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Chemical Technology • August 2015
4
Indigenous biological resources
and traditional knowledge –
Regulating their use in the
South African economy
I
n a drive to reap the benefits of South Africa’s extensive
biodiversity and the traditional knowledge on the subject
of its diverse people, the Biodiversity Act was promul-
gated with its Bioprospecting, Access, and Benefit Sharing
(BABS) regulations, the latter updated on 19 May 2015.
The law has now been changed in respect of bioprospect-
ing, ie, searching for plants, animals, and micro-organisms
which may have some beneficial purpose, whether medici-
nal, agricultural, or industrial, and then conducting further
research and protecting any invention derived from these
products and/or inventions. It is now a criminal offence to
search for or identify any indigenous biological resource, such
as a micro-organism, plant, or animal, without first notifying
the Department of Environmental Affairs and demonstrating
that the communities where the Discovery Phase is being
conducted have been consulted and have consented to
such activity.
If the material obtained through the notification process
is to be exported for further research, then a permit for this
purpose must be obtained. This is not a trivial procedure.
The Discovery Phase notification only permits the search for
and indexing of the indigenous biological resource, but no
further research or commercialisation. In order to conduct
further research or to commercialise any indigenous biologi-
cal resource or a product thereof, a Commercialisation Phase
permit (whether for biotrade, bioprospecting, or an integrated
biotrade and bioprospecting permit) must be obtained by
each link in the chain of research and development and
commercialisation.
The permit or notification in terms of the Act may only be
issued to or submitted by a South African juristic person, a
natural person, who is a South African citizen or a perma-
nent resident of South Africa, or a foreign juristic person or
a foreign natural person if they apply jointly with a South
African juristic or natural person. Thus, in short, the benefits
of bioprospecting are reserved for South Africans.
To obtain the permits, Material Transfer and Benefit Shar-
ing agreements must be entered into either with the com-
munity where the resources were located or whose traditional
knowledge is used, or the Director General of Environmental
Affairs where such a community cannot be identified.
The BABS regulations even regulate the trade in harvested
and virtually unprocessed biological resources, such as
leaves, seeds, bark, and the like. In addition, the BABS regu-
lations define ‘biotrade’ as the buying and selling of milled,
powdered, dried, sliced or extract of indigenous genetic and
biological resources for further commercial exploitation, and
such biotraders require a permit to do so. In fact, the BABS
regulations apply to commercial or industrial sectors that uti-
lise any indigenous genetic and biological resources and/or
any traditional knowledge for biotrade or for research, appli-
cation or development of drugs, complementary medicines,
nutraceuticals, industry enzymes, food flavours, fragrances,
cosmetics, emulsifiers, oleoresins, colours, extracts, and es-
If you are in the business of conducting
research or beneficiating and exploiting
animals, plants, or micro-organisms which
are indigenous to South Africa, whether
they are traditionally used locally for any
purpose whatsoever or not, or if you have
been considering doing so, then you had
better read this.