The Plant Breeder’s Rights Act 12 of 2018: Commencement at last, but clarity still lacking
On 6 June 2025, it was announced by the Minister of Agriculture in terms of Government Gazette 52815 that the Plant Breeders Rights Act 12 of 2018 (the 2018 Act) came into operation on 1 June 2025. The 2018 Act repeals and replaces the Plant Breeder’s Rights Act 15 of 1976 (the 1976 Act). The protection afforded to a new unique plant variety to be introduced in South Africa may be provided in the form of an intellectual property right, known as a plant breeder’s right, registered in the name of the owner of the variety in the territory. This right provides the owner of a variety (that meets the qualified criteria) with the right to grant various forms of licenses for the commercial use of the variety in the territory and to collect remuneration in the form of royalties for such use for a stipulated period. The 1976 Act provided the regulatory system in terms of which plant breeder rights were granted and managed prior to 1 June 2025.
The making of the 2018 Act spanned a considerable period with the predecessor Bill introduced in Parliament in 2015. The Bill was passed in 2018 and sent to the President to sign and assent to – which he only did in March 2019, bringing into effect the 2018 Act. The 2018 Act however made a specific provision that the operation thereof would only come into operation on a date to be announced by the Minister which is to be published in the Government Gazette. A possible reason for the delay in the publication of the Act was undoubtedly the need for regulations, providing practical detail on the operation of the Act, to be finalised.
South Africa is a member of the International Union for the Protection of New Varieties of Plants (UPOV) but the country has only signed the 1978 Act of the UPOV Convention and has not yet signed the latest 1991 Act of this Convention (1991 UPOV Convention). Although it was not specifically stated that the repeal of the 1976 Act was to align it with the 1991 UPOV Convention, we do see many similar provisions mirrored in South Africa’s 2018 Act. A key aspect for the repeal of the 1976 Act was to broaden the protection afforded to more plant species, strengthen penalties for the abuse of protected varieties and to provide clarity on the concept known as “farmer’s privilege” – allowing a farmer a limited right to save and re-use seeds without infringing on a plant breeder’s rights. Farmer’s privilege is a sensitive balancing act in developing countries especially between preserving traditional practices such as seed saving and the reuse of such seeds, and the interests of a breeder of a variety who has a vested right in the commercial use of such variety.
In brief, some of the key differences between the 1976 Act and the 2018 Act to take note of, relates to the introduction of “exhaustion of plant breeder’s right”, a provision which mirrors the text of the 1991 UPOV Convention. In terms of the 2018 Act, the granting of immediate “provisional protection” of a variety is afforded on the filing of an application for a plant breeder’s right, which would allow the applicant (subject to specific conditions) to be remunerated if a third party commercially exploits the variety during the provisional protection period. The 2018 Act furthermore stipulates that the Minister must clarify in regulations to be published, the scope of the exception to a plant breeder’s right (colloquially known as farmer’s privilege), stipulating for instance the categories of farmers that may rely on this exception, the categories of plants that may be used and in certain circumstances the payment of royalties. A person found guilty of an offence under the 2018 Act may face imprisonment for up to 10 years and/or a fine.
It is critical to note that the 2018 Act is quite specific about the detail that must be published in regulations, which effectively relates to the practical scope of the operation of the Act. This includes the manner and form in which applications for a plant breeder’s right must be made, and as stated earlier, specifically the scope of the farmer’s privilege to be exercised as an exception to a plant breeder’s right. To this extent the Department did publish draft regulations for public consultations in June 2022, and has organised various public workshops on the regulations, but since the commencement of the 2018 Act, being 1 June 2025, has failed to publish such regulations. It is furthermore important to stress that the publication of such regulations in terms of the 2018 Act is prescriptive and places a clear positive obligation on the Minister to do so.
As of 12 June 2025, the Minister is yet to publish these important regulations. These regulations should have come into effect on the same day the 2018 Act commenced, as this would otherwise create uncertainty. Once these regulations are published in the Government Gazette, which is expected to occur within the next two weeks, a further article shall be posted to reflect commentary on these regulations.
*This article reflects information available on 12 June 2025 and may be updated.
