Implementation of Indigenous Knowledge Act and related matters: DSI briefing

Meeting report

Prof Yonah Seleti, Acting Deputy Director-General (DDG): Research and Development Support, Department of Science and Innovation (DSI), said that the regulatory function in the context of the Indigenous Knowledge (IK) Act sets out to provide the conditions for access and use of indigenous knowledge. It deals with the management and protection of rights of knowledge holders (intellectual property) and the management of rights of users of that knowledge, which includes management of benefit-sharing and making sure there was compliance.

The regulatory function intervened in instances of transboundary indigenous knowledge, such as, for example, between neighbouring countries like Namibia, Lesotho and Botswana, and served as a national competent authority. The DSI worked with the Department of Environmental Affairs (DEA) on bio-prospecting in a joint effort on the regulatory elements around these issues.

During a consultation period on the IK Act, the Select Committee on Communications and Public Enterprises had requested that the DSI embark on a public awareness campaign in rural and urban communities to raise public awareness about the Act. In 2021, the DSI had conducted such a campaign in most languages in all nine provinces of South Africa.

The DSI had begun to prepare communities for the time when the Act was implemented. Before the regulations on the IK Act were implemented, the Biocultural Community Protocols (BCPs) allowed communities to discuss and formulate an agreement on their indigenous knowledge and empower communities on how to engage with third parties. BCPs were instruments that set out clear terms and conditions to governments and the private, research and non-profit sectors for engaging with indigenous and local communities (ILCs) and accessing their local resources and knowledge. They were developed through participatory decision-making processes within the communities and were based on communities’ customary norms, values and laws. To date, the DSI had conducted BCPs in three communities in Mpumalanga, three in North-West, two in the Free State, 16 in the Eastern Cape, six in the Western Cape, 16 in Gauteng, four in Limpopo, five in the Northern Cape, and 16 in KwaZulu-Natal.

The IK Act policy development had commenced with the DSI drafting the regulations. In March 2020, the DSI’s executive committee had noted the draft regulations. In March 2021, the DSI executive committee had recommended that the DSI embark on consultations on the draft regulations. In August 2021, the Minister had approved that the regulations be presented before the Economic Sectors, Employment and Infrastructure Development (ESEID); and in November 2021, ESEID had approved that the regulations be presented to Cabinet.

To date, the Minister had signed the Cabinet memorandum for the regulations to be presented to the Cabinet. The regulations were accompanied by legal documents, including prior informed consent, benefit-sharing agreements, non-disclosure agreements, material transfer agreements, licence agreements, application forms, registration forms, and community resolution forms. These documents were in digital form and would be posted online so that anyone interested could view them. The regulations would be translated into local languages so that people could access and understand the policy regulations during the process of public consultation. The DSI intended to complete the process with the launch of the special service delivery unit (SSDU) on 1 April 2023.

One of the critical provisions of the IK Act was the establishment of the National Indigenous Knowledge Systems Office (NIKSO) as an SSDU. The main function of the office was the implementation of the IK Act. The DSI had requested the Government Technical Advisory Council (GTAC) to conduct a feasibility study and a business case for NIKSO. Following the approval of the two documents by EXCO on 25 February 2020, an interdepartmental committee meeting comprising the DSI, the Department of Public Service and Administration (DPSA) and National Treasury had been convened to consider the two reports. The Committee recommended that the DSI develop a funding model for the SSDU, and a service delivery plan.

The registration of indigenous knowledge in the context of the IK Act served the purpose of recording, preserving and protecting the knowledge of indigenous communities from biopiracy and exploitation. It aimed to ensure that the socio-economic benefits arising from the use of communal IK resources would flow back into the local communities who were the generators and custodians of this knowledge. Registration of IK would be facilitated through the office of the Curator.

The IK registration system had been migrated to the Data Intensive Research Initiative of South Africa (DIRISA) infrastructure. Data from IKS documentation centres had been successfully synched to the Central System in September 2021. The IK registration system comprised sub-systems, including the NIKSO portal in which communities could brand themselves, the national IKS management system, which allowed for the managing and protecting of indigenous knowledge, the provincial IKS documentation centres (IKSDCs), and the Pharmacopoeia, a digital library of South African IK medicines.

The IK registration system covered over 2 000 IK holders, 10 000 claims and 3 000 recordings quality assured and synched to the IK registration system central server. The website would be launched by the Director-General today (23 March) and the information would be publicly accessible, although regulations were still needed to be put in place for the IK recordings to be made available.

The recognition of prior learning (RPL) outlined the purpose for the recognition of prior learning, and sets out the application process for persons wishing to register indigenous knowledge practitioners and to be certified in the register of designations as such.

The DSI had identified 16 disciplines that fell within the scope of the recognition of prior learning, including traditional healing, indigenous mining, indigenous architecture and technologies, indigenous astronomy, governance, education and cosmology.

The IK-based bio-innovation programme established at the Technology Innovation Agency (TIA) and Industrial Development Corporation (IDC) had been created as a commercialisation platform within the SSDU to regulate that the users of indigenous knowledge follow the regulations. This would allow individuals who intended to use IKS for commercialisation purposes to apply in the manner prescribed in the regulations for a licence authorising the use of indigenous knowledge. The IK-based bio-innovation program functioned to facilitate innovation, manufacturing and the commercialisation of IK products.

Discussion

Ms C King (DA) said she was glad to see the extent of progress that the DSI had achieved with the process of implementing the IK Bill. She asked if the issue concerning the overlapping of registration between the Intellectual Property Laws Amendment (IPLA) Act and the IKS Act had been addressed. Were both the South African Qualifications Authority (SAQA) and the Quality Council for Trades and Occupations (QCTO) going to be responsible for the authorisation of certification for recognition of prior learning? Were there any considerations to incorporate the University of Fort Hare into the cannabis production programme with the CSIR, considering the capacity for cannabis production in the Eastern Cape? Why had the IKS Act pilot project been considered for only the provinces of KwaZulu-Natal, Northwest and Limpopo, given that there was rich input from the Khoi and San communities in the Western Cape, for instance?

Ms J Mananiso (ANC) asked, with regard to the indigenous knowledge public education, if there were interpreters that could interpret this IKS concept? Was it possible that the DSI could submit the demographic data of those benefiting from IK holders and IK claims rights? How did the IKS model fit into the district model? She suggested that the pilot project should also include Gauteng.

Ms N Tarabella-Marchesi (DA) congratulated the University of Free State on the laboratory they had opened and the conducting of clinical trials in traditional medicine. She asked how the Department had made sure that the IKS regulations were accessible and not deterrents for those wanting to be registered as traditional healers. How had budget limitations impacted the Department in the IK Act process, and how far would the Department go if there were no limitations? She said it was a good idea that people should be able to choose traditional healers in hospitals.

Ms K Mahlatsi (ANC) asked what the reception of communities had been during the IK consultation processes. Had there been overwhelming support? How would the Department protect the holders of indigenous knowledge?

DSI's response

Prof Seleti said SAQA had been involved with the recognition of prior learning from the beginning to translate indigenous knowledge into the national framework. The setting of the norms and standards had been set by the national qualification framework. The creation of the IKS norms and the national qualification norms had already been done. What was being worked on at present with SAQA and the Quality Council for Trades and Occupations (QCTO) was to streamline this process and delegate the assessment of traditional knowledge holders to NIKSO. In NIKSO, there would be disciplines of competence -- in other words, communities of practice. NIKSO would be involved in the certification of these disciplines.

Concerning the selected areas for the pilot project, the task had been complicated due to the many communities that were involved and the differing views around traditional health practice activities. The plan was to reassess and do a more thorough study, to get a deeper understanding before the information was translated to a national qualification standard. The DSI attempted workshops in Mpumalanga, but the outputs of these workshops did not produce sufficient information to make conclusions. The Eastern Cape had already been integrated into the work going forward on the passage of rights for young men.

Concerning the credibility of the recognition of prior learning, the SAQA had mainstreamed the indigenous knowledge information toward a national qualification framework while taking into consideration the uniqueness of the information.

Concerning intellectual property management and benefits to communities, the legislation had been passed for this reason – to create a system where the exploitation of knowledge holders and communities came to an end.

Prof Seleti suggested the Portfolio Committee should communicate with the National Treasury because the IK Act could not be implemented and could not achieve its goal to become a fully regulated system without additional resources.

Ms Carol van Wyk, Director: Knowledge Management, DSI, said that the NIKSO portal was the platform for people to access IK information. The website created the face of NIKSO in terms of the IK Act. The system would be launched by the Director-General this afternoon for the public. A subscription service had been encrypted on the NIKSO portal for the pharmacopoeia web pages. The NIKSO uniform resource locator (URL) would be sent to Committee Members to browse the NIKSO website functions.

Dr Hlupheka Chabalala, Director: Indigenous Knowledge System Technology Innovation (IKSTI), DSI, said that the DSI was currently not working with the University of Fort Hare on cannabis production. The research and discovery phase of medical cannabis as an African medicines platform was currently being done by the University of Free State, the CSIR, the Agricultural Research Council (ARC) and the University of Pretoria. The process was now in product development, headed by the CSIR. The idea was to manufacture products together with small and medium enterprises (SMEs). The University of Fort Hare had been part of the nutraceuticals platform which had been doing research into indigenous vegetables and their role in food security. Funding was a challenge in cannabis research.

Ms Shumi Pango, Deputy Director: Advocacy & Policy Development, DSI, said that within the South African Bureau of Standards (SABS) there was a unit responsible for IKS, and part of their work had been to document indigenous knowledge in communities. After the DSI had presented the IKS Bill to Parliament and consultations were done, it was clear that there were some overlaps in function between the two departments. At some point, an agreement was reached to hand over the responsibility of documenting indigenous knowledge and all IK- related work to NIKSO. The arrangement was such that the data that had been collected over the years would be handed over to NIKSO.

The IK Act proposes that communities nominate trustees who would then be the representatives of communities. There were two levels of communities in the IKS Act. The first was the community which was geographically located in a particular space and shared the same knowledge and practices -- they would have the knowledge, and that knowledge must have been passed from generation to generation and identified with a social and cultural identity of the community. The second layer of the community was the family. In some instances, the indigenous knowledge was owned by the family, passed from generation to generation within that family, and this family constituted the community. The trustee would represent the community, based on how the community was defined. The trustee would be administered under the Trustees Act, which would take over the whole process of managing trustee affairs. The trustee would apply to the curator who would then look at the eligibility criteria. The SABS would concentrate on only those areas in the IPLA Act, such as traditional works.

The languages used during the public awareness campaign had been the languages of those communities. The presentations were translated into all official languages. Communities had responded positively because there had been widespread acceptance of the protection of exploitation of indigenous knowledge. When the consultation of the bill was in process, there was a lot of input from communities, some of which changed aspects of the trajectory of the drafting of the Bill.

Prof Seleti's closing comment was that the overall achievement of the IK Act was that of restoring African dignity.

The meeting was adjourned.