New plant breeders’ rights law takes effect in SA

Source: ©Tetiana Krupnikova via 123RF

The Department of Agriculture announced the commencement of the new Plant Breeders' Rights Act, 2018 (Act No. 12 of 2018) and its regulations with effect from 1 June 2025. This follows President Cyril Ramaphosa’s signing of the proclamation after the approval of the regulations by the Agriculture Minister.

The new Plant Breeders’ Rights Act 12 of 2018 was proclaimed in the Government Gazette on 6 June 2025, with effect from 1 June 2025, repealing the previous 1976 Act.

The updated Act is designed to bring South Africa’s plant breeders’ rights regime in line with the 1991 UPOV (International Union for the Protection of New Varieties of Plants) Convention. It introduces enhanced provisions on the protection of essentially derived varieties, compulsory licensing, and enforcement rights for breeders.

Importantly, the Act now allows protection for plant varieties of any genera and species — not only those previously prescribed — provided they are new, distinct, uniform, stable, and have acceptable denominations.

Other key revisions include extending protection periods to up to 30 years for fruit trees, vines, sugar cane and potatoes, and 25 years for all other crops. The establishment of an advisory committee comprising breeders, farmers, and intellectual property law specialists is also included.

Procedural changes and provisional protection

Key procedural updates include the introduction of automatic provisional protection from the date of filing a plant breeders’ rights application. Under the old Act, applicants were required to request provisional protection and undertake not to commercialise the variety while an application was pending.

Under the new Act, while applicants may not sue for infringement during this period, they are entitled to claim equitable remuneration from anyone exploiting the variety through acts reserved for the rights holder.

Expanded farmers’ privilege provision raises concerns

A significant change involves expanding the scope of the farmers’ privilege exception. The new Act gives the Minister of Agriculture the power to define which categories of producers may use a protected variety. This marks a departure from the narrower provision in the 1976 Act, which limited farmers’ privilege to the re-use of legitimately obtained harvested material for propagation on the farmer’s land.

The broadened scope has raised concerns within the plant breeding community, with debates around whether this could undermine breeders’ rights despite provisions requiring that the minister safeguard their legitimate interests.

The department noted the Act’s potential to enhance food security, support rural development, increase agricultural productivity, and foster job creation through investment in plant breeding innovation.

The scope and regulation of the farmers’ privilege exception are expected to remain a point of debate as regulations are developed.