34. South Africa is a Contracting Party to the Convention on Biological Diversity (CBD) and ratified the Nagoya Protocol on Access to Generic Resources and Fair and Equitable Sharing of Benefits Arising from their Utilization in 2013 which came into force October 2014.
35. The Access Benefit Sharing (ABS) legal framework for South Africa is contained in Chapter 6 of National Environmental Management: Biodiversity Act No 3, 2003. This Act regulates, inter alia, bioprospecting involving indigenous genetic and biological resources; the exportation of indigenous genetic and biological resources for purposes of bioprospecting or any other research purpose; and provides for a fair and equitable sharing by stakeholders in benefits arising from bioprospecting.
36. South Africa also requires disclosure of the use of traditional knowledge or biological resources in patent applications. Sections 30 (3A) of the Patents Act No. 37 of 1952 as amended by Act No. 20 of 2005 require that:
"(3A) Every applicant who lodges an application for a patent accompanied by a complete specification shall, before acceptance of the application, lodge with the registrar a statement in the prescribed manner stating whether or not the invention for which protection is claimed is based on or derived from an indigenous biological resource, genetic resource, or traditional knowledge or use."
37. These amendments to the Patents Act came into force on 14 December 2007 by proclamation and with the publication of Regulations for the Patents Amendment Act. As a result, every applicant for a patent (with the exception of provisional patent applications) filed in South Africa on or after 14 December 2007 is required to lodge a declaration or statement in respect of traditional knowledge or use of indigenous biological resources, irrespective of the nature of the invention sought to be protected.
38. The South African National Recordal System (NRS) is a defensive anti-appropriation strategy which was launched on 24 March 2013 by the Department of Science and Technology (DST) in response to the Indigenous Knowledge System (IKS) Policy adopted by the South African government in 2004. The Recordal System, which is loosely modelled upon India's Traditional Knowledge Digital Library (TKDL), seeks to capture, preserve, manage and disseminate traditional knowledge in digital format, while simultaneously enabling processes to derive benefit from the traditional knowledge. The NRS, which has been developed in phases, currently focuses on traditional knowledge of both African traditional medicine and indigenous foods, while the protection of traditional knowledge relating to arts, crafts and farming practices will be developed at a later stage.
39. Despite the already extensive legal regime that applies in South Africa, we still experience significant instances of biopiracy and misappropriation. National regimes are therefore necessary, but insufficient steps to protect traditional knowledge or the use of indigenous biological resources. A multilateral system within the context of the TRIPS Agreement that regulates disclosure and access remains the best guarantee against misappropriation of genetic resources and traditional knowledge.
40. In respect of procedural issues, South Africa once again calls on the Secretariat to update the three factual notes contained in documents IP/C/W/368/Rev.1, IP/C/W/369/Rev.1 and IP/C/W/370/Rev.1. We further reiterate our support for a briefing by the CBD Secretariat on the Nagoya Protocol and subsequent developments.