July 2025 A new system for plant variety rights (otherwise known as plant breeder’s rights) in South Africa came into force at the beginning of this month.
The new system replaces the 1976 Plant Breeders’ Rights Act and intends to bring South Africa into compliance with the International Union for the Protection of New Plant Varieties (or UPOV). However, what is more interesting is how many parallels the new system draws to the existing EU plant variety rights system, making it a welcome reminder of how the EU plant variety rights system operates.
The new system introduces many changes, all of which took effect from 1 June 2025, although the regulations were not actually published until 13 June 2025. An example of one the changes, which aims to bring the system into compliance with the UPOV legislation, is that all plant species are now eligible for Plant Breeders’ Rights (PBR) protection.
However, as mentioned above, many of the changes go further than the UPOV obligations, echoing features of the EU Regulation on Community Plant Variety Rights. For example, UPOV sets a minimum duration 25 years protection for trees and vines, and 20 years for all other plants. Whilst many other countries (including the United States, Australia, and Nigeria) follow the duration set by UPOV, the EU Regulation is more generous than UPOV and offers 30 years of protection for trees and vines and 25 years for all other species. In 1996, the 30-year protection in the EU was extended to potatoes and, in 2021, the 30 years was extended to asparagus, flower bulbs, woody small fruits and woody ornamentals.
The new South African system mirrors the EU system and also provides a longer duration of protection. Under the new Regulations, South Africa will provide 30 years of protection for fruit trees, vines, sugar cane and potatoes. All other species will receive 25 years of protection from the date of registration.
In South Africa, new varieties will also automatically receive provisional protection as soon as the Plant Breeder’s Rights application is filed, as is the case in the EU. Similarly to the EU, during the provisional protection period, the applicant will only be entitled to claim “equitable remuneration” for the exploitation of the variety.
The new law in South Africa also increases the period of “sole rights”. During the “Sole Rights” period, the Registrar cannot grant a compulsory licence to the variety. Under the new Regulations, the period of sole rights is 8 years for fruit trees, vines, sugar cane and potatoes, and 5 years for all other species.
In addition to the civil remedies for infringement (i.e. compensation), the new law in South Africa also makes infringement of Plant Breeders’ Rights a criminal offence which may result in a fine or imprisonment for up to 10 years, or both.
The new legislation also brings restrictions to the Farmers’ Privilege exemptions in South Africa, similar to those in place in the EU.
