1. NEGOTIATING MANDATES: PLANT IMPROVEMENT BILL
MEETING OF THE SELECT COMMITTEE ON LAND AND MINERAL RESOURCES (NATIONAL COUNCIL OF PROVINCES)
NOVEMBER 2017

2. SUMMARY PROVINCES SUPPORTING THE BILL WITHOUT ANY AMENDMENTS
PROVINCES SUPPORTING THE BILL WITH AMENDMENTS
PROVINCES NOT SUPPORTING THE BILL
PROVINCES UNDECIDED
North West
Free State
Eastern Cape
Northern Cape
Gauteng
Western Cape
Kwazulu Natal
Limpopo
Mpumalanga

3. EASTERN CAPE CLAUSE COMMENTS FROM THE PROVINCE DAFF RESPONSES
The province rejects the entire Bill based on the following reasons: 1
Definitions: The words “sell” and “new” are not properly defined in the Bill and are confusing
Sell has been defined.
New, where used in the bill, has the ordinary meaning.
Definition of “sell” is too wide and forces small scale farmers who had been sharing seeds, to trade, sell or buy seed to feed their families.
Bill limits seed sharing and reduce the rights of seed owners.
Removal of (b) which refers to “exchange” will provide a loophole which may be exploited by transgressors. Provision is made for smallholder farmers and small business in Exemptions (Clause 23). The Bill had made some exemptions for smallholder farmers to exchange unregistered and uncertified seeds. 2
The Bill is silent on indigenous plants.
The Bill only covers the plants declared in terms of the Bill, which may include indigenous plants when specifically requested to be declared.

4. EASTERN CAPE – CONT. CLAUSE COMMENTS FROM THE PROVINCE DAFF RESPONSES9
Concerns about the prescriptive nature of the Bill with respect to establishment of nurseries.
Type of business has to comply with certain minimum standards to ensure quality propagating material for food security. Details of requirements will be in Regulations. 11
The administration related to inspection of premises by the Registrar should not unnecessarily inconvenience small scale farmers.
Inspections to be on appointment and during office hours. Small scale farmers will mostly be exempted from requirement of registration.
9 & 23
There are too many regulations for people wanting to sell seeds or plants – it does not help the poor or starting up a small business.
The fact that farmers are to register and have a certificate is limiting people’s potential and is contrary to the “Vukuzenzele” call.
Exemptions in Clauses 19 and 23
Farmers only need to register if they want to operate a business as defined, otherwise the exemption in clause 23 is applicable.
12(3)
Concerned that the certificate is not transferable.
The operator of a business must be knowledgeable of the operations and requirements, hence a certificate is not transferable.

5. EASTERN CAPE – CONT. CLAUSE COMMENTS FROM THE PROVINCE DAFF RESPONSES33
Change “denomination” to “description”
Denomination refers to the variety name. The denomination is linked with the variety description and is a necessary to identify the variety. 43
Concern about consequences of obtaining a plant from another country.
Phytosanitary requirements for import of plant material are provided for in the Agricultural Pests Act and the Plant Health Bill. 45
Organic farming systems must be encouraged; the Bill only caters for industrial farming; organic farming is limited by law in rural areas.
Provision has been made for different schemes to be established which would address such needs. 60
Small scale farmers and cooperatives won’t be able to pay the fines.
Information and awareness programmes on the legislation will assist in terms of reducing the likelihood of transgressions by smallholder farmers and co-operatives.

6. EASTERN CAPE – CONT. CLAUSE COMMENTS FROM THE PROVINCE DAFF RESPONSES
 General
Registration costs are not stipulated in the Bill
Registration fees are seen as a tax that will limit growth of small scale agricultural enterprises.
Tariffs will be stipulated in the Regulations.
Ensure alignment with IP Act and Biodiversity Act
The Plant Improvement Bill does not deal with IP. The Province must clarify which provisions of the Bill have potential conflicts with the Biodiversity Act. In our consultations, no such conflicts were apparent.
It seems the Bill is driven by commercialization to the exclusion of small scale farmers.
The concern is that the Bill is intended for the benefit of commercial farmers only.
The Bill is intended to regulate propagating material traded commercially, hence the exemption provisions in Clauses 19 and 23 for small scale farmers.
The Bill is intended for the benefit of all.
Communities advise that Traditional Leaders must also be consulted in the process.
NHTL was consulted in 2013.
The Bill is not acceptable due to the socio-economic impact assessment not being done on how it will affect rural farming communities.
The Bills were in process long before the SEIAs process became mandatory and thus it was exempted from the SEIA process.

7. EASTERN CAPE – CONT. CLAUSE COMMENTS FROM THE PROVINCE DAFF RESPONSES
 General
Government must provide the special (expensive) facilities are required to do breeding and introduce means of protecting the people’s IP from theft.
Agricultural Research Council conducts breeding programmes as part of its core mandate. The protection of people’s intellectual properties is addressed by other legislation like IP Act, NEMBA BABS Regulations and the Indigenous Knowledge Systems Bill
Requirement of payment for all plant improvement processes is unfair. Suggestion that the registration fee should be reasonable and affordable to emerging and small scale farmers.
In terms of Section 45, the Minister may consult with the Minister of Finance on the establishment of schemes. This process can also provide for the consideration of different categories of tariffs.
Indigenous knowledge rights of communities must be protected in terms of royalties and associated beneficiation following the development and release of new varieties.
Protection of Indigenous Knowledge Systems (IKS) Bill and the BABS Regulations under NEMBA.
Independent researcher’s findings on the effect of GMO’s to small farmers and rural communities in general must be considered. People must be given opportunity to object against GMO varieties and have them removed from the varietal list.
Socio-economic and safety matters of GMOs are considered under the GMO Act

8. EASTERN CAPE – CONT. CLAUSE COMMENTS FROM THE PROVINCE DAFF RESPONSES
 General
The language used is difficult and cannot be easily understood by ordinary farmers. The bill should be in all official languages in light of it being a Sec. 76 Bill
Promotional information may be made available in the official languages in a user friendly format, especially for the purpose of empowering communities.
Concern of registered cooperation on lack of water and seed resources.
This matter falls outside the scope of this Bill. Such concerns should be forwarded to provincial department of agriculture as well as relevent municipalities.

9. FREE STATE CLAUSE COMMENTS FROM THE PROVINCE DAFF RESPONSES 1
Definition of sell: (b) should be omitted. The Bill criminalize the exchange of unregistered and uncertified seed in Clause 59.
Removal of (b) which refers to “exchange” will provide a loophole which may be exploited by transgressors. Provision is made for smallholder farmers and small business in Exemptions (Clause 23). The Bill had made some exemptions for smallholder farmers to exchange unregistered and uncertified seeds.
Clause 9(1)
Definition of business: Bill should provide for explicit exemption of small farmers. The provisions for exemption in Clause 9(1) read with Clause 19 (1) are inadequate.
The Department had made these exemptions in order to facilitate the participation of smallholder farmers and SMMEs in the seed sector. Further details will be in the Regulations.
Clause 19(1)
Define Non-commercial as “a person not making or attempting to make profit from the activity contemplated in section 19(1), commercial has a corresponding meaning”
These terms were never been defined in our law. In terms of the interpretation, words must be given their ordinary grammatical meaning, unless to do so result in absurdity. The ordinary meanings are very much clear

10. FREE STATE – CONT. CLAUSE COMMENTS FROM THE PROVINCE DAFF RESPONSES
Omit “must” and substitute with “may”
The provision of exemptions must be accompanied by an application process otherwise, this application cannot be at the discretion of the applicant. Otherwise illegal activities can continue.
Clause 23(1)(b)
Provides for private and non-commercial: It is proposed that after “private” to omit “and” and to substitute “or” to allow “private” use of seeds.
Don’t agree. The omission of “and” and substituting it with “or” will make the clause to lose meaning and thereby causing confusion. The clause should be retained as it stands.
Clause 27
The requirement for seed should include “variety” to promote genetically uniform seeds for industrial farming systems and to allow farmers’ varieties.
Clause 27 deal with the requirements for national listing. One criteria is uniformity of the variety. Farmer’s varieties would not be able to fulfil this criteria. Other department programmes deals with the conservation of farmers’ varieties.
The province must provide further clarity on the comment.
General
Create market for emerging farmers so that they can compete with commercial farmers
Addressed by other government programmes on trade and marketing

11. FREE STATE – CONT. CLAUSE COMMENTS BY PROVINCE DAFF RESPONSES General
Provide emerging farmers with inspectors for quality of their products
Existing DAFF support programmes are there to address this concern but a dedicated inspection service for emerging farmers is not feasible.
Allow emerging farmers to package their own products for job creation, poverty alleviation and economic development in rural areas
Farmers are free to do this as long as basic requirements are complied with.
Provide training to emerging farmers to assist them to comply with regulations
Existing DAFF support programmes addressed this concern
Imported plants must be checked and tested before distribution to farmers and the public.
The import control system is already in place for this purpose
Prohibit individuals from cutting or cultivate registered plants
The province must provide further clarity on the comment.
Regulate import and export pricing on plants
Government cannot regulate prices of commodities or goods. This is determined by market forces.

12. GAUTENG CLAUSE COMMENTS FROM THE PROVINCE DAFF RESPONSES Definitions
Definition of sell: be amended by deleting paragraph (b) thereof
Removal of (b) which refers to “exchange” will provide a loophole which may be exploited by transgressors.
Clause 2
The term “agricultural, industrial and forestry” be defined
“Agricultural” refers to crops to be used for food and other related matters. “Industrial” refers to crops to be used for non-food and other related purposes. The term “forestry” will be omitted.
Clause 15(1)(d)
Amend the clause to reflect that the date that must be reflected on new certificate issued is the date in the initial certificate of registration
DAFF is in agreement with the comments. The new certificate to be issued with 30 days.
Clause 19(1)
Amend to give Minister a guided discretion by introducing a non-exhaustive list that should be considered when determining whether or not to grant an exemption
Section 19 is drafted in a manner which gives the Minister broad discretion to determine the conditions for exemptions. This is useful for the provision to remain relevant in changing policy environment. A guided discretion would achieve the opposite.

13. GAUTENG – CONT. CLAUSE COMMENT FROM THE PROVINCE DAFF RESPONSES
Clause 39(4)(b) and Clause 49(4)(b)
Amend to make administration of an oath or affirmation to be mandatory rather than discretionary
Don’t agree. Taking of the oath or affirmation is a personal issue. Making it mandatory will be problematic.
Clause 60
Remove the 6 year imprisonment period in respect of offences under section 59(g), (h), (i)
Strengthening of penalties for transgressions was a result of inputs from stakeholders.
Clause 64
Include a clause to deal with the issue of regulating new applications made after the commencement date
Applications received after commencement date will be subject to the requirements of the Bill.
General
Rectification of clerical errors.
The province will need to provide further clarity in this regard.

14. KWAZULU-NATAL CLAUSE COMMENTS FROM THE PROVINCE DAFF RESPONSES
The scope of this legislation should only apply to seeds produced on a large scale and by the formal seed sector.
Bill makes provision for exemptions for smallholder farmers and smaller businesses, but allowing participation for those who want to.
Clause 23(1)(b)
The clause limits the saving of seeds to “own use” and thereby criminilises the activities of smallholder farmers in terms of exchanging seeds with one another
The Bill is only regulating the kinds of plants that are declared.
Exemption in Clause 23(1)(d) provides for small-scale “trade” or exchange of seed of kinds regulated by the Act.
Clause 23(2)(a)
Object to qualifying the use of unprotected varieties to a non-commercial scale as these are common heritage developed by thousands of farmers over time and should be freely available to anyone wishing to use them for cultivation or exchange.
Protected varieties are regulated by PBR Bill, hence the qualification that exemptions in this Bill only relates to varieties not protected by PBR.
What is considered a non-commercial scale needs definition.
Details will be provided in the Regulations.

15. KWAZULU NATAL – CONT. CLAUSE / SECTION COMMENTS BY PROVINCE
DAFF RESPONSES
Clause 23(2)(b)
Confining exemptions to unprotected varieties is unfairly discriminating against the smallholder practice of seed saving and re-use which may even inadvertently include some protected varieties
Protected varieties are regulated by the Plant Breeders Rights legislation and the necessary provisions relating to smallholder farmers are covered there.
Clause 52(1)(b)
Advisory Committee: One of the two members representing farmers should specifically represent the interests of smallholder farmers. The Advisory Committee should advise the Minister particularly in terms of provisions of the regulations
The Department focuses on all categories of farmers with a dedicated focus on smallholder farmers. It thus follows that the Minister would logically ensure that smallholder farmers are represented. Other issues affecting smallholder farmers such as conservation & IKS, is covered in s52(1)(d) & (e).

16. LIMPOPO CLAUSE COMMENTS FROM THE PROVINCE DAFF RESPONSES Clause 2(1)
Application of the legislation should ensure that all crops are covered for certification including traditional crops and varieties and these crops should be listed in Clause 24(2)
The Bill is only regulating the kinds of plants declared. This was done in order to address the concerns that government wants to regulate everything. Certification is voluntary and will be subject to the requirements of the relevant scheme.
Clause 36
The Registrar must call for applicants to motivate for their plant improvement varieties registration before they are rejected for national listing
All decisions of the Registrar are communicated to the applicants. There is a provision for the applicants to appeal these decisions if they are not happy about them.
Clause 45
The Bill must make provision, encourage and support plant improvement schemes by local communities especially on traditional crops
Bill provides for other types of schemes in addition to Certification Schemes of the formal commercial sector
Clause 60(1)
Clause (1)(a) and (b) must quantify the rand value of fine or indicate how the fine will be determined for adequate enforcement of penalties
The intention is for fines to be aligned to the Adjustment of Fines Act (Act 101 of 1991).

17. MPUMALANGA CLAUSE COMMENTS FROM THE PROVINCE DAFF RESPONSES
Definitions
Definitions: “Registrar” to read as follows: “Registrar” means the person contemplated in section 3(1) and must have regional offices in the provinces
Not supported by DAFF: Additional regional offices for the Registrar would lead to duplication of infrastructure and resources across the country. Greater consistency is achieved through the current centralized system.
Definitions: The definition of “sell” to be amended by deleting (b)
Removal of (b) which refers to “exchange” will provide loophole which may be exploited by transgressors.

18. NORTHERN CAPE CLAUSE COMMENTS FROM PROVINCE DAFF RESPONSE
Legislature supports the Bill, in terms of the correspondence dated 20 October They indicated that the negotiating mandate submitted in May 2017 should remain unchanged
Parliamentary Legal Advisors and the Committee should provide guidance as to how to deal with this matter, whereby the permanent delegate of the province indicated that they do not have a view on this Bill.

19. NORTH WEST CLAUSE COMMENTS BY PROVINCE DAFF RESONSES
The province supports the Bill with out any proposed amendments

20. WESTERN CAPE CLAUSE COMMENT FROM THE PROVINCE RESPONSE BY DAFF
The province does not support the Bill and propose reworking of the Bill especially with regard to the following: 1
Definition of sell now included the notion of “to exchange or to otherwise dispose of to any person…”
Propose (b) to be removed.
The definition for sell in the current Act does contain “exchange”; only the format was changed. However exemptions provide for smallholder farmers.
Clear definitions are required for “commercial”, “non-commercial” and “business” in order to exempt small holder farms
Reference to made to DAFF response to Free State Province
Clause 27
Clause 35
DUS requirements for listing of varieties are too stringent and will discourage or exclude smallholder farmers to register their own varieties. Proposing a secondary provincial varietal list enabling small scale and emerging farmers to exchange seed.
Exemptions in Clause 23 will enable smallholder farmers to continue their practices.

21. WESTERN CAPE – CONT. CLAUSE COMMENTS BY PROVINCE DAFF RESONSES
Import and export of a variety is only permitted if the importer has a registered business and the variety appears on the national or regional list. This requirement hinders informal exchange of seed across borders.
Exemptions in Clause 23 will enable smallholder farmers to continue their practices, subject to import conditions of the respective countries with regard to phytosanitary measures for quarantine diseases and pests.
General
The bill does not make provision for the protection and promotion of farmer’s varieties and criminalise the exchange of seed by farmers.
The purpose of the Bill is to regulate quality of plant propagating material (seed) for food security. Provision has been made in Exemptions for smallholder farmers and their practices.
Domination of the seed industry by multinational seed companies, by implication put the food security of RSA is in the hands of these companies. Submitted that the bill may compromise the constitutional right to food and nutritional security (Sec. 27 of Constitution)
Institutions such as the Competition Commission are mandated to ensure that dominance does not lead to collusion and unfair competition.
Any malpractices would be reported to the Competition Commission.

22. THANK YOU