3.3.5 South Africa: Access Permits and Agreements
The South African legislation and regulations prescribe different permits and agreements. There are three kinds of permits that a person seeking access to indigenous biological resources in South Africa may apply for and be issued with depending on the reasons for access. These are bioprospecting permits (Section 87(c), export permits (Section 87(d) and integrated export and bioprospecting permits (Section 92). In terms of agreements, an applicant to access an indigenous biological resource may enter into a benefit sharing agreement (section 83) or a material transfer agreement (section 84). All these are in prescribed forms and contain both express and implied conditions.
A bioprospecting permit is defined in Rule 1 of the Bioprospecting, Access and Benefit Sharing Regulations as a permit issued to engage in the discovery phase and/or commercialisation phase of a bioprospecting project. A bioprospecting permit is issued by the Minister who is the designated issuing authority (Rule 6 (1)(a)). Before a bioprospecting permit is issued, it is a requirement (Rule 8) that the Minister must satisfy himself that the relevant stakeholders have been identified; that there has been disclosure of relevant information to all stakeholders that have been identified; that the applicant has obtained prior consent of any person that he is required to obtain prior consent from; and that benefit sharing agreements and material transfer agreements have been entered into with the stakeholders. A bioprospecting permit is applied for and issued in a prescribed form and contains both express and implied conditions (See Annexures 2 and 4 of the Regulations).
Export permits are issued either for research other than bioprospecting, or for bioprospecting. When issued for bioprospecting purposes, export permits are issued as integrated export and bioprospecting permits. Rule 1 of the regulations defines an export permit for research other than bioprospecting. The Members of the Executive Council (MEC) is the designated issuing authority for export permits, if the indigenous biological resources are being exported for research purposes other than bioprospecintg, and the indigenous biological resources to be exported are collected, gathered or curated in that province (Rule 6(2)). Prior to issuance of an export permit for research other than bioprospecting, the issuing authority must satisfy itself that the export of the relevant indigenous biological resource will be for a purpose that is in the public interest, including the conservation of biodiversity in South Africa, the economic development of South Africa or enhancing the scientific knowledge and technical capacity of South African people and institutions (Rule 13). An export permit for research other than bioprospecting is issued in a prescribed form and contains both express and implied conditions (See Annexures 3 and 6 of the Regulations).
Integrated export and bioprospecting permits are issued to export indigenous biological resources for the purpose of bioprospecting (Rule 1). The issuing authority for integrated export and bioprospecting permits is the Minister responsible for environment (Rule 6(1)(b)). According to the rules, an integrated export and bioprospecting permit may only be issued if the Minister is satisfied that the export of indigenous biological resources for bioprospecting will be for a purpose that is in the public interest. This includes conservation of biodiversity in South Africa; the economic development of South Africa; or enhancing the scientific knowledge and technical capacity of South African people and institutions (Rule 12). While there are numerous conditions that are attached to the permit, some of which are express and others implied by the law, the following are salient (Rule 12(f)):
- All money due to stakeholders from a benefit sharing agreement must be paid into the Bioprospecting Trust Fund;
- The permit-holder must, on an annual basis, submit a status report to the Minister in a format determined by the Minister;
- The permit-holder will be liable for the costs of mitigating or remedying the impact of the bioprospecting on the environment; and
- The indigenous biological resources to which a permit relates may not be sold, donated or transferred to a third party without the written consent of the Minister.
A benefit sharing agreement is defined in Rule 1 of the Regulations as an agreement in the prescribed form, concluded between an applicant for a permit and a stakeholder, which provides for sharing by the stakeholder in any future benefits that may be derived from the bioprospecting to which the application relates. According to Rule 17 and the definition, the parties to a benefit sharing agreement are the applicant and the stakeholder. A stakeholder here means either a person, including any organ of state or community, providing or giving access to the indigenous biological resources, or an indigenous community in terms of section 82(1) of the National Environmental Management: Biodiversity Act, 2004.
A benefit sharing agreement must be approved by the Minister prior to its conclusion and the he must satisfy himself that the agreement is fair and equitable. In doing so, the Minister may, if he deems fit, consult any person competent to provide technical advice on the agreement; and may also invite public comment on the agreement provided that no confidential information is made public. Further, the agreement must make provision for enhancement of scientific knowledge and technical capacity of the stakeholder, and for any other activity that promotes the conservation, sustainable use and development of the relevant indigenous biological resources (Rule 17(4)). Finally, it is a requirement that a benefit-sharing agreement must be lodged with the Director General by the permit holder upon the agreement being concluded.
Other than meeting the prescribed requirements under Section 84, the Act does not provide specific conditions that the Minister may impose prior to approving a material transfer agreement. However, it is important to note that under Section 84(1)(b)(vii) there is a requirement that the agreement must state conditions under which the recipient may provide any such indigenous biological resource, or their progeny, to a third party. These conditions are not stipulated in the law.
Next section: 4. Benefit Sharing