South Africa moves towards recognising smallholder farmers’ Right to Seed and farmer seed systems – but the road ahead is still long

By Linzi Lewis, ACB Research and Advocacy Officer & Mariam Mayet, ACB Executive Director

After much anticipation, the Department of Forestry, Fisheries and the Environment (DFFE) published draft Regulations to implement the Plant Improvement Act (2018) (PIA) – also known as South Africa’s Seed Law – and the Plant Breeders Rights Act (2018) (PBRA), for public comment. The closing date for comments on the Draft Regulations has passed. The African Centre for Biodiversity (ACB) submitted comments timeously, after a long journey of robust civil society advocacy and activism, following the revision of the 1976 versions of both laws.

The engagement by the ACB, along with other civil society and farmer groups in South Africa, has been consistent and strategic:

Essentially, the ACB has been doggedly tracking this process since 2015 to ensure farmer seed systems are given adequate regulatory space to continue and thrive, advocating for state recognition and support of farmer seed systems and the realisation of farmers’ rights.

This sustained momentum has been pivotal in organising and raising awareness on:

  • Laws governing the trade and marketing of seed and plant variety protection (PVP);
  • The impact of these draconian laws on the Right to Seed and the future of seed and food systems; and,
  • The rights of smallholder farmers to save, reuse, exchange and sell their seed.

The maintenance and development of agricultural biodiversity by smallholder producers is vital for increasing the resiliency of food and farming systems. Farmers’ seeds and farmers’ rights are crucially important to support transitions to agroecological systems and adapt to climate change. In order for agroecological farming systems to flourish, a wide diversity of seed/planting materials are needed for breeding, production, exchange, cultivation and further adaptation. This integration is fundamental to families’ livelihoods and nutrition and cuts across national, regional and international policy spaces.

Our central demand is thus for policy and institutional support of agroecological farming systems, with farmer-managed seed systems being the core.

A step forward for homestead, traditional and smallholder farmers

South Africa has taken a small step in the right direction in providing for exceptions in both the PIA and the PBRA.

The exceptions to Plant Breeders’ Rights are outlined in the PBRA under Article 10. Of particular importance for homestead and smallholder farmers are Articles 10(2)(i) and (ii) relating to the category/ies of farmers who may use the protected variety, and the category/ies of plants that may be used. Currently the Draft Regulations allow for vulnerable household, subsistence and smallholder producers to save, reuse or exchange seed within their category, if producing seed below the prescribed maximum quantities, as outlined in Regulation 6. While the exceptions allow these categories of farmers to freely use farm saved seed of protected varieties of some key crops for relatively high amounts, they apply only to a small and select number of crops. All tree crops are however included.

©2015 CIAT/GeorginaSmith. Flickr. 2015

We have made substantive comments on the Regulations, including inter alia:

  • The need for these exceptions to apply to all crops;
  • For farmers to be able to sell seed and propagating material of protected varieties; and
  • For farmers to be able to exchange and sell seed across all exempt categories of farmers and not be confined solely to the category they fall under.

The exemptions outlined in the PIA under Article 23 are intended to be operationalised by Regulation 5 of the Draft Regulations. There are explicit exceptions provided for household, subsistence and smallholder producers/farmers to continue to produce diverse seeds, as stipulated under Regulation 5(1)(a) and (b), and exempt businesses under Regulation 6(1)(b)1 and 6(2)(c)(ii).2 Table 3 specifies the maximum amount of seed per variety imported or sold by a person to be considered to be on a non-commercial scale, as stipulated in Regulation 5(1). This allows these exempted farmers to multiply and sell their local farmers’ seed below the prescribed maximum amounts, without having to comply with seed registration, certification and marketing provisions.

It is our understanding that farmers’ seed may be exchanged and sold without being registered, as long as these are below the prescribed maximum quantities, as per Table 3 of the Regulations. This broad exception is a critically important inclusion in the Regulations, which must be maintained, as this creates the regulatory space for farmer seed systems to function and an important and critical element of farmers’ rights; namely, the unrestricted rights to save, reuse, exchange and sell all seed and propagating materials.

While they take some bold steps towards advancing farmers’ rights in South Africa, some crucial elements are not addressed. There remain a number of legal uncertainties that need to be ironed out in the Regulations, as well as some critical shortcomings.

In terms of the Regulations of the PBRA, the sole right period ranging between 5-10 years, granted to a plant breeder as provided for by the Act in terms of Article 9, is excessive and should be substantially reduced or, in the case of important crops for food, nutrition and economic security, should be set to zero. The current regulation will place South Africa, with its high level of food insecurity, in an incredibly precarious position unnecessarily for seed that does not fall within the exception. While the exceptions allow certain categories of farmers to freely use propagating material /farm saved seed of protected varieties of some key crops to a relatively high amount, they apply only to an extremely limited selection of crops. Section 10 (1) (a) of the Act states that a PBR does not extend to acts done for “private and non-commercial purposes”, a concept that remains undefined in the Regulations. To clarify this, we strongly believe that any acts that comply with Regulation 5 and 6 should be classified as acts done for private and non-commercial purposes in order to guarantee the unrestricted rights of farmers to reuse farm saved seed of protected varieties.

In terms of the Regulations of the PIA, Table 3 specifies the maximum amount of seed per plant type/crop imported or sold by a person to be considered operating on a non-commercial scale. This relates to the quantity of seed sold per year and quantities of seed per packet. While these figures seem quite satisfactory, there seems to be a lot of variability between different seed, without any explanation as to the rationale behind these numbers. These figures are essentially the same as Table 1 from the Guidelines and Procedures for the Importation of unlisted varieties in terms of the PIA, 1976,3 with a few minor changes. Therefore, these regulations offer some degree of regulatory space for the continued existence of farmer seed systems and the right to reuse, exchange and sell seed, as also set out under Article 9(3) of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) and the Right to Seed under Article 19 (1)(d) of the United Nations Declaration on the Right of Peasants and People Living in Rural Areas (UNDROP).

South Africa’s approach in stark contrast to the rest of the continent

We are witnessing intensifying threats to farmer seed systems and the diverse seed they hold on the continent. Waves of changes are taking place due to pressures from bilateral and other trade agreements, to develop seed laws oriented exclusively towards private and corporate interests, often based on the International Convention for the Protection of New Varieties of Plants (UPOV), 1991. These commercial seed laws neglect and often criminalise age-old practices of the homestead, traditional and smallholder farmers, a major constituency on the continent that produce most of the food consumed.

Seed law revisions are facilitating the expansion of the Green Revolution project by creating regulatory environments that enable corporate entry and control of African seed and agriculture systems. The Alliance for a Green Revolution in Africa (AGRA) and the G8 New Alliance for Food Security and Nutrition (G8 NAFSN), among many others, have aimed specifically to link agriculture in Africa to global circuits of capital and consolidate the global food regime, which is monopolised by multinational behemoths – especially input supply, i.e. seed and agrochemicals – thus opening markets for foreign corporations.4 While Green Revolution interventions initially focused on a handful of commercial crops (such as maize, rice and oil-producing crops), it now also includes commercial horticulture production for export, particularly to Europe, where a formidable market exists for fresh fruit, vegetables and flowers.5

The model being pushed is the same across the continent, where seed and PVP laws are being changed to enhance private sector entry and control over the seed sector. This is the case in Kenya, Mozambique, Malawi, mainland Tanzania and, more recently, in Zanzibar.6 Tanzania’s seed law, for example, restricts the sale and exchange of uncertified seed, while Kenya has gone so far as to criminalise the sale and sharing of all un-indexed seed, including indigenous seed. Farmers who continue their age-old practices of seed saving and exchange face a jail term of six months or a fine of 20 000 Kenyan Shillings. In Mozambique, we are witnessing a complete overhaul of the seed system, including new policies, new laws, new institutions, and deliberate accession to UPOV 1991.7 The AGRA is facilitating and indeed drafting the reform of Mozambique’s seed system towards an exclusively, industrial seed sector.8

While South Africa already has an established formal seed sector, the PIA and PBR, and their current draft Regulations, represent a shift in these laws’ orientation, standing in stark contrast to the rest of the continent. South Africa remains only a member of UPOV 1978, with there being no indication from the government at present to begin a process towards ratification of UPOV 1991.9 This is unlike the rest of Africa, where Tanzania and Kenya have already joined UPOV 1991, with Malawi and Zimbabwe in the process of accession, and Zambia consulting on the matter.

While South Africa is attempting to find a balance between farmers’ and breeders’ rights, opening up regulatory space for farmer seed systems to continue, the rest of the continent tragically seems to be closing the space rapidly, despite an absolute reliance on farmer seed systems to fulfil livelihood, food and nutritional security.

Need for full realisation of farmers’ rights and the Right to Seed

Farmer seed systems are foundational for all food systems and integral to the world’s genetic and cultural diversity. Since humankind relies on plants for food, feed, fibre and functional ecosystems, the United Nations Special Rapporteur on the Right to Food, Michael Fakhri emphasises that nothing less than the Right to Life is at stake when farmers’ seed systems are challenged or poorly supported. As such, the more a seed system recognises and supports farmers as stewards of a seed system for all of humankind, the more likely this system fulfils people’s human rights.10

There is widespread evidence pointing to the unsustainability of global food systems, and the negative impacts created by industrial agriculture and food supply chains, highlighting the need for a radical transformation of these practices.11 Seed forms a fundamental element of the food system. Our adaptive capacity lies in the hands of smallholder food producers who protect agricultural biodiversity and maintain an intimate relationship with ecological systems.

The exemptions and exceptions outlined in these Regulations illustrate a critical opening for farmers’ seed systems in South Africa and the advancement of the realisation of farmers’ rights to save, reuse, exchange and sell seed. However, farmers’ rights, as defined by the ITPGRFA under Article 9, goes beyond the right to save, exchange and sell seed, and includes:

  • The recognition of the enormous role played by local and indigenous communities and farmers in the conservation and development of plant genetic resources, which is the basis of food and agricultural production;
  • The protection of relevant traditional knowledge;
  • The right to participate in the benefit sharing of PGRFA; and
  • The right to participate in decision making related to the conservation and sustainable use of PGRFA.

The UNDROP, which South Africa is a major supporter of, refers to the Right to Seed under Article 19 and includes the above, as well as:

  • The right to maintain, control, protect and develop their own seeds and traditional knowledge;
  • For States to take measures to respect, protect and fulfil the Right to Seed of peasants and other people working in rural areas;
  • Ensure sufficient quality and quantity of seeds are available at the suitable time and affordable price;
  • For States to recognise the right of peasants to rely on their own seeds or locally available seed of choice and to decide on the crops and species they wish to grow;
  • For States to take appropriate measures to support farmer seed systems and promote the use of farmer seed and agrobiodiversity;
  • For States to take appropriate measures to ensure research and development integrate the needs of peasants and other people working in rural areas, to ensure their active participation in defining research priorities, and in the undertaking of research and development, taking into account their experience, and increase investment in research and development of neglected indigenous crops and seed that respond to smallholder farmers; and

For States to ensure that seed policies, plant variety protection and other intellectual property laws, certification schemes and seed marketing laws respect and take into account the rights, needs and realities of smallholder farmers.

Therefore, there are crucial elements missing in the Regulations for the full realisation of farmers’ rights and the Right to Seed. The orientation of these laws is geared towards commercial seed interests, with small-scale farmers and their seed systems only dealt with as exceptions. The fundamental need to support farmer seed systems, ensure that the rights and needs of farmers are adequately addressed, and safeguarding genetic and agricultural diversity, are absent. This said the regulatory space provided creates the basis for further work to be done in supporting and developing farmer seed systems and their integration with appropriate food and agriculture systems based on the principles of agroecology.

The road ahead

As it stands, these draft regulations, if they survive, respond to our concerns and when finally promulgated, will create space for the continued existence of farmer seed systems and an important step toward the realisation of farmers’ rights to save, reuse, exchange and sell seed. Yet, they do not explicitly create the space to expand the use of genetically diverse seed, strengthen farmer seed systems or realise farmers’ rights and the Right to Seed.

There is still a need for specific policies and programmes that are well funded and that actively and meaningfully support smallholder farmers in conserving, managing and sustainably using diverse seed. The regulatory space provided does, however, form the basis for further work for supporting and developing farmer seed systems. This could take place through:

  • The formulation of a discrete policy on farmers’ rights and farmer seed systems;
  • Farmer support programmes; and
  • Integration into climate change adaptation strategies, and so forth.

South Africa has the potential to be progressive and reorient policies and resources to go beyond mere exemptions and exceptions to commercial seed laws, and radically reorient the policy landscape, for the benefit of all. It would be prudent for other countries on the continent to be mindful of the direction South Africa is taking, and urgently reconsider the direction they are taking with regards to seed trade, marketing and PVP laws, to ensure farmers’ seed systems function, thrive and are well supported.

We wait to see the final Regulations and whether these exemptions and exceptions that the South African government has put forward will survive, depending on the backlash from the seed industry. As we understand, the Government will host stakeholder consultations on the Regulations, which we, along with other farmers and civil society organisations, will actively participate in.


[1] Regulation 6 (1) (b) specifies business exempt, which is the sale of seed of non-commercial varieties, i.e. those contemplated in section 23(1)(d) of the Act, in accordance with the limitations specified in Table 3, subject to provisions of regulation 5(3).

[2] (c) the running of a nursery where: (ii) only plants and propagating material of non-commercial varieties contemplated in 23(1)(d) of the Act and subject to regulation 5(4) are grown and/or sold.


[4] See


[6] See

[7] See Draft National Seed and Plant Varieties Protection Policy, Ministry of Agriculture and Rural Development (MADER), Republic of Mozambique.

[8] See Onsando, J.M., no date. Reformas Políticas-Regulamentares e Apoio Institucional para uma Maior Produtividade Agrícola dos Pequenos Agricultores nos Países em Foco da AGRA-Moçambique, Relatório Provisório, USAID, AGRA.

[9] Personal communication with Registrar of the PBRA, Dr Netnou-Nkoana, 27 July 2022.

[10] See

[11] See Benton, T. G., C. Bieg, H. Harwatt, R. Pudasaini, and L. Wellesley. 2021. Food System Impacts on Biodiversity Loss: Three Levers for Food System Transformation in Support of Nature. London: Chatham House; IPBES. 2019. Global Assessment Report on Biodiversity and Ecosystem Services of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services; IPES-Food, 2016. From Uniformity to Diversity: A paradigm shift from industrial agriculture to diversified agroecological systems.