Bio-prospecting Regulation comes into force as of 1 April 2008

The Minister of Environmental Affairs and Tourism, announced, on Friday 08 February 2008 in Government Gazette No. 30739, that the Regulations relating to Chapter 6 (Bio-prospecting, Access and Benefit Sharing) and Chapter 7 (permit system) of the Biodiversity Act (the Act) shall come into force as from 1 April 2008.

The purpose of these Regulations is to -

(a) further regulate the permit system set out in Chapter 7 of the Act insofar as that system applies to bio-prospecting involving any indigenous biological resources or export from the Republic of any indigenous biological resources for the purposes of bio-prospecting or any kind of research;

(b) set out the contents of, the requirements and criteria for benefit-sharing and material transfer agreements.

In terms of the Regulations, a bio-prospector must obtain a bio-prospecting permit. To obtain a bio-prospecting permit, the bio-prospector must enter into a material transfer agreement and/or benefit-sharing agreement with an organ of state, person or community which provides access to indigenous biological resources and/or traditional knowledge or use relating to the indigenous biological resource. 

In term of Section 86 of the Act, the Minister has also made the following exemption from Chapter 6 of the Act:

1. research other than bio-prospecting, provided that the research is conducted within the borders of South Africa and the research is not conducted for the purposes of commercial or industrial exploitation;

2. the export of ex situ indigenous biological resources for purposes of research other than bio-prospecting, provided the exporter has entered into an export agreement and notified the issuing authority thereof;

3. the trade of commercial products purchased from a bio-prospector, provided that the bio-prospector has complied with the Regulations on Bio-prospecting, Access and Benefit-sharing;

4. the keeping, breeding, cultivation, moving, trading and use of wildlife not directed at the development and production of –

4.1. products such as drugs, industrial enzymes, food flavours, fragrance, cosmetics, emulsifiers, oleoresins, colours and extracts; or

4.2. new plant varieties and products;

5. the collection, use, propagation cultivation or trade of indigenous biological resources for domestic use or subsistence purposes;

6. the artificial propagation, multiplication or cultivation of flora species for the local and international cut flower and existing ornamental plant markets;

7. aquaculture or mariculture activities involving fresh water and marine species producing specimens for consumption purposes.

Failure to comply with the Regulation may result in an appropriate fine, imprisonment not exceeding five years, or both. Provision is made for any person already involved in bio-prospecting to apply for a bio-prospecting permit within six months from 1 April 2008, that is by 1 October 2008.

If further information is required, please contact us.

William Modisakeng, PhD
Adams & Adams
wlliam-m@adamsadams.co.za