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The new Plant Breeders’ Rights Act, 2018 (Act 12 of 2018) marks a significant shift in how intellectual property is managed in South African agriculture. While it brings the country in line with international conventions and promises to drive innovation, its impact on commercial farming practices — especially around seed saving — will likely spark further debate. Ensuring that small-scale farmers remain protected while also encouraging private-sector breeding will be key to the Act’s long-term success.
Years in the making
After several years of deliberation, the National Department of Agriculture (NDA) announced in June that the new Act had officially commenced. President Cyril Ramaphosa signed the proclamation following the approval of the regulations by the minister of agriculture, John Steenhuisen. The Act replaces the Plant Breeders’ Rights Act, 1976 (Act 15 of 1976).
Revisions in the new Act include the following:
- Streamlined administrative processes.
- Scope of plants eligible for protection extended to all genera and species.
- Periods of protection revised to up to 30 years in the case of fruit trees, vines, sugar cane, and potatoes, and 25 years for all other crops.
- Categories of farmers, crops, and quantities in relation to farm-saved seed defined.
- The establishment of an advisory committee, including representation from a wide range of stakeholders such as breeders, farmers, and intellectual property law specialists.
Rights for innovation
The NDA added that this Act would contribute to the South African government’s objectives and priorities by promoting innovation in plant breeding and agriculture. Through the protection of new plant varieties, the Act plays a vital role in enhancing food security, increasing agricultural productivity, and supporting rural development growth. Additionally, the new Act will encourage investment in plant breeding, foster job creation, and support economic development.
The publication of the Act was welcomed by the country’s seed breeders. Dr Mieke Human, science and policy manager at the South African National Seed Organisation (Sansor), said, “South Africa has a long history of variety protection. This has resulted in farmers having excellent choices when deciding which crops and cultivars to plant. The new Act positions South Africa very well internationally and continues to support innovation. Intellectual property protection is the foundation from which innovation becomes possible. The seed industry in South Africa has been able to grow because of the variety protection put in place by the NDA.”
Balancing act: Small scale vs commercial farmers
Dave Cochrane, a partner at leading African intellectual property law firm, Spoor & Fisher, said the updated legislation strengthens protection for plant breeders and encourages agricultural innovation, while also balancing the rights of subsistence, vulnerable, and small-scale farmers.
“This law supports South Africa’s farmers and plant breeders by protecting investment in new and improved plant varieties. It also ensures South Africa complies with the international UPOV 1991 Convention, promoting innovation and trade in the agricultural sector,” Cochrane said.
Cochrane said a few changes introduced by the new Act that users must take note of, include:
- Stronger protection for plant breeders: The term of protection for registered plant varieties has been extended to 30 years for certain crops like fruit trees, vines, sugarcane, and potatoes, and 25 years for all other crops.
- Limits on commercial use of protected seeds: The ‘farmer’s privilege’ – which allows farmers to save and use seeds from protected plants – now only applies to smallholder, subsistence, and vulnerable household farmers. Larger commercial farmers must now obtain permission and pay royalties to breeders when saving seed from protected varieties.
- Criminal penalties for infringement: Unlawfully using protected plant varieties is now a criminal offence, with penalties including fines, imprisonment for up to 10 years, or both.
- Sole rights period extended: The Act increases the period during which breeders have exclusive rights to their variety — up to eight years for specific crops like fruit trees and sugarcane, and five years for others.
- Provisional protection at filing: Breeders now receive provisional protection automatically as soon as they file an application.
- New rules for plant material submissions: The timeframes for submitting plant material for testing have changed. For most crops, material must be submitted within two years, and for potatoes, trees, and vines, within five years. Extensions are possible under certain conditions.
- Clearer definitions and rules: The Act provides clarity on what qualifies as a ‘sale’ (important for determining novelty), confirms that products made from harvested material are protected, and that preparing plant material for sale (called “conditioning”) can be an infringement.
Saved seed quantities
One of the most controversial aspects of the new regulations relates to the strict limits on saved seed quantities. Cochrane said the regulations also define what quantities of seed may be saved and shared by small-scale and vulnerable farmers. These limits are significantly lower than initially proposed – for example, allowed saved seed for groundnuts has dropped from 2 000kg to just 50kg, and maize from 3 000kg to 12kg, and fruit crops have dropped from 100 to 5 per kind. – Susan Marais, Plaas Media
For more information readers can contact David Cochrane at d.cochrane@spoor.com or phone 012 676 1001.
