Plant Breeders’ Rights (PBR) are a form of intellectual property (IP) protection granted to plant breeders who develop unique and novel plant varieties. Under PBR, breeders gain exclusive control over the commercial use of their creations, including the production, distribution, and sale of reproductive materials like seeds or cuttings for a specified duration. A plant breeder’s right cannot be renewed. After the expiry of the full protection period of the plant breeder’s right, the variety becomes public property and anyone may then propagate and sell it. By securing these rights, PBR fosters advancements in agricultural research and incentivises continued investment in plant breeding.
The Plant Breeders’ Rights Act No. 12 of 2018 (PBR Act 12/2018) is a South African law that provides legal protection for new plant varieties, ensuring that plant breeders receive exclusive rights to their creations. The 2018 Act replaces the older Plant Breeders’ Rights Act of 1976, bringing South Africa in line with the International Union for the Protection of New Varieties of Plants (UPOV). PBR Act 12/2018 introduced significant updates to align with international standards, of the International Convention for the Protection of New Varieties of Plants (UPOV 1991), strengthening IP rights for plant breeders while introducing new exceptions and enforcement mechanisms.
The decade long process was initiated with the Bill being introduced to Parliament in 2015. Public participation took place, and the Bill was passed by Parliament in 2018, and signed off by President Ramaphosa in March 2019. Following which, draft regulations were published and after the commenting process, the Act came into effect on the 1st of June 2025, with the regulations published shortly thereafter.
Here are the key changes in the PBR Act 12/2018:
- The Act now extends protection to harvested material such as fruits and flowers and products derived from them. It also covers essentially derived varieties (EDVs). EDVs are defined as varieties predominantly derived from an initial variety but distinct enough to qualify for separate protection. EDVs require authorisation from the original breeder for commercialisation, thus preventing minor modifications of protected varieties to bypass rights.
- The duration of a plant breeder’s right now ranges between 20 – 30 years, depending on the plant type. Periods are prescribed by regulation, allowing more flexibility. Validity periods are as follows:
- 20 years for trees and vines.
- 25 years for other crops and plants.
- 30 years for certain long-cycle crops.
- In addition, the new Act now has explicit inclusion of provisional protection, meaning there is now better enforcement of protection duration; breeders can claim rights and have provisional protection starting from the application date, and not just the grant or registration date.
- Explicit “Farmers’ Privilege” with the regulations stating that small-scale farmers may save and replant seeds of protected varieties for their own use, but not for sale, subject to conditions (for example; royalty payments for commercial reuse). The exception of a “Farmer’s Privilege” does not apply to medium and large-scale commercial farmers, who may need a license for seed saving. However, breeders and researchers can use protected varieties to develop new plants without infringement, unless the new variety is an EDV.
- The new Act has introduced stronger deterrents and enforcement mechanisms with stricter penalties:
- Fines and imprisonment for violations with a sentence of up to 10 years for commercial-scale violations.
- Border control measures which allow customs to seize counterfeit or illegal plant material.
- Civil and criminal liability for intentional infringement.
- The application and examination process now offers more rigorous distinctness, uniformity, and stability (DUS) testing, and faster processing with digital submissions.
It is important to note that transitional provisions apply to existing rights under the 1976 Act, which remain valid but are governed by the new Act. Applications pending in 2018 are processed under the 1976 Act.
The PBR Act 12/2018 has clearer public interest requirements and criteria for compulsory licenses, ensuring equitable compensation to breeders, and international recognition for South African plant varieties. In addition, it significantly modernises South Africa’s PBR framework, balancing breeders’ IP rights with public-interest safeguards.
A study conducted by Netnou–Nkoana et al. (2015) found that out of the total number of 187 respondents within the farming community, “57% indicated that they had never heard of the Plant Breeders’ Rights Act before, 18% were familiar with the Act and 25% had heard of the Act but did not quite understand the provisions of the Act and how it impacted on them and their farming practices.” With the 1976 Act only available in English, the PBR Act 12/2018 has been published in both English and Tshivenda to ensure accessibility and to promote equitable access to information.
At Tshaya Mashabela Attorneys, we provide specialised legal services to protect your agricultural innovations through PBR registration and enforcement. Our expert team guides breeders, agribusinesses, and research institutions through South Africa’s PBR system to safeguard their plant varieties and maximise their commercial potential. Protect your agricultural innovations by contacting us for a consultation.
Author: Ntombi Nondaba | Marketing Officer
Approved by: Tumelo Mashabela | Managing Director and Registered Patent Attorney
References:
- Plant Breeders’ Rights Act No. 12 of 2018
- Plant Breeders’ Rights Act No. 15 of 1976
- Netnou-Nkoana NC, Jaftha JB, Dibiloane MA, Eloff J. Understanding of the farmers’ privilege concept by smallholder farmers in South Africa. S Afr J Sci. 2015;111(1/2), Art. #2013-0344, 5 pages.
