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Plant Breeders’ Rights

‘Abraham Izak Perold’ is not a name that is immediately recognisable, except perhaps to a few cognoscenti. But, if you mention ‘Pinotage’, chances are it will strike a chord. Indeed, it is a particularly favoured red wine, in South Africa, whose production continues to increase in excellence and gain world recognition.

Well, Mr Perold was the first Professor of Viticulture at Stellenbosch University, and in 1925 he cross-bred a Pinot Noir grape vine with a Hermitage (Cinsaut) grape vine to produce just four seeds of ‘pinotage’. He planted the seeds in his private garden at the Welgevallen Experimental Farm – and seems then to have forgotten about them. At the end of 1927 he took up a position at KWV in Paarl and his garden was left to its natural overgrowth. As to how the four seedlings were saved, you will have to read the story.1 Let’s end it here by noting that, in 1991, at the International Wine and Spirit Competition in London, Beyers Truter was nominated for an International Winemaker of the Year award for his Kanonkop Pinotage – international success and recognition in less than 70 years.

Prof Perold had produced what is probably one of South Africa’s most iconic plant breeds. Unfortunately, the Plant Breeders’ Rights Act 19762 was not then in existence.

Falling under the authority of the Minister of Agriculture, Forestry and Fisheries the Plant Breeder’s Rights Act provides for rights of exclusivity to be granted in respect of new breeds of plants, for the protection of such rights, the grant of licences, and so forth. Effectively, it is administered by the Registrar of Plant Breeders’ Rights.3

A. False entries in the register

  1. Any person who makes a false entry in the register, or causes it to be made is guilty of an offence.4

  2. Any person who forges a copy of an entry in the register, or a document to be lodged with the Registrar commits an offence.5
  3. It is an offence to produce or tender (or cause to be produced or tendered) as evidence any such entry or any such copy.6

  4. Any person who makes a false statement or representation, or who furnishes false information to the Registrar is guilty of an offence.7

B. The Registrar, officials and proceedings

  1. Any person who obstructs or hinders the Registrar (or an official or any authorised person) in the exercise of his powers, or the carrying out of his duties under the Act is guilty of an offence.8

  2. If you are summoned to appear at any proceedings under the Act, you commit an offence if you fail to appear.9

  3. If you appear as a witness, but refuse to be sworn or to make an affirmation it is an offence.10

  4. If you refuse to produce any document, or answer any question you are guilty of an offence.11

  5. The Registrar (or a departmental officer or any other authorised person) has the power to enter premises, carry out inspections, take samples, and even seize certain articles. He can direct a person in control of, or an employee at such place (or vehicle) to produce documents, furnish information, etc. It is a criminal offence to fail to carry out any lawful order in this regard.12

  6. Any person who discloses information acquired by him in the course of his duties or in the performance of his functions under the Act is guilty of an offence.13

C. Provisional protection

  1. The Registrar may grant a ‘protective direction’, which is in force until the application for a plant breeder’s rights is either granted or refused.14 It gives the same protection, effectively, but there are some important conditions. One is that you must give a written undertaking15 not to sell any reproductive material (of the variety in question), and it is an offence if you breach this undertaking.16

D. False representation

  1. Any person who falsely represents that propagating material sold by him (for the purposes of propagation or multiplication) is propagating material of a variety in respect of which a plant breeder’s right has been granted under the Act, or that the propagating material originates from such a variety, is guilty of an offence.17

  2. Any person who, at the sale of propagating material (for the purpose of propagation or multiplication) uses a denomination which is different from the denomination registered in terms of the Act for the variety in question; or uses the registered denomination of another variety of the same kind of plant; or uses a denomination which corresponds too closely to a registered denomination that it is misleading, is guilty of an offence.18

E. Trafficking by officials

  1. The Registrar, or an officer carrying out duties under the Act, shall be guilty of an offence if he buys, sells, acquires or traffics in any plant breeder’s right or an interest therein.19

  2. He will also be guilty of an offence if he acquires, otherwise than in the course of his duties, or sells, any propagating material of a variety in respect of which a plant breeder’s right has been granted, or applied for.20

  1. www.pinotage.co.za ‘The Pinotage Story’. 

  2. As amended; the latest amendments effected by Act 88 of 1996. 

  3. The offices of the Registrar are at 253 Harvest House, 30 Hamilton Street, Pretoria (tel: 012 319 6226). 

  4. Section 45(1)(a). 

  5. Section 45(1)(a). 

  6. Section 45(1)(a). 

  7. Section 45(1)(b). 

  8. Section 45(1)(c). 

  9. Section 45(1)(d). 

  10. Section 45(1)(e). 

  11. Section 45(1)(e). 

  12. Section 24A(1). 

  13. Section 45(1)(i). 

  14. Section 14(1). 

  15. Section 14(2)(b). 

  16. Section 45(1)(h). 

  17. Section 45(1)(f). 

  18. Section 45(1)(g). 

  19. Section 46(1)(a). 

  20. Section 46(1)(b).