In a significant legislative shift, a presidential proclamation has retrospectively enacted the 2018 Plant Breeders’ Rights Act as of 1 June 2025, thereby repealing the long-standing 1976 Act. This reform is designed to modernize South Africa's legal framework for plant breeders’ rights, aligning it with international standards and contemporary challenges in agriculture.

The Act ensures South Africa meets its global commitments, particularly those under the International Union for the Protection of New Varieties of Plants (UPOV) and introduces new measures aimed to deter the intentional violation of plant breeders’ rights, promoting fair use and respect for Intellectual Property in plant varieties. By curbing the misuse of protected plant varieties, the legislation supports sustainable agricultural innovation and protects the interests of legitimate breeders.

What the new legislation delivers:

Farmers’ privilege typically refers to the right of farmers to save, use, and sometimes exchange seeds harvested from protected plant varieties without needing to pay royalties or get permission from the breeder. This is an exception to the general rule that plant breeders hold exclusive rights over new plant varieties they develop.

The new Act, in Section 10 thereof, gives the Minister of Agriculture broad authority to decide how the farmers’ privilege exception works. This includes inter alia choosing which types of “producers” are allowed to use protected plant varieties, which types of plants may be used, and the uses to which the protected plant variety may be put.

Under the new Act, the application and registration processes for plant breeders’ rights have been simplified, making it more efficient for breeders to secure protection, particularly as provisional protection is now automatically provided to an applicant from the filing date of an application.

The Act provides for broader protection than its predecessor by including varieties from all plant genera and species; unless explicitly excluded by specific legislation - provided they are new, distinct, uniform, stable, and have acceptable variety denominations.

The Act introduces improved procedures for evaluating plant materials within the framework of plant health regulations, enhancing biosecurity and market access.

What this means for farmers

South African farmers, particularly smallholder and emerging farmers are encouraged to become familiar with the new requirements and distinctions between protected and non-protected varieties. Understanding these rights will help avoid inadvertent infringement in preserving traditional farming practices while respecting breeders’ rights.

The streamlined rights process may also enable farmer cooperatives and agribusinesses to engage more easily with plant breeders or even consider registering new varieties developed through participatory breeding.

With the Act now in effect, Intellectual Property professionals play a critical role in supporting education amongst stakeholders, resolving disputes, and ensuring that the legal environment continues to support innovation and food security.

Whether you are:

• A breeder seeking protection for your new variety,
• A farmer wanting to understand your rights under “farmer’s privilege,” or
• A business navigating licensing or compliance issues,

an Intellectual Property attorney can help you avoid costly missteps and ensure your innovations - or practices - are fully protected under the law.