Regulations Take Root: Plant Breeders’ Rights Act 2018 Now in Effect

On Friday, 13 June 2025, the Minister of Agriculture published the Regulations regarding the new Plant Breeders’ Rights Act of 2018 (“PBR Act 2018“). The PBR Act of 2018, which replaces the Plant Breeders’ Rights Act 15 of 1976, was signed by the President in March 2019, but it only took effect on 1 June 2025.

 

In June 2022, the public was invited to comment on the draft regulations for the PBR Act 2018, and the Department also conducted public workshops with stakeholders in Pretoria and Cape Town. The delay in finalising the Regulations was undoubtedly a significant reason for the postponement of the commencement of the PBR Act 2018.

 

Taking a step back, the PBR Act 2018 regulates and manages plant breeders’ rights, which are intellectual property rights granted to unique plant varieties – meeting stipulated criteria – in the country.

 

The holder of a plant breeder’s right has the authority to grant various forms of licences for the commercial use of the variety within the territory, and this variety is entitled to statutory protection for a specified period.

 

PBR Act 2018

Under the PBR Act 2018, the Minister is required to publish regulations addressing various practical aspects of the Act, such as the manner in which an application for a plant breeder’s right should be submitted, the duration of a plant breeder’s right for specific categories of varieties, and details concerning a concept known as “Farmer’s Privilege”.

“Farmer’s Privilege” is an exception to a plant breeder’s right, granting a farmer a limited right to save and reuse propagating material, such as seeds, without infringing on the rights of the holder of a plant breeder’s rights.

 

As discussed in a previous article, this exception to plant breeders’ rights represents a delicate balancing act, especially in developing countries where traditional farmers preserve and reuse such propagating material. The key is to ensure that commercial farmers do not exploit this exception for commercial gain.

 

Regulatory Changes

Key regulatory changes include extending plant breeders’ rights for fruit trees, vines, sugar cane, and potato varieties to 30 years – a move which will be welcomed by stakeholders. Additionally, the sole right period for these varieties has been extended to eight years, benefiting breeders who spend considerable resources in cultivating new varieties.

 

A contentious issue within the Regulations concerns the practical implementation of the “Farmer’s Privilege” exception. The Regulations must specify which category of farmers may rely on this exception, the types of plant varieties to which it applies, and the conditions that would trigger the payment of royalties if the prescribed quantity for such varieties is exceeded.

 

Stakeholders in the fruit sector were adamant that this exception should not apply to protected fruit varieties where it is not standard practice to save the harvested material, namely the fruit, as propagating material. Saving harvested material is more common with seeds such as sorghum or oats. Unfortunately, the Regulations still extend this exception to protected fruit varieties.

 

However, the Department addressed stakeholders’ concerns and significantly limited the number of plants of protected fruit varieties that will not infringe upon a plant breeder’s rights.

 

For instance, the draft regulations referred to 100 trees of a protected fruit variety. In contrast, the Regulations now stipulate that a farmer using five or fewer plants of such a protected fruit variety will not infringe a plant breeder’s rights, subject to further conditions.

 

Lastly, the Regulations stipulate that the exception of a “Farmer’s Privilege” may not be utilised by a “Medium-Scale Commercial Farmer,” a “Large-scale Commercial Farmer,” or a “Mega/ Corporate Farmer,” as defined in the Regulations, with specific reference to the annual turnover thresholds. This clarification is welcome, as the draft regulations regarding these categories were vague.

 

This article focuses on key aspects of the Regulations, especially the “Farmer’s Privilege” exception. For more information, contact Christine van Zyl at christine@tgbattorneys.co.za.