South Africa's new plant breeders' rights system comes into force, with notable parallels to the EU system

Earlier this month, a new plant variety rights system came into force in South Africa. The legislation repeals the Plant Breeders’ Right Act 1976 and introduces many changes, which took effect from 1 June 2025. The framework intends to bring South Africa into compliance with UPOV 1991, but also echoes certain features of the EU plant variety rights system.

Background

Photo by Hugo Sykes via Pexels.

The Plant Breeders' Rights Act 2018 received presidential assent in March 2019. However, as this Kat noted elsewhere, the Act would not come into force until a date set by future proclamation. 

Draft regulations were published in June 2022, but only recently approved by the Minister of Agriculture. President Ramaphosa finally signed a presidential proclamation that the new Act should come into operation on 1 June 2025 (although this was only published in the government gazette on 6 June). The Regulations were published on 13 June.

South Africa has the highest number of plant breeders' rights (PBR) registrations of any African country. It has been a member of UPOV since 1977 and ratified the 1978 Act of the UPOV Convention in 1981. South Africa is also a member of the Southern African Development Community (SADC), but it has not yet signed the SADC Protocol for Protection of New Varieties of Plants. This Protocol, which does not yet have enough signatories to enter into force, is modelled on UPOV 1991.

The changes under the new Plant Breeders' Rights Act 2018 have been promoted as a measure to bring South African national law in line with the terms of UPOV 1991. For instance, all plant genera and species are now eligible for PBR protection. However, many elements of the new legislation go further than the UPOV obligations and show influence from the EU Regulation on Community plant variety rights.

Duration of protection extended

UPOV 1991 sets a minimum duration of protection of 25 years for trees and vines, and 20 years for all other plants. This is mirrored in many countries, including the United States, Australia, and Nigeria.

The EU Regulation is more generous than UPOV. It provides 30 years of protection for trees and vines, which was extended to potatoes in 1996, and to asparagus, flower bulbs, woody small fruits and woody ornamentals in 2021. All other species receive 25 years of protection.

The new South African system also provides longer duration of protection. Under the Regulations, it will provide 30 years of protection for fruit trees, vines, sugar cane and potatoes. All other species receive 25 years of protection from the date of registration. New varieties automatically receive provisional protection as soon as the PBR application is filed. During the provisional protection period, the applicant is only entitled to claim "equitable remuneration" for the exploitation of the variety (a topic that has been controversial in the EU lately, see IPKat here).

The new law also increases the period of "sole rights" to the variety. During this period, the Registrar of Plant Breeders' Rights cannot grant a compulsory licence. Under the Regulations, the period of sole rights is 8 years for fruit trees, vines, sugar cane and potatoes, and 5 years for all other species.

In addition to the civil remedies for infringement (namely compensation), the new law also makes PBR infringement a criminal offence which may result in a fine or imprisonment for up to 10 years, or both.

Farmers' privilege restricted

The farmers' privilege is a controversial topic. This is an optional exemption under UPOV 1991, which permits farmers to save seeds that were produced on their own farm, in order to re-plant them on their own farm, without the authorisation of the PBR holder. UPOV 1991 notes that this should be "within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder."

UPOV members take different approaches to this exemption. In the EU, farmers who use saved seed must pay the holder an equitable remuneration which shall be sensibly lower than the amount charged for the licensed material, although small farmers are exempt from paying remuneration. This has been the subject of several legal disputes. Furthermore, only seed from certain species can be saved (namely potatoes and certain cereals, fodder plants, and oil and fibre plants). 

The South African Regulations have established multiple categories of farmers, each with different seed saving privileges. Those who fall within the categories of smallholder farmers, or subsistence or vulnerable household farmers, are allowed to save seeds of the species listed in the Regulations (i.e., certain agricultural crops, vegetables, and fruits). Medium-scale, large-scale, and mega commercial farmers are not covered by the farmers' privilege: they must have the PBR holder's authorisation and pay royalties on farm-saved seed.

Subsistence or vulnerable household farmers are allowed to exchange seed with each other and are not subject to any limits. Smallholder farmers cannot exchange seed and can only save seed up to fixed regulatory limits, which have been drastically reduced from the previous law. For example, the amount of corn/maize (Zea mays) seed that can be saved has been reduced from 3000kg to 12kg per year. Above these limits, smallholder farmers must notify the PBR holder and pay a reasonable royalty.

Closing Thoughts

This is not the first sign of other countries being influenced by the EU approach to plant variety rights. As this Kat discussed last year, Canada undertook consultations on potential changes to its PBR system, which included proposals to exclude certain species (such as ornamentals) from the farmers' privilege and to extend the duration of protection for potatoes, asparagus, and woody plants (which also received further extensions in the EU), beyond the minimum requirements of UPOV. These new regulations are expected sometime later this year, after a final public review and feedback period.

However, the EU is currently re-evaluating whether its own PVR Regulation - which is now over 30 years old - still remains fit for purpose. Furthermore, South Africa is a megadiverse country, where the PBR framework needs to be balanced with measures to conserve the biodiversity of plant species and protect traditional knowledge, including its Bioprospecting, Access and Benefit-Sharing Regulations. 

Therefore, it is a good sign that the new South African law establishes an Advisory Committee, which must have members to represent plant breeders, farmers, consumers, conservation and environmental interests, indigenous interests, and someone with legal expertise (especially in IP law). While it seems that the Minister has not yet appointed the committee members, it is positive to see provisions for a diverse Advisory Committee who can represent important domestic concerns as they guide the implementation and periodic review of the Plant Breeders' Rights Act.