Plant Breeders’ Rights in Africa

Smit & Van Wyk can assist in the filing, prosecution and enforcement of a plant breeders’ right in South Africa, by acting as the duly authorised agent. Plant Breeders’ right protection in Africa is still evolving and differs in each jurisdiction.  There might not be experts available to advise clients in the various African states, but Smit & Van Wyk is well positioned to advise clients in respect of the various African jurisdictions. 

In South Africa, the protection of plant varieties is afforded under a sui generis system: Plant Breeders’ Right.  In terms of the Plant Breeders’ Rights Act, 2016, the protection afforded to the holder of a plant breeders’ right includes that prior authorisation must be obtained from the holder for the duration of the right, for any person intending to undertake:

1. the production or reproduction (multiplication) of the protected variety;
2. the conditioning for the purposes of propagation of the protected variety;
3. the sale or any other form of marketing of the protected variety;
4. the exporting of the protected variety;
5. the importing of the protected variety; or
6. the stocking of the protected variety for any of the purposes referred to in paragraphs (1) to (5).

Certain exceptions are, of course, provided for in the Act. In order to obtain a valid plant breeders’ right in South Africa, the following requirements must be met:

• The plant must be on the plant breeders’ rights plant list;
• The applicant must have the right to apply; and
• The plant variety must be new, distinct, uniform and stable.

In order to apply for a plant breeders’ right in South Africa, the following is to be submitted to the Plant Breeders’ Rights Office at the Department of Agriculture, Forestry and Fisheries (DAFF):

• An application form including an acceptable variety denomination;
• A completed technical questionnaire (provides a description of the variety);
• Proof of rights to apply (if applicable);
• Appointment of agent;
• Coloured illustrations of the plant;
• Propagating material;
• Payment of the official fees.

The specific technical questionnaire to be completed will depend on the plant type.  Accordingly, we require an indication of the plant type in order to provide the correct technical questionnaire. Plant types are broadly distinguished as follows: ornamental, vegetables, fruit and agricultural crop. In order to claim priority from an earlier application under the International Union for the Protection of New Plant Varieties (UPOV), the South African plant breeders’ rights application must be filed within 12 months of the date on which the priority application was filed.

An applicant for a plant breeders’ right will have provisional protection from the date of filing the application until the grant/refusal thereof. No proceedings for infringement can be brought during this period. The applicant will, however, be entitled to remuneration from any person who during this period, after being notified of the application, carries out any act normally requiring authorisation in terms of the granted right.

Plant breeders’ rights applications are subjected to substantive examination in South Africa. The Registrar will conduct tests and trials in order to determine whether the plant qualifies for the grant of a plant breeders’ right. In the case of an application claiming priority, the results of tests and trials by another appropriate authority in another country can be obtained. Examination fees are largely dependent on the category of plant:

• Category A: agronomic, vegetable and pasture crops and annual ornamentals.
• Category B: fruit, vines, citrus and perennial ornamentals.
• Category C: white and yellow maize

Any person can object to the grant of a plant breeders’ right within 60 days of the publication of the application. This is done by way of formal application and is adjudicated by the Registrar. A granted plant breeders’ right has a duration of 25 years in the case of vines and trees, and 20 years in all other cases, calculated from the date of grant. Once the plant breeders’ right has been granted by the Registrar, annual renewal fees will become payable. The first annual renewal fee must be settled on or before 31 March of the year following the date on which the plant breeders’ right was granted and all subsequent annual renewal fees must be paid on or before 31 March of each year thereafter. There are no provisions for restoration should a renewal not be paid.