Exploring South Africa’s legislation on access to indigenous biodiversity and traditional knowledge

16 Jul 2024 --- Natural resources and traditional knowledge are essential sources of inspiration for new product development in nutrition, supplements and herbal medicine. The international community has recognized the need to promote biodiversity and fair and equitable benefit-sharing with communities in the raw materials’ sourcing areas and developed a global legal framework — the Nagoya Protocol.

South Africa is one of over 140 countries that have ratified the framework. In this special series, Nutrition Insight examines the country’s legal system governing access to indigenous biodiversity and associated traditional knowledge with South Africa-based Parceval, a distributor and manufacturer of herbal medicines and botanical extracts. 

Although this legal system provides clarity, Ulrich Feiter, CEO of Parceval, and Avril Harvey, special projects manager at the company, underscore it is rigid and cumbersome. 

Harvey illustrates that South Africa’s market is unstructured and informal, while the legislation is a rigorous framework. “It’s not structured the way the legislation is structured — it needs flexibility and the legislation is not flexible.”

Feiter explains that companies need to obtain permits from the country’s government when using or researching genetic resources. The South African legislation and regulations distinguish three categories: Discovery (R&D), Bioprospecting and Biotrade. 

“We get permits for each one individually, but sometimes they overlap. For example, Biotrade and Bioprospecting permits can merge into one (Integrated Biotrade and Bioprospecting permit), depending on what you do.” 

Discovery phase 
Within discovery, there are two categories, commercial and non-commercial, which include taxonomic research. Typically, researchers don’t need a permit for discovery as long as the research occurs in South Africa with South African institutions. Feiter explains: “You put in a research notification, get a positive answer and then you carry on.” 

However, he highlights several situations where a permit is required, such as when an international university or company is involved in the research. 

“Then this becomes very different and more difficult. Many more questions are asked, and you have to get benefit-sharing agreements with potential traditional knowledge holders involved or at least find out whether there are traditional knowledge holders.” 

The South African legislation distinguishes three categories: Discovery (R&D), Bioprospecting and Biotrade.“Timeframes can be horribly long. We had one recent example where we had a discovery phase with a German company and waited almost two years.” 

To compare, for “straightforward” processes, it takes around one year to obtain a permit and then start the discovery process. 

In addition, when academic research becomes commercial, actors may also need a permit. However, Feiter notes that this is not quite clear and that “not everybody adheres to it.” 

Biotrade and Bioprospecting 
Feiter explains that Biotrade focuses on trading, for example, buying from a community or farm and selling it. Parceval has secured several permits in South Africa and has recently supported Nektium in obtaining a Biotrade permit for Honeybush. 

“Parceval would often be seen as a buyer trader because we are buying something, making an extract and selling it. Biotrade covers that.” 

“For instance, in the Buchu world, there’s Buchu involved as a raw material which can be traded as a dried herb, but also as oil or hydrosol. That is seen as Biotrade because you’re not altering the chemistry. You’re taking something out of the plant, which is there already, and you’re not putting it into a bioreactor with some enzymes and creating something else.”

“The latter one would very clearly be Bioprospecting,” Feiter adds. Additionally, Bioprospecting covers finished products sold on the consumer market.  

Rewarding traditional knowledge holders 
Ensuring that traditional knowledge holders share in benefits from natural resources is a crucial aspect of Biotrade and Bioprospecting permits. 

The Nagoya Protocol outlines guidelines for accessing and using genetic resources and knowledge through Access and Benefit Sharing agreements. 

Feiter explains what this entails: “There needs to be a community resolution. You need to have a benefit-sharing agreement about access and a separate benefit-sharing agreement about traditional knowledge, and there could be two different entities.” 

“In one case in the Eastern Cape, we have to get access to the resource through local traditional councils, but there are around 40 of them, and they fall under a kingdom. The traditional knowledge sits with a king — we may need five or ten access agreements with five different traditional councils.” 

Ensuring that traditional knowledge holders share in benefits from natural resources is crucial (Image credit: Parceval).“Before you can get that, each council must have a community meeting with a community resolution. Everybody in that resolution must have a certified ID book copy. You need to have that all on record.” 

Moreover, he notes that everything needs to be signed off by the Minister of Environmental Affairs before it is valid, which sometimes takes a long time. 

“We negotiated a benefit-sharing agreement between the Buchu Association and the traditional knowledge holder, the Khoi and the San, last September,” he illustrates. “We’re still waiting for the signature of the Minister.”  

“There’s injustice attached to that,” Feiter laments. “In the Buchu industry, we have two compliant companies, and they are currently making contributions according to the negotiated terms they had before the negotiation started. The others don’t, and that deprives the traditional knowledge holders of half a million South African Rand (around US$28,000) or more just because the Minister is not signing this off.”

International access and enforcement 
Harvey explains that international companies need a local partner in South Africa to obtain Biotrade or Bioprospecting permits. 

“Everybody has to have a permit in our value chain; that’s how our government has planned the legislation, but it can only be enforced locally.”

“It’s difficult for our government to know what’s happening abroad. It is not actively seeking companies — it’s more of a voluntary approach. If you are a big company and want to ensure all your compliance is correct and in place, then you will contact a local company and get a permit. But there’s a lot of companies that are operating without anything.”

She highlights that locally, the legislation is increasingly enforced. “For a long time, the law wasn’t enforced, and many of our local manufacturers, brand owners and suppliers of botanicals didn’t think they needed a permit, weren’t sure or ignored it.” 

According to Harvey, the South African government is sending out compliance auditors to companies that use indigenous ingredients in their products, such as rooibos or Harpagophytum procumbens (Devil’s claw) and thus need to have a permit. 

“They’re giving them deadlines when they need to get permits. Many more local companies are contacting us and asking about it — are you compliant, and what do we have to do?” 

After obtaining a permit, companies need to find compliant suppliers, which can difficult for some resources.Additionally, Feiter notes that a company’s home country, its national legislation and its monitoring and application of the law all significantly impact enforcement. 

“In the EU, there are unambiguous guidelines — each country has their legislation, they have inspectors, and they go around,” he illustrates. 

“Then there are countries like the US, Mexico or Canada who haven’t signed the Nagoya Protocol, so they don’t care much from a domestic point of view. Sometimes, somebody will ask for it, but they are not worrying too much about it.” 

Finding compliant suppliers 
Meanwhile, Feiter highlights another issue in South Africa — finding compliant suppliers. 

“We can apply for a permit, for instance, a Biotrade permit or even a Bioprospecting permit,  but then we are forced to have a compliant supplier of the raw material. There are plenty of cases where there isn’t anybody. We want to be compliant but can’t because nobody is compliant. For example, there is no compliant supplier for Devil’s claw, Harpagophytum procumbens.”  

Although this is not the case for all genetic resources, there are those for which there are no compliant suppliers. “Then you’re stuck, and an international company is also stuck,” he adds. “Because there is nobody or, strictly speaking, you become illegal. You could be punished by law.” 

This makes companies much less flexible to respond to supply dynamics or running out of stock. Harvey highlights that Parceval may need to go to a different supplier as suppliers change constantly. “We need to ensure we have two or three compliant suppliers on our books, even though we only purchase from one usually.” 

Feiter notes that this situation can also cause issues. “You go to all of them and say, ‘We’re going to need you to sign this, and we may or may not buy from you.’ You raise expectations or hopes and then don’t return to them.” 

“With some companies, it’s easy because they know the system, but it’s just unfair with others. You negotiate something, and then you never deliver on it.” 

By Jolanda van Hal