The long-awaited new South African Plant Breeders’ Rights Act No. 12 of 2018 (the New Act) came into operation as of 1 June 2025, and following the publication of Regulations to the new Act on 13 June 2025, the New Act is in force. The New Act repeals the Plant Breeders’ Right Act No. 15 of 1976 (the Old Act).

As from 13 June 2025, all new Plant Breeders’ Rights (PBR) applications must be filed in terms of the New Act, and will fall under the provisions of the New Act.

Aligning to international conventions

One of the main aims of the New Act is to bring South Africa’s Plant Breeders’ Rights (PBR) Laws into line with the 1991 Act of the UPOV Convention. In this regard, the New Act now applies to all plant genera and species.

The New Act increases the protection afforded to PBR owners significantly, by:

  1. Increasing the term of protection for specified fruit trees, vines, sugar cane and potatoes to 30 years, and 25 years for all other crops, calculated from the date of registration.
  2. Removing the so-called “Farmer’s Privilege from “Medium Scale Commercial”, “Large Scale Commercial” and “Mega/Corporate” Farmers. The Farmer’s Privilege still applies to “Vulnerable Household” and “Subsistence Household” Farmers who may not only save propagating material but also exchange propagating material, but only in respect of certain types of plants and for a maximum amount of material.
    The types of plants and amounts are provided for in Regulation 6. The listed are in the Agricultural and Vegetable Crops, and also Fruit Crops. The Farmer’s Privilege still applies to “Small Holder” Farmers who may save propagating material, but only in respect of certain types of plants and for a maximum amount of material.A farmer who produces quantities of protected varieties for the kinds of plants listed in excess of the maximum quantities prescribed in Regulation 6 may save propagating material, but inter alia needs to notify the PBR owner of the volumes of propagating material saved and pay the PBR owner a reasonable royalty on the material saved. Definitions are provided in the Regulations for the different types of farmers.The types of plants and amount of material are listed in Regulation 6. The amount of material has been reduced considerably compared to the amount of material originally proposed in the draft Regulations. For example:
    Groundnut is reduced from 2000kg to 50kg,
    Zea Mays L. is reduced from 3000kg to 12kg
    Fruit Crops is reduced from 100 to 5 per kind.
  3. Making the infringement of a PBR a criminal offence – A person convicted of such an offence will be liable to a fine infringement for a period not exceeding 10 years, or both such fine and imprisonment.
  4. Extending the period of “Sole Right” (the period during which the Registrar may not issue a compulsory licence), for fruit trees, vines, sugar can and potatoes to 8 years, and for all other crops from to 5 years.
  5. Grants provisional protection automatically on application.

Under the Old Act it was necessary to submit plant material for most types of plants, for DUS testing in South Africa. The was a time limit of 12 months for making material available for DUS testing, but was possible, at the Registrar’s discretion, to extend the deadline for submitting plant material indefinitely.

In terms of the New Plant Breeders’ Rights Act, in the case of potatoes, trees and vines, the required amount of plant material must be made available for tests and trials within 5 years from the filing date and the applicant or agent must deliver the material to the office of the Registrar or inform the Registrar of the location of the material as applicable, and in the case of all other crops, the required amount of plant material must be delivered to the office of the Registrar within 24 months from the filing date. It is possible to apply to the for an extension not exceeding the initial period, and in the event of imported material. The application must be accompanied with a sworn affidavit as proof that the plant material has been imported into the Republic.

Further notable changes are that the New Act:

  • Provides clarity that protection extends to a product made directly from harvested material.
  • Clarifies that the acts of Conditioning plant material constitute an infringement.
  • Provides clarity on certain acts (relating to multiplication, transfer of ownership and testing) that will not constitute a “sale”, relevant to the novelty requirements of a PBR application.
  • The annual fee must be paid by 31 March each year, with a six-month extension of time available.

More detailed information on these changes is provided below.

1. Prescribed List of Plants in the Plant Breeders’ Rights

The New Act applies to all plant genera a species (there is no longer a prescribed list of plants as the was under he Old Act). This is a step that brings the new Act into line with the UPOV 1991 Act.

2. Duration

Under the Old Act, the duration of a plant breeders’ right was 25 years in the case of vines and trees, and 20 years in all other cases calculated from the date of grant.

In terms of the New Act and Regulations, the Increasing the term of protection for fruit trees, vines, sugar cane and potatoes specified in Table 2 of the Regulations (below) to 30 years, and 25 years for all other crops, calculated from the date of registration.

3. Exceptions to Plant Breeders’ Rights – “Farmer’s Privilege”

The “Famer’s Privilege” provisions of the Old Act have been replaced with a new Section and Regulations which provide for certain categories of farmers who may use the protected variety, categories of plants that may be used, the uses to which the protected variety may be put, and, where applicable, conditions for payment of royalties and labelling requirements.

Regulation 5(2) defines six categories of farmers:

a) Household Farmer (Vulnerable): a farmer that produces primarily for household consumption and has limited resources and skills to operate a market-oriented production system. This category Includes child headed households, and households producing In communal land and commonages that are registered as Indigents or meet the criteria for registration as indigents with their municipality.

b) Household Farmer (Subsistence): a farmer that produces primarily for household consumption. These farmers are not or would not be classified as indigents by their municipalities. They may market limited surplus production with an annual turnover of less than R50 000.

c) Smallholder Farmer: a farmer or entity that produces (at primary, secondary and tertiary levels) for household consumption and markets, therefore, farming is consciously undertaken in order to meet the needs of the household and derive a source of income. These are usually new entrants spiring to produce for the market at a profit with a maximum annual turnover ranging from R50 0001 to R1 million per annum.

d) Medium Scale Commercial Farmer: an individual or entity that produces and sells agricultural commodities for the purpose to make a profit. These are established enterprises producing for the market to make profit with an annual turnover ranging from R1 000 001 – R10 million). They are eligible for VAT registration and requires a water use licence authorisation in terms of the relevant national legislation.

e) Large Scale Commercial Farmer: an individual or entity that produces and sells agricultural commodities for the purpose to make a profit. These are established enterprises producing for the market to make profit with an annual turnover ranging from R10 000 001 – R50 million). They are eligible for VAT registration and requires a water use licence authorisation in terms of the relevant national legislation.

f) Mega/Corporate Farmer: an individual or entity that produces and sells agricultural commodities for the purpose to make a profit. These are established enterprises producing for the market to make profit with an annual turnover above R50 million). They are eligible for VAT registration and requires a water use licence authorisation in terms of the relevant national legislation.

Regulation 5(3) provides that a PBR will not be infringed by:

a) A farmer included in sub-regulation 2(a) and (b) (i.e. Subsistence and Vulnerable Household Farmers), who produces protected varieties for the kinds of plants listed in Regulation 6 and save on their own holding, or exchange within categories in sub-regulation 2(a) and (b) for propagating purposes the product of the harvest which they obtained by planting, on their own holding the propagating material of such protected varieties.

A copy of Regulation 6 is below.

b) A farmer included in sub-regulation 2(c) (i.e. Small Holder Farmrs), who produces protected varieties for the kinds of plants listed in Regulation 6 and save for propagation purposes on their own holding, the product of the harvest which they obtained by planting, on their own holding the protected variety of a kind of plant listed in Regulation 6.

c) A farmer who produces quantities of protected varieties for the kinds of plants listed in excess of the maximum quantities prescribed in Regulation 6 may save material for propagating on their own holding, but inter alia needs to notify the PBR owner of the volumes of propagating material saved and pay the PBR owner a reasonable royalty on the material saved.

d) The “Farmer’s Privilege” does not apply to farmers included in sub-regulations 2(d), (e) and (f0, i.e. it does not apply to Medium Scale, Large Scale and Mega/Corporate Commercial Farmers. Further, it does not apply to ornamental plants or any plants not listed in Regulation 6.

4. Criminal Offence

Infringement of a Plant Breeders’ Right is now a criminal offence. A person convicted of such an offence will be liable to a fine infringement for a period not exceeding 10 years, or both such fine and imprisonment. The Magistrates Court has jurisdiction to impose the penalty.

The Registrar of Plant Breeders’ Rights may obtain a warrant (issued by a Magistrate) to inspect any premises where there is suspicion of infringement of a Plant Breeders’ Right. During the inspection, the Registrar may take samples and seizes plants, propagating material, substances, books and records.

5. Term of Sole Right

The period of “Sole Right” (the period during which the Registrar may not issue a compulsory licence), for fruit trees, vines, sugar can and potatoes specified in Table 2 from 5 years to 8 years, and for all other crops from 3 years to 5 years.

6. Provisional Protection

Provisional Protection is granted automatically on application for a PBR. Under the Old Act, an applicant had to make a request for provisional, and give an undertaking that, while the provisional protection was in force, it would not sell or consent to sell reproductive material of the variety in South Africa.

7. DUS Tests and Trials

The Regulations provide that material for tests and trials must be provided to the Registrar:

  1. In the case of potatoes, trees and vines, the required amount of plant material must be made available for tests and trials within 5 years from the filing date and the applicant or agent must deliver the material to the office of the Registrar or inform the Registrar of the location of the material as applicable;
  2. In the case of all other crops, the required amount of plant material must be delivered to the office of the Registrar within 24 months from the filing date; and
  3. The specific of amounts of material to be submitted is obtainable from the office of the Registrar.

It is possible to apply to the for an extension not exceeding the initial period stipulated In subsection 18(1); and in the event of imported material, the application must be accompanied with a sworn affidavit as proof that the plant material has been imported into the Republic.

8. Protection of Harvested Material

The New Plant Breeders’ Rights Act includes a definition of plant material: in relation to a variety, material means:

a) any propagating material;
b) harvested material, including an entire plant or any part of a plant; or
c) any product made directly from the harvested material.

该定义明确指出，保护仅适用于直接由收获材料制成的产品。

9. Conditioning

A definition has been inserted into the New Act for the term “Conditioning”: in relation to propagating material of a plant variety, conditioning means:

a) cleaning, drying, coating, sorting, grading or packaging of the material;
b) testing for germination and vigour; or
c) any other similar treatment,

undertaken for the purposes of preparing the material for propagation or sale

10. Sale

In terms of the novelty requirements under New Act, the following actions do not constitute a sale of material:

a) 销售的唯一目的是让该人代表育种者繁殖该植物品种的植物材料；
b) 根据销售协议，新植物材料的所有权在材料成倍增加后立即归属育种者；或者
c) the sale is part of an agreement under which the person agrees to use plant material of that variety for the sole purpose of evaluating the variety in one or more of the following tests or trials;

    1.  field trials;
    2. laboratory tests;
    3. small-scale processing; or
    4. tests or trials prescribed for the purposes of this paragraph.

11. Payment of Annual Fees:

The annual fee must be paid by 31 March each year, with a six-month extension of time available.

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