4.5 South Africa: Benefit Sharing

The South African legislation stipulates that prior to a benefit sharing agreement being approved, the Minister must satisfy himself that the agreement is fair and equitable to all parties (Rule 17). The benefit sharing agreement is a prescribed form (Annex 8 to the Regulations). According to article 9 of the annex, “benefits will vary considerably from case to case and in particular, benefits will vary depending on whether the stakeholder is providing access to the indigenous biological resources or is an indigenous community”. The article thereafter gives a list of monetary and non-monetary benefits that may arse from bioprospecting projects. Parties to the agreement are required to tick each box of the benefits that applies to the agreement and thereafter are required to give details of who is the beneficiary of each benefit and the extent of the benefit. The non-monetary benefits in the list include:

1. acknowledgement of parties giving access to resources;
2. research results and copies of papers;
3. support for conservation;
4. species inventories;
5. student training and support;
6. scientific capacity development;
7. technology transfer;
8. joint research;
9. information;
10. equipment and infrastructure ongoing communication of bioprospecting objectives, methods and findings, translated into local languages;
11. simplified and popularised posters, manuals, pamphlets and other documents translated into local languages;
12. co-authorship of publications;
13. access to research data;
14. copies of photographs and slides;
15. inclusion on the research of local collaborators, assistants, guides and informants;
16. training of local people as appropriate in relevant scientific, legal and management issues;
17. depositing of voucher specimens with national institutions;
18. participatory research;
19. access to international collections by South Africans; recognitions and promotions of traditional knowledge;
20. community development projects;
21. environmental education; and,
22. co-ownership of any intellectual property rights.

Examples of monetary benefits given in the annex are fees; royalties; upfront payments; and, milestone payments.

In terms of custodianship of benefits, section 85 of the National Environmental Management: Biodiversity Act, 2004 establishes a Bioprospecting Trust Fund. The purpose of this fund is to receive all monies arising from benefit-sharing agreements and material transfer agreements, and due to stakeholders. The monies paid into this fund are trust money within the meaning of the South African Public Finance Management Act and the fund is managed by the Director General and in a prescribed manner.

Rule 19 of the Bioprospecting, Access and benefit Sharing Regulations provide details of how the Benefit Sharing Fund is required to be managed. Key among these provisions is that the Director General may charge a reasonable fee for the administration of the money received in terms of the benefit sharing agreement. The Director General is under obligation to advise parties to a benefit sharing agreement of any monies received into the fund and the amount due to each stakeholder, and distribute the monies accordingly. Finally, surplus monies in the fund, not due to any party are required to be applied to conservation purposes, supporting further research on indigenous biological resources and indigenous knowledge, building the capacity of indigenous communities and enhancing scientific knowledge and technical capacity to conserve, use and develop indigenous biological resources.

The Bioprospecting Trust Fund is used solely to receive and distribute monetary benefits. Non-monetary benefits are not distributed through the fund.

Next section: 5. Compliance Mechanisms