South Africa is a biodiversity hotspot hosting possibly as many as 1 million species, many endemic to the region. The country is also extremely culturally diverse. Our indigenous communities have over the generations often adapted in harsh conditions. These communities acquire a vast amount of biological knowledge with regard to their habitats. This, in turn, makes South Africa a target region for bioprospecting.
There has been an overwhelming surge in the development of technologies related to applied biology. Those industries that use biological resources utilise the process of bioprospecting to acquire new raw materials used to develop drugs, treatments and super-crops. Bioprospectors harness the knowledge of indigenous communities, thus finding the biological raw materials more efficiently. Although indigenous communities contribute significantly, in most cases their contribution is not acknowledged nor adequately compensated for.
Large corporations have access to funds used to protect their biological inventions with intellectual property protection as the primary vehicle.
The international community has recognised the need for each state to protect its biological and cultural diversity. The 1993 Convention on Biological Diversity verifies this commitment. Since its inception it has been ratified by 178 countries including South Africa. Its three main objectives are a) the conservation of biological diversity; b) the sustainable use of its components and c) the fair and equitable sharing of benefits arising out of the utilization of genetic resources.
Each ratifying State has to make a concerted effort to protect its biological and cultural diversity. South Africa has come a long way. We have enacted two primary instruments: the Patent Amendment Act and the South African National Environmental Management: Biodiversity Act.
The Patent Amendment Act has not yet come into force. It is a defensive protection mechanism primarily aimed to protect our biodiversity and the rights of the indigenous communities. The Act puts in place certain additional requirements when lodging a biological patent, such as the disclosure of the origin of the invention and whether the invention is based on knowledge acquired from an indigenous biological resource or traditional knowledge. If the invention is derived from such information, the registrar will require proof of the applicants' title or authority to make use of such indigenous biological resource or the traditional knowledge. The Act further provides for a special ground of revocation of a patent if a material false statement or representation was knowingly made by the applicant.
This Act will make an enormous leap just by acknowledging the value of our biological and cultural diversity. But implementation will not be easy. Most communities do not realise the value of such information or their rights. A further obstacle is that this Act is only applicable to patents in South Africa and does not account for the possible exportation of this knowledge abroad and patenting the biological inventions there, where the market for most of the products far outweighs that in South Africa.
In contrast, the main purpose of the Biodiversity Act is the protection of our biological heritage, centered on a community-based approach that strives towards a system of equity. It regulates bioprospecting and exporting of indigenous biological resources to provide for the fair and equitable sharing amongst stakeholders.
The party undertaking bioprospecting must obtain a permit from the relevant issuing authority. The applicant must disclose all the information concerning the relevant bioprospecting including the indigenous biological resource that will be used. A permit is also required to export any indigenous biological resource for the purpose of bioprospecting or any other kind of research. The Biodiversity Act also provides strict guidelines with regard to benefit-sharing agreements.
Implementation of the Biodiversity Act will be challenging. The regulations drafted will hopefully propose innovative methods of streamlining a permiting scheme. Nonetheless it will be an enormous task to manage and track all the new bioprospecting activities in South Africa. The permiting scheme will hinge on the issuing authority's capacity to screen all applications for bioprospecting thoroughly and South African administrators are under huge resource constraints as it is.
While both these pieces of legislation go a long way to protect our biological cultural diversity, only time will tell whether the mechanisms that have been put in place are practical or sufficient.
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