Submission on Plant Improvement and Plant Breeders’ Rights Bills: Toward recognition and support of farmer managed seed systems and seed and food sovereignty
For the attention of: The Chairperson, Portfolio Committee on Economic Development Agriculture, Rural Development, Small Business, Sport, Arts & Culture, Free State Provincial Legislature, care of Mr Kgathatso Nkeane
- Via email to Mr Kgathatso Nkeane firstname.lastname@example.org, Cell 082 5559987
- By fax to Marette Basson Fax 021 4240398 (Cell 082 6463677 Tel 021 4241277)
For the further attention of: The Chairperson, Portfolio Committee on Economic Development Environment Agriculture and Rural Development, Gauteng Provincial Legislature, care of Ms Lebogang Mampe, Portfolio Committee Coordinator
- Via email to Ms Lebogang Mampe LMampe@gpl.gov.za , Cell 071 4830221 Phone 011 4985996
- By fax to Ms Joslyn Moeti Fax 021 4241428 (Cell 079 5228590 Tel 021
(Please note that as the deadline for submission to the Free State Provincial Legislature has closed, I am sending my submission both to the Free State Provincial Legislature and to the Gauteng Provincial Legislature, where the submission deadline remains open until the 13th September 2017. I am concerned about the differential treatment of citizens in my province where we have not been afforded an extension as has been the case for the Gauteng province.)
Contact: (e-mail, telephone or address)
Province: Free State
Dear Sir or Madam,
Thank you for the opportunity to comment on the Plant Improvement and Plant Breeders’ Rights Bills. My concerns are laid out below.
The Plant Improvement Act and Plant Breeders’ Rights Act have been in place since 1976. As a result, South Africa’s seed system is largely owned by a few corporations and extension services are heavily aligned with the interests of these corporations. Thanks in part to these laws, industrial agriculture, based on large-scale monocrops, is seen as the only viable agricultural system for South Africa. These laws ensure that the seeds on the market are tailored to this system. They often need agricultural chemicals and artificial fertilizer, and do not perform season after season if they are recycled. Thus, these laws have entrenched our marginalisation from seed breeding and food and seed production, and have eroded our agricultural biodiversity and related skills and knowledge.
The amendment of these two laws provides an opportunity for government to transform our seed and food production sectors in South Africa, so that they support regenerative farming practices, produce healthy and diverse food and promote social justice and equity. Currently, the laws hinder and, in some cases, even criminalise farmers and their practices in relation to seed. Below are my suggestions for changes to the Plant Improvement and Plant Breeders’ Rights Bills.
- Plant Improvement Bill
1.1 It is unfair for our laws to promote only one system of agriculture.
(The current Bill is unfair because
– The requirement for seed to be distinct, uniform and stable – DUS compliant – promotes genetically uniform seeds for industrial farming systems and does not allow farmers’ varieties that are inherently heterogeneous to be part of South Africa’s seed markets/sectors.
– The costs and procedures for certifying seed and the testing requirements are too onerous for smallholder farmers, thereby discriminating against them, as they are excluded from certifying, distributing and trading their seed; indeed their seed systems are excluded from being part of the South African seed sector.)
2.2 We need crop diversity and gene diversity to face climate change and hunger.
(DUS is contributing to the destruction of biological diversity and adaptability.)
1.3 Farmers using agroecological methods of farming (e.g. organics, permaculture, etc.) need access to appropriate, diverse and quality seed.
(DUS-compliant seed is not able to deal with context-specific needs of farmers and the different sectors of our farming community, or to ensure that there is a wide diversity of seed available to support diverse farming systems.)
1.4 The historical sharing and exchange of seed has resulted in the crop domestication and diversity humankind relies on today. It has also played a vital role in social cohesion and goodwill. I strongly object to the criminalisation of these practices.
(Seed that has not been certified may not be sold. The Bill defines “exchange” as a form of sale, thereby criminalising the exchange of unregistered and uncertified seed. Exchange of seed between farmers is a vital part of their agricultural and knowledge systems. Criminalising this practice is discriminatory and at odds with our Constitution.)
1.5 Farmers must be freely allowed to cultivate, distribute, exchange, propagate and trade in all seed in their seed systems.
(Agroecology is currently seen as the only viable system for poverty alleviation and long-term ecological sustainability of our food systems. The Bill must give space for this system to also become economically viable. Seed legislation must allow farmers to market their seed in the seed sector. Government must design, in consultation with farmers, appropriate mechanisms for voluntary, farmer-led quality standards for the marketing and trade of farmers’ varieties.)
The following recommendations are in response to the points made above:
- Farmer-managed seed systems and the exchange, distribution and sale of seed grown by small-scale farmers must be exempt from the provisions of the Bill.
- S45.1 enables the Minister to “establish schemes with the object of maintaining the quality of plants and propagating material of those kinds of plants and of ensuring the usefulness for agricultural or industrial purposes of the products”. This gives the government the opportunity to consult with small-scale farmers, in order to set up appropriate and supportive voluntary certification schemes for farmers’ varieties, so that such varieties can be exchanged, distributed and marketed.
- Clear definitions of “commercial”, “non-commercial” and “business” are lacking in the Bill. These are needed in order to unambiguously exempt smallholder farmers and their seed systems from the ambit of the Bill and to ensure that such farmers are able to freely cultivate, distribute, exchange, propagate and trade in all seed under their control and in their seed systems.
- In order to ensure that farmers have the right to freely exchange and sell their varieties, b) must be removed from the definition of “sell” in S1:
‘‘Sell’’ includes —
“(a) agree to sell or to offer, keep, expose, send, convey or deliver for sale; and
(b) to exchange or to otherwise dispose of to any person in any manner” (S1)
[With thanks to African Centre for Biodiversity (ACB) for their legal analysis, available at:
- Plant Breeders’ Rights Bill
2.1 Plant breeders should not be given rights over harvested materials (grain and milled maize).
2.2 Government has a duty to keep some crops in an “open-source” or public interest space and therefore must not extend breeders’ rights over all crops. Government must consult with small scale farmers with regard to these exceptions.
2.3 Smallholders must continue to have the freedom to reuse farm-saved seed from protected varieties.
2.4 I strongly object to the criminalisation of the exchange of farm-saved seed from protected varieties, and the use of South Africa’s criminal justice system and public resources to police farmers, in order to enforce the rights of breeders.
2.5 We need crop diversity and genetic diversity to face climate change and hunger and create space for smallholders practising agroecology.
The following recommendations are in response to the points made above:
- Section 7(2) (b), which extends breeders’ rights to harvested materials must be deleted.
- The right of a farmer to reuse saved seed of a protected variety for purposes of propagation on his/her own holdings available in Section 23(6) (f) of the existing Act has been replaced with Section 10(2) in the Bill, which requires the Minister to prescribe who might use the protected variety, for what purpose, and under which conditions. Article 23(6) (f) of the existing Act must be retained. The proposed Section 10(2) of the Bill is simply inadequate to address this critical activity on the part of farmers, as it does not expressly recognise the right of farmers to reuse and exchange farm saved seed of a protected variety, and its operation is at the discretion of the Minister and may be subject to conditions and payment of remuneration to the rights holder.
- Section 10(1) (a) – “private and non-commercial” – is new. The original wording “private or non-commercial” should be retained and be properly defined to allow for the reuse by a farmer of a protected variety including exchange.
- Section 55(1) of the Bill provides that any person convicted of an offence is liable to a fine or imprisonment for a period not exceeding 10 years, or both. Royalties/compensation can be claimed in addition to Section 55(1) (b). (Section 45 of the existing Act corresponds to Section 55(2) of the Bill). This section should be deleted, as the state must not spend public money policing and enforcing private rights.
- DUS criteria are dealt with in Clause 15.2 of the Bill, and Chapter 5 Clause 26 deals with tests and trials for DUS. Drafters must extend the space for consideration of non-DUS varieties throughout the Bill to allow for a diversity of agricultural practices.
[With thanks to ACB for their legal analysis, available at: http://acbio.org.za/wp-content/uploads/2017/01/ACB-comments-PBR-Bill.pdf]