Plant Breeders' Rights Act, 2018 (Act No. 12 of 2018)RegulationsRegulations made in terms of the Plant Breeders' Rights ActPlant Breeders' Right5. Exceptions to plant breeders' right |
| (1) | A plant breeder's right shall not be infringed by a farmer who, within reasonable limits and subject to the safeguarding of the legitimate interests of the breeders, uses the propagating material of the protected variety in accordance to subregulation (3). |
| (2) | For the purposes of section 10(2)(i) farmers are categorised into the following categories: |
| (a) | Household Farmer (Vulnerable): a farmer that produces primarily for household consumption and has limited resources and skills to operate a market-oriented production system. This category includes child headed households, and households producing in communal land and commonages that are registered as indigents or meet the criteria for registration as indigents with their municipality. |
| (b) | Household Farmer (Subsistence): a farmer that produces primarily for household consumption. These farmers are not or would not be classified as indigents by their municipalities. They may market limited surplus production with an annual turnover of less than R50 000. |
| (c) | Smallholder Farmer: a farmer or entity that produces (at primary, secondary, and tertiary levels) for household consumption and markets, therefore, farming Is consciously undertaken in order to meet the needs of the household and derive a source of income. These are usually the new entrants aspiring to produce for the market at a profit with a maximum annual turnover ranging from R50 001 to R1 million per annum. |
| (d) | Medium Scale Commercial Farmer: a an Individual or entity that that produces and sell agricultural commodities for the purpose to make a profit. These are established enterprises producing for market to make a profit with an annual turnover ranging from R1 000 001 -R10 million). They are eligible for VAT registration and requires a water use licence authorization in terms of the relevant national legislation. |
| (e) | Large Scale Commercial Farmer: an individual or entity that produces and sells agricultural commodities for the purpose of making a profit These are established enterprises producing for market to make a profit with an annual turnover ranging from R10 000 001- R50 million. They are eligible for VAT registration and requires a water use licence authorization in terms of the relevant national legislation. |
| (f) | Mega/Corporate Farmer: an individual or entity that produce and sells agricultural commodities for the purpose to make a profit. These are established enterprises producing for the market to make a profit with an annual turnover above R50 million. They are eligible for VAT registration and requires a water use licence authorization in terms of the relevant national legislation. |
| (3) | A plant breeder's right shall not be Infringed by: |
| (a) | A farmer included in subregulation (2)(a) and (b), who produces protected varieties for the kinds of plants listed in regulation 6 and save on their own holding, or exchange within categories in subregulation (2)(a) and (b) for propagating purposes the product of the harvest which they have obtained by planting, on their own holding the propagating material of such protected varieties. |
| (b) | A farmer included in subregulation (2)(c) who produces quantities of protected varieties for the kinds of plants listed in regulation 6 and save for propagation purposes, on their own holding, the product of the harvest which they have obtained by planting, on their own holding the protected variety of a kind of plant listed In regulation 6. |
| (c) | A farmer who produces quantities of protected varieties for the kinds of plants listed in regulation 6 in excess of the prescribed maximum quantities, and save for propagation purposes, on their own holding, the product of the harvest which they have obtained by planting, on their own holding the protected variety of a kind of plant listed in regulation 6 provided that such a farmer: |
| (aa) | has legitimately obtained propagating material of the protected plant variety concerned; |
| (bb) | notifies, in writing, the breeder or the holder of the plant breeder's right of the protected variety concerned as to the volumes of saved propagating material thereof; |
| (cc) | pays the breeder or the holder of the breeders' right of the protected variety concerned a reasonable remuneration for using the saved propagating material thereof, in compliance with market conditions, an amount which is equivalent to a reasonable royalty for the purchased propagating material of the same variety in the Republic and the remuneration payable shall be agreed upon by the breeder or holder of the plant breeder's right and the farmer in a written licence agreement in accordance to section 34; and |
| (dd) | preserves the identity of the protected variety at all times by clearly indicating on the label of any container containing saved propagating material of a protected variety the following information: |
| (i) | name of the kind of plant (crop); |
| (ii) | variety denomination (name) approved in terms of the Act; and |
| (ii) | name and address of the producer of the propagating material. |
| (4) | The exception to a plant breeder's right In terms of section 10(1)(d) does not apply to: |
| (a) | a farmer included in subregulation (2)(d) (e) and (f); |
| (b) | protected varieties of ornamental plants; and |
| (c) | any protected varieties of any kind of plant not listed under regulation 6. |