had been made demonstrated why the Bill was needed.

Ms Moonsamy clarified that even if there had been extensive consultation in the National Assembly Committee, the Constitution empowered this Committee to call back, hear and consider submissions.

The Chairperson said that Members were in agreement that Mr Sandile and Mr Joubert, who had requested to come and make their presentations, be allowed to do so. However, most of the submissions were already covered in the Bill and also in the presentations. On the issue of wide consultation on the Bill, the process had started in 2017 and was still continuing, and would be going to the provinces next week. Therefore there would be no Committee meeting, as Members were expected to go and brief their provinces on the Bill. She had been informed that there had been wide consultations with traditional healers and traditional leaders.

Ms Labuschane raised a concern that the Bill had been sent to the provinces for presentation. She felt that they could not send the Bill to the provinces for presentation while it was still being debated in the Committee. If the Committee decided to amend a provision, and the Bill had already been sent to the provinces, then the processes would not be speaking to each other. There was therefore a need to resolve this. She asked the Chairperson to raise the matter with the Chairperson of Programming, because sometimes a bill was sent to the provinces for information purposes. The provinces then started processing the bill before they got the green light from the Committee. That needed to be sorted out.

Dr Mateme said that this Bill was the first of its kind. Whenever one started something, it could not be perfect. The process should unfold the way it was going, as it was just the beginning. As democratisation matured and communities became more experienced, should there be a need for an amendment, Parliament at that time would respond accordingly.

Mr Parkies said it was unfortunate that the Bill had already been forwarded to the provinces.

Mr Smit said he had been involved in quite a lot of legislation, not just in this Committee, where he had learnt a few lessons. The reality was that once a bill had gone to the provinces, the Committee could not make any amendments to it, as they were bound by their provincial mandates. That was why it was absolutely important to first finish the Committee process, and then send it to the provinces, before it came back with the provincial mandates. Otherwise, it would become more of a rubber-stamp process, which the Committee would not want it to be. This was why the Committee had its own public participation process.

The Chairperson said that the points were quite relevant, because they did not want to come to a stage where their recommendations were rejected. The Committee would make sure that these recommendations were effected.

On the issue of the provinces, the process would be beginning the following week on Tuesday, but there were some provinces like Limpopo which already had their own dates in line of their own provincial schedule. The Committee had until Tuesday to make recommendations.

Dr Mateme appealed to the Programming Committee to come up with a workable schedule. She cautioned against producing half-baked legislation. However, she pointed out that the Committee had timeframes which made it a difficult situation, but which had to be adhered to nevertheless.

Ms Phumelele Sibisi, Committee Secretary, clarified that she had sent a programme for this legislation the provinces. The process was to begin on 23 May, so she had therefore been surprised when the provinces kept requesting information.

The Chairperson said that all members agreed that the sentiments raised were all correct, so now there was a need to ensure the corrections were made. The Committee would allow the provinces to get the documents in terms of their schedules, but this should not be before the Committee sat to make its amendments.

Ms Sibisi read the report on the Select Committee on Public Enterprise’s strategic plan, and the annual performance plan (APP) of the Department of Communication and Public Enterprise, for 2018-2019. The Chairperson said the Committee had considered them and concluded its deliberations on them. The Committee recommended that the reports be considered for adoption.

The Chairperson concluded that everyone was excited about the Bill being almost ready to start making its way formally to the provinces for their provincial mandates.

The meeting was adjourned.