South Africa's new Plant Breeders' Rights Act 12 of 2018 (new Act) has, by proclamation in the Government Gazette of 6 June 2025, been deemed to have been in effect since 1 June 2025. Thus, the Plant Breeders' Rights Act 15 of 1976 (old Act) is now repealed.
The new Act essentially has the aim of modernising South Africa's plant variety protection regime by aligning more closely with the 1991 UPOV Convention. Breeders will therefore, in the new Act, find provisions that are more aligned with current global standards. This is particularly so in respect of the protection of essentially derived varieties, the granting of compulsory licences, and rights enforcement.
Furthermore, whereas protection under the old Act was available only for varieties of prescribed kinds of plants, the new Act extends protection to varieties of any plant genera and species, save where legislation may provide otherwise, that are new, distinct, uniform, and stable, and that have acceptable variety denominations.
Procedural improvements include that provisional protection is now automatically provided to an applicant from the filing date of an application for the grant of a plant breeder's right. Previously, an applicant had to specify whether or not they required provisional protection and had to give an undertaking that the applicant would not commercialise the variety during the pendency of the application, in exchange for a protective direction.
Now, no such undertaking is required. However, an applicant cannot sue for infringement under their provisional protection during the pendency of the application. The applicant is only entitled to claim "equitable remuneration" from a person who exploited the variety through the performance of acts otherwise reserved for the holder of a plant breeder's right.
Significantly, the new Act gives wide powers to the minister of agriculture to determine the scope of the farmers' privilege exception, including to identify certain categories of "producers" who "may use the protected variety". Previously, this exception was strictly limited to the use of harvested material of a protected variety, obtained by a farmer from cultivating the variety from legitimately obtained propagating material on land occupied by the farmer, for purposes of propagation only.
The scope of the farmers' privilege exception and, more specifically, of the powers granted to the minister, has been cause for concern amongst breeders and was much debated during the public consultation process conducted while drafting the new Act. Such concerns included that the farmers' privilege provisions are too vague to give comfort to breeders that their rights will not be eroded, notwithstanding a provision that the minister must ensure that "the legitimate interests of the breeder are safeguarded" in regulating farmers' privilege. It is expected that regulation of the farmers' privilege exception will continue to be the subject of much debate.
Regulations under the new Act are expected to be published within the next few days, upon which the act will formally come into operation.
Adams & Adams continues to provide comprehensive assistance to breeders in the pursuit of plant breeders' rights, having a strongly established record in this regard in acting for numerous multinational breeding companies and individual breeders over many years. We look forward to continuing to do so in the new environment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
