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Food Law in South Africa: Towards a South African Food Security Framework Act

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Abstract

The right to have access to sufficient food is enshrined in section 27(1)(b) of the Constitution of the Republic of South Africa, 1996. Section 27(2) mandates the South African state to take reasonable legislative and other measures, within available resources, to progressively realize this right. This chapter accordingly sets out the current (this chapter reflects the South African legal framework until September 2014) food security legal framework by outlining both legislative and other measures (referring to relevant policies, strategies and programs) as required by section 27(2). The United Nations Food and Agricultural Organization indicated in 2009 that legislative measures can take the form of: (a) constitutional inclusion; (b) a food security framework act; and (c) inclusion in sectoral legislation. The mentioned three legislative levels are outlined within the South African food security context. Specific attention is given to the enactment of a South African food security framework act in order to address various challenges faced within the regulatory framework, specifically the current fragmented approach. In addition to food security specific policies, strategies and programs, food security as a development priority is also outlined within government strategic plans and programs. Due to the fact that food insecurity is especially high in rural South Africa, special attention is given to relevant rural development and agrarian reform measures. Attention is also given to farmers’ rights with reference to biopiracy and plant breeders’ rights.

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Notes

  1. 1.

    Constitution of the Republic of South Africa (1996a).

  2. 2.

    Ibid, sections 27(1)(a-c), which includes other socio-economic rights entrenched in the Constitution, including (but not confined to) the right to have access to health care services, the right to have access to sufficient water, and the right to have access to social security.

  3. 3.

    Ibid, section 7(2), which asserts that the “state must respect, protect, promote and fulfil the rights in the Bill of Rights.” The Bill of Rights refers to chapter 2 of the Constitution, where various human rights and fundamental freedoms are enshrined.

  4. 4.

    “Food security” is defined in the South African context as “access to and control over the physical, social and economic means to ensure sufficient, safe and nutritious food at all times, for all South Africans, in order to meet the dietary requirements for a healthy life.” See DAFF & DSD (2013), p. 8.

  5. 5.

    Ibid, p. 3. The National Policy for Food and Nutrition Security was subsequently published as Government Notice 637 in the South African Government Gazette (No. 37915) of 22 August 2014.

  6. 6.

    Ibid, p. 6; The Government of South Africa (2013), Millennium Development Goals: Country Report 2013d; StatsSA (2011), GHS Series Volume IV.

  7. 7.

    National Department of Agriculture (2002), pp. 25–27.

  8. 8.

    DAFF & DSD (2013), p. 4.

  9. 9.

    Ibid, p. 4.

  10. 10.

    National Department of Agriculture (2002), pp. 8–9, 19.

  11. 11.

    Ibid, Addendum A, which states that “the physical accessibility of food in many rural areas presents problems because of the lack of infrastructure, such as roads, electricity and trading facilities. In the context of a stagnant economy and rapid population growth, the emphasis on commercialization and ineffective support programs for small-scale farmers had a negative impact on the food security of many rural households, even though national food security was enhanced.” Poor storage and distribution of food also threatens household food security as mentioned in DAFF & DSD (2013), p. 3.

  12. 12.

    In 1994, ownership of agricultural land was racially skewed as a result of the segregation policy of the apartheid government as well as a consequence of colonization. The majority of agricultural land was owned by the minority whites. As such, a land reform program was formulated and implemented in order to address: (a) land restitution; (b) land redistribution; and (c) land tenure reform in accordance with the mandate in section 25 of the Constitution. For more information on the various pieces of legislation, policies, strategies and programs within the land reform program (and it subsequent development). For more information see Pienaar (2014).

  13. 13.

    DAFF & DSD (2013), p. 3.

  14. 14.

    Ibid.

  15. 15.

    Brand (2005a), p. 181; Khoza (2004), p. 664.

  16. 16.

    National Department of Agriculture (2002), pp. 5–6 illustrates this statement with the following example: “Despite Government’s intentions to promote food and agricultural production, various deficits in service delivery still exist. For example, the current extension and advisory services are inadequate due to a number of reasons including the fragmentation of service delivery within the three tiers of government The provision of post settlement support to farmers who benefit from land reform’s restitution, redistribution and tenure reforms requires better coordination primarily between the Department of Agriculture and Land Affairs, between the National and Provincial, and local authorities and farmers organizations and business. The roles and responsibilities of the various departments therefore need to be clarified and the necessary institutional mechanisms for project implementation and monitoring should be in place. Furthermore, this disjuncture reflects the broader challenge government has in identifying the most appropriate mechanisms for ensuring the resourcing of interdepartmental programs.”

  17. 17.

    “Other” programs, strategies and policies will be outlined later in this chapter.

  18. 18.

    Terblanche and Pienaar (2012), pp. 229, 232.

  19. 19.

    Khoza (2005), p. 197.

  20. 20.

    Ibid, p. 197.

  21. 21.

    FAO (2014), Legal Developments in the Progressive Realization of the Right to Adequate Food: Working Paper.

  22. 22.

    Please take note that due to the nature and extent of this chapter, detailed discussions of the various measures are not necessarily possible.

  23. 23.

    This chapter reflects the South African legal framework up until 30 September 2014.

  24. 24.

    President Jacob Zuma recently indicated that “the overall food security figure is declining due to government programmes,” specifically “the percentage of households that were vulnerable to hunger declined from 29,3 % in 2002 to 12,6 % in 2012.” Zuma (2013).

  25. 25.

    Du Toit (2011).

  26. 26.

    FAO (2009).

  27. 27.

    Including food security measures.

  28. 28.

    FAO (2009).

  29. 29.

    Constitution of the Republic of South Africa (1996a), section 7(2).

  30. 30.

    Brand (2005a), p. 3.

  31. 31.

    Liebenberg (2010).

  32. 32.

    Ibid, p. 85.

  33. 33.

    Clover (2003), pp. 5, 7.

  34. 34.

    See in this regard CESCR (1985), paragraph 25.

  35. 35.

    Liebenberg (2010), p. 85.

  36. 36.

    See, for example, the National School Nutrition Programme, which is described later in this chapter.

  37. 37.

    Liebenberg (2010), p. 85.

  38. 38.

    July 2014.

  39. 39.

    For a detailed discussion on the right to have access to sufficient food, the impact of the general limitation clause (section 36) and the test for reasonableness, see Brand (2005a), pp. 153–295.

  40. 40.

    Terblanche (2011), p. 309.

  41. 41.

    Ibid.

  42. 42.

    For example, see FAO (2009), p. 6, where it contends “sectoral laws are important to the progressive realization of the right to food, since the right depends upon many factors and actors. Legislation concerning access to and management of land and natural resources can partly determine whether rural people are able to feed themselves and produce a surplus to feed urban dwellers. Trade legislation influences affordability of food as well as the ability of farmers to compete. Agricultural laws frame conditions for food production. Labour laws have an impact on whether or not wage labourers can earn enough to buy the food they need, and social protection supports food purchasing.”

  43. 43.

    Ibid, p. 191.

  44. 44.

    For example, the Restitution of Land Rights Amendment Act 15 of 2014, Provision of Land and Assistance Act 126 of 1993, Extension of Security of Tenure Act 62 of 1997b, and Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998e.

  45. 45.

    For example, the Employment Equity Act 55 of 1998; Skills Development Act 97 of 1998f; and the Basic Conditions of Employment Act 75 of 1997a.

  46. 46.

    See, for example, the Social Assistance Act 13 of 2004.

  47. 47.

    See, for example, the Agricultural Product Standards Act 119 of 1990 and the Genetically Modified Organisms Act 15 of 1997c.

  48. 48.

    For example, see the National Environmental Management Act 107 of 1998c and the National Water Act 36 of 1998d.

  49. 49.

    See, for example, the Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972, Marketing of Agricultural Products Act 47 of 1996b, Standards Act 8 of 2008b, and the Genetically Modified Organisms Act 15 of 1997.

  50. 50.

    For example, the Consumer Protection Act 68 of 2008a.

  51. 51.

    See the National Health Act 61 of 2003.

  52. 52.

    See, for example, the Competition Act 89 of 1998a and the International Trade Administration Act 71 of 2002. Various sectoral bills have been developed between 2013 and 2014 that must still follow the legislative process, but which may (when enacted) have an impact on food security, including the Spatial Planning and Land Use Act 16 of 2013e (not yet commenced), Draft Extension of Security of Tenure Amendment Bill of 2013c, Land Protection Bill of 2014a, Draft Expropriation Bill of 2013b, and Protection and Development of Agricultural Land Framework Bill of 2014b.

  53. 53.

    The year when the first democratic elections were held.

  54. 54.

    ANC (1994), Reconstruction and Development Programme.

  55. 55.

    The RDP is a socio-economic policy framework adopted after the 1994 elections by the elected African National Congress. For more information on the RDP, see ANC (1994), Policy Documents.

  56. 56.

    Ibid, para 2.11.2.

  57. 57.

    Ibid, para. 2.11.2–2.11.6; 4.5.2.2–4.5.2.3.

  58. 58.

    WOP (2009), War on Poverty Campaign.

  59. 59.

    The Government of South Africa (2011), The New Growth Path.

  60. 60.

    The Presidency – Republic of South Africa (2009), Medium Term Strategic Framework: A Framework to Guide Government’s Programme in the Electoral Mandate Period 2009–2014; The Presidency – Republic of South Africa (2014), Medium Term Strategic Framework (MTSF) 2014–2019.

  61. 61.

    National Planning Commission (2011), National Development Plan.

  62. 62.

    The MTSF 2009–2014 was meant to guide the government’s planning and resource allocation between 2009 and 2014, following the ANC government’s 4th consecutive victory in the 2009 elections. For more information on the MTSF 2009–2014 see The Presidency – Republic of South Africa (2009). The MTSF 2009–2014 was recently followed up by the MTSF 2014–2019 following the ANC government’s 5th consecutive victory at the 2014 elections.

  63. 63.

    ANC (2009), Election Manifesto.

  64. 64.

    The Presidency – Republic of South Africa (2009), pp. 18–22.

  65. 65.

    Ibid, pp. 19–22.

  66. 66.

    Amongst other measures, the “government has pledged over R2.6 billion in conditional grants to provinces for agricultural infrastructure, training and advisory services and marketing, and for upgrading agricultural colleges.” See ibid.

  67. 67.

    Amongst other measures, agricultural starter packs were to be provided to 140,000 households per annum under the Ilima/Letsema Campaign. The Ilima/Lesema Campaign is outlined later in this chapter.

  68. 68.

    The subsequent MTSF 2014–2019 reaffirms the government's commitment to the establishment/maintenance of vibrant, equitable and sustainable rural communities that contributes towards food security for all. It is envisioned in the MTSF 2014–2019 that, by 2013, the rural economy (with specific reference to agriculture) should “create close to 1 million new jobs, contributing significantly to reducing overall unemployment.” Republic of South Africa. Policy imperatives mentioned in the MTSF 2014–2019 include (a) improved land administration and spatial planning, (b) sustainable land reform for agrarian transformation, (c) development and support for smallholder farmers, (d) increased access to quality basic infrastructure and services (with specific mention of education, healthcare and public transport in rural areas), (e) support for sustainable rural enterprises/industries (with rural-urban linkages), and (f) increased investment in agro-processing, trade development, and improved access to markets and financial services. See The Presidency – Republic of South Africa (2014).

  69. 69.

    National Planning Commission (2011), pp. 10–16.

  70. 70.

    DAFF & DSD (2013), p. 5.

  71. 71.

    Especially for women.

  72. 72.

    DAFF & DSD (2013).

  73. 73.

    DRDLR (2014), Strategic Plan: Rural Development and Land Reform 2014–2019.

  74. 74.

    DAFF (2012a), Strategic Plan 2012–2017.

  75. 75.

    DRDLR (2014).

  76. 76.

    Ibid, Objective 3.1.

  77. 77.

    Ibid, p. 39.

  78. 78.

    Ibid.

  79. 79.

    Ibid, Strategic objective 3.2.

  80. 80.

    Ibid, Strategic objective 3.3.

  81. 81.

    Ibid, Strategic objective 3.4.

  82. 82.

    Ibid, pp. 39–40.

  83. 83.

    DAFF (2012b), pp. vii–ix.

  84. 84.

    Ibid, p. ix: “Against the background of an increasing global population, the gradual decrease of natural resources and the effects of climate change, food security is a vital focus area for the department.” More specifically it is stated in DAFF, at xi that it is a strategic priority to “[i]mprove the food security initiative by coordinating production systems to increase the profitable production, handling and processing of food, fibre and timber products by all categories of producers,” referring to both commercial and emerging farmers.

  85. 85.

    Ibid, pp. 31–35.

  86. 86.

    Ibid, pp. 35–38.

  87. 87.

    Ibid, p. 35.

  88. 88.

    See the outline of initiatives focused on subsistence and smallholder farmers as well as agriculture in general later in this chapter.

  89. 89.

    The Sector Capacity Development sub-program is aimed at “… the provision of agriculture, forestry and fisheries and training in support of sustainable growth and equitable participation in the sector. This will be achieved by facilitating and supporting education and training skills, promoting the development of centres of excellence on skills training and developing, managing and coordinating the sector transformation policy and strategy in line with the government objectives for the departments.” See DAFF (2012b), p. 35.

  90. 90.

    The National Extension Support Services sub-program provides “national extension policies, norms and standards on the transfer of technology. The sub-program will provide strategic leadership and guidance for the planning, coordination and implementation of extension and advisory services in the sector. It will also provide leadership and strategic support in the implementation of norms and standards for extension.” See ibid.

  91. 91.

    Ibid.

  92. 92.

    Ibid, p. 36.

  93. 93.

    As previously mentioned “all categories of producers” includes commercial and emerging farmers.

  94. 94.

    DAFF (2012b), p. 36.

  95. 95.

    Ibid.

  96. 96.

    It was initially planned that a Green Paper on Food Security (namely a discussion document) was to be published in the South African Government Gazette in 2012/2013, while the actual Food Security Bill would be developed in 2013/2014. See ibid, p. 36. However, no Food Security Bill has been published to date. The benefits of enacting a framework act will be discussed later in this chapter.

  97. 97.

    Ibid, p. 36.

  98. 98.

    Ibid, p. 37.

  99. 99.

    Ibid, p. 38.

  100. 100.

    Ibid.

  101. 101.

    Agribusinesses include Grain South Africa, Agri South Africa, Noord-Wes Koöperasie Beperk. See ibid, p. 38.

  102. 102.

    Ibid, p. 38.

  103. 103.

    Note that due to the nature and scope of this chapter, only those programs, policies and strategies that directly influence food security (on national and/or household level) were selected.

  104. 104.

    National Department of Agriculture (1995), White Paper on Agriculture.

  105. 105.

    The range of this “spectrum” refers to “urban food gardens and small scale production for household income and food security to large-scale production systems which can add considerably to national food security.” See ibid, para 2.2. Previously, it was believed that the development of small-scale farming was detrimental to South Africa’s food self-sufficiency. Ibid, Preamble. See also ibid, Addendum A, which affirms that “at national level food security will be enhanced by promoting the realisation of agriculture’s potential within the constraints of comparative and competitive advantages, and of other resources that may be required for sustainable agricultural development. While acknowledging that large-scale commercial farms will still make a valuable contribution to national food security and that the policy environment must support them, small farms may be of increasing importance for improving both national and household food security.”

  106. 106.

    Ibid, para 8.9.

  107. 107.

    Ibid.

  108. 108.

    Ministry for Agriculture and Land Affairs (2001), Land Redistribution for Agricultural Development.

  109. 109.

    For the qualifying criteria, see ibid, p. 8.

  110. 110.

    Ibid, p. 5.

  111. 111.

    Ibid, p. 1.

  112. 112.

    Ibid.

  113. 113.

    Ibid, p. 2.

  114. 114.

    National Department of Agriculture (2004b), Comprehensive Agricultural Support Programme.

  115. 115.

    The aims of CASP are to “reduce poverty and inequalities in land and enterprise ownership, improved farming efficiency, improved national and household food security, stable and safe rural communities, reduced levels of crime and violence, and increased creation of wealth in agriculture and rural areas and finally increased pride and dignity in agriculture as an occupation and sector.” See ibid, p. 2.

  116. 116.

    Ibid, p. 1.

  117. 117.

    Ibid, p. 8.

  118. 118.

    These categories of beneficiaries are provided agricultural starter packs. See ibid, p. 8.

  119. 119.

    Supported Funded through farm level support. See National Department of Agriculture, p. 8.

  120. 120.

    Ibid, p. 8.

  121. 121.

    Ministry of Rural Development and Land Reform (2009), The Comprehensive Rural Development Programme Framework.

  122. 122.

    DRDLR (2011), Green Paper on Land Reform.

  123. 123.

    “The CRDP is aimed at being an effective response against poverty and food insecurity by maximizing the use and management of natural resources to create vibrant, equitable and sustainable rural communities.” See Ministry of Rural Development and Land Reform (2009), p. 3.

  124. 124.

    Ibid, pp. 4, 13–14.

  125. 125.

    Ibid, pp. 5, 16–20.

  126. 126.

    Ibid, pp. 5, 14–16.

  127. 127.

    DRDLR (2011), para 3.1.

  128. 128.

    The other principles are “de-racialising the rural economy” and “democratic and equitable land allocation and use across race, gender and class.” See ibid, para 4.1.

  129. 129.

    Recent developments include the Agricultural Landholdings Policy Framework of 2013a for the establishment of land ceilings and the re-opening of land restitution cases by means of the Restitution of Land Rights Amendment Act 15 of 2014c.

  130. 130.

    DRDLR (2011), para 6.1.

  131. 131.

    DRDLR (2013b), Policy on the Recapitalisation and Development Programme.

  132. 132.

    Ibid, p. 10.

  133. 133.

    Therefore, as early as 1991, but specifically after the first democratic elections held in 1994.

  134. 134.

    DRDLR (2013a), p. 11.

  135. 135.

    Ibid.

  136. 136.

    Ibid, p. 10.

  137. 137.

    Ibid, p. 5.

  138. 138.

    These programmes include not only free support from neighboring or local farmers but also aligned remuneration or reimbursement packages. See Ibid, p. 12.

  139. 139.

    Co-management is “an arrangement where two or more parties define and guarantee amongst themselves a fair sharing of the management functions, entitlements and responsibilities for a given territory or set of natural resources.” See Ibid.

  140. 140.

    Share-equity arrangements are defined as “[p]artners [who] acquire shares in an existing agricultural farm or other enterprises across the value chain with farmers or entrepreneurs.” See ibid, p. 14.

  141. 141.

    This is “an agreement between farmers (generally small-scale) and processors or marketing firms, the basis of which is ‘a commitment on the part of the farmer to provide a specific commodity in quantities and at quality standards determined by the purchaser and a commitment on the part of the company to support the farmer’s production and to purchase the commodity.’” See ibid.

  142. 142.

    Ibid, p. 17.

  143. 143.

    See Apartheid Museum, The Homelands: “The policy of separate development sought to assign every black African to a ‘homeland’ according to their ethnic identity. Ten homelands were created to rid South Africa of its black citizens, opening the way for massed forced removals. In the 1970s, the government granted sham independence to South Africa’s black homelands. This served as an excuse to deny all Africans political rights in South Africa.”

  144. 144.

    DRDLR (2013a), p. 12.

  145. 145.

    Held on 7 May 2014. The ANC was again democratically elected for another term (2014–2019).

  146. 146.

    Hendriks et al. (2014).

  147. 147.

    This was already approved by the Minister of the DRDLR in 2013. See DRDLR (2013a), Agricultural Land Holdings Policy Framework.

  148. 148.

    National Department of Agriculture (2002).

  149. 149.

    Ibid, pp. 6–7.

  150. 150.

    Ibid, p. 7.

  151. 151.

    DAFF & DSD (2013).

  152. 152.

    The policy aims to “build on existing initiatives and systems, and to put in place mechanisms that ensure stricter alignment, better coordination, and stronger oversight.” Ibid, p. 6.

  153. 153.

    Ibid, pp. 6, 19.

  154. 154.

    Investments include the “revitalisation of irrigation schemes, and the development of production, storage and distribution of food.” Ibid, p. 19.

  155. 155.

    This will be achieved through “public-private partnerships, including off-take and other agreements, a government food purchase programme that supports smallholder farmers, as well as through the implementation of the Agri-BEE Charter, which requires agro-processing industries to broaden their supply bases to include the emerging agricultural sector.” See ibid. Regarding the government food purchase program, see also the Zero Hunger Program mentioned later in this chapter. Agri-BEE stands for Broad-Based Black Economic Empowerment in the agricultural sector. See in this regard the Department of Agriculture (2004a), Agri-BEE, Broad-Based Black Economic Empowerment Framework for Agriculture.

  156. 156.

    Agripen (2013), South Africa Moves to Improve Food Security.

  157. 157.

    Zuma (2013).

  158. 158.

    Ibid.

  159. 159.

    Ibid.

  160. 160.

    Ibid.

  161. 161.

    Ibid.

  162. 162.

    Ibid.

  163. 163.

    Agripen (2013).

  164. 164.

    Department of Agriculture (2008), Ilima/Letsema Campaign.

  165. 165.

    Ibid.

  166. 166.

    Ibid.

  167. 167.

    Department of Basic Education (1994), National School Nutrition Programme.

  168. 168.

    Specifically in Quintile 1–3 schools. South African schools are classified into quintiles for resource allocation. Quintile one schools are regarded as the poorest schools and quintile 1–3 schools are declared “no-fee” schools. The poverty levels of the surrounding communities are (inter alia) taken into account when ranking the schools. See Western Cape Government (2013), Media Release: Background to the National Quintile System. See also Department of Basic Education (1994).

  169. 169.

    Ibid.

  170. 170.

    Department of Basic Education (2013), Q & A for NSNP Schools.

  171. 171.

    Department of Basic Education (1994).

  172. 172.

    DAFF (2012b), p. 3.

  173. 173.

    The Zero Hunger Program is also linked to CASP.

  174. 174.

    CESCR (1996), International Covenant on Economic, Social and Cultural Rights.

  175. 175.

    After the first democratic elections in April 1994.

  176. 176.

    Brand (2005b), p. 7.

  177. 177.

    CESCR (1999), General Comment 12: The Right to Adequate Food.

  178. 178.

    See also the recent United Nations General Assembly (2012), Resolution 67/174: The Right to Food.

  179. 179.

    United Nations (2000), Millennium Development Goals.

  180. 180.

    For the various programs and strategies, see Republic of South Africa (2013), Millennium Development Goals: Country Report 18–19. Goal 1 is addressed in, inter alia, the RDP program as well as in the National Planning Commission (2011), National Development Plan. Also, outcome 7 of the MTFS or the establishment of “vibrant, equitable, and sustainable rural communities with food security for all” is mapped to goal 1 of the MDGs. See Republic of South Africa (2013), Millennium Development Goals: Country Report 19 and 21–26 for South Africa’s progress regarding goal 1 as at 2013.

  181. 181.

    Article 12 of CEDAW, for example, states that “notwithstanding the provisions of par. I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.” See United Nations Human Rights—Office of the High Commission for Human Rights (1979), CEDAW.

  182. 182.

    The Geneva Conventions consist of four treaties and three additional protocols that set international standards for the humanitarian treatment of war victims. See ICRC (1949), The Geneva Conventions. Various articles in the four conventions are applicable to food issues related to war victims.

  183. 183.

    FAO (1996), Rome Declaration on Food Security.

  184. 184.

    FAO (1997), World Food Summit Plan of Action.

  185. 185.

    Cohen and Bown (2006), p. 225.

  186. 186.

    As well as other declarations adopted at the subsequent FAO World Food Summits.

  187. 187.

    “The main objectives of Southern African Development Community (SADC) are to achieve economic development, peace and security, and growth, alleviate poverty, enhance the standard and quality of life of the peoples of Southern Africa, and support the socially disadvantaged through Regional Integration. These objectives are to be achieved through increased Regional Integration, built on democratic principles, and equitable and sustainable development.” SADC (1992), SADC Objectives.

  188. 188.

    African Commission on Human and Peoples’ Rights (2003), Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa.

  189. 189.

    On AU regional level, the New Partnership for Africa’s Development (NEPAD) aims to “address critical challenges facing Africa, namely poverty, development and Africa’s marginalisation internationally.” (See NEPAD, About) The accompanying Comprehensive Africa Agriculture Development Programme (CAADP) is also a regional initiative. (See NEPAD (2003), Comprehensive Africa Agriculture Development Programme, which focus on the improvement and promotion of agriculture in Africa.

  190. 190.

    SADC (2012a), Food, Agriculture and Natural Resources.

  191. 191.

    SADC (2004), Dar-Es-Salaam Declaration on Agriculture and Food Security in the SADC Region.

  192. 192.

    SADC (2012b), Food Security.

  193. 193.

    Borowiak (2004), pp. 511, 519.

  194. 194.

    Ibid, p. 513.

  195. 195.

    Ibid, p. 514.

  196. 196.

    Ibid.

  197. 197.

    Ibid.

  198. 198.

    For a discussion on why intellectual property rights did not initially apply to plants, see ibid, p. 514.

  199. 199.

    Ibid, p. 514.

  200. 200.

    South Africa is a signatory to the 1978 International Convention for the Protection of New Varieties of Plants.

  201. 201.

    WTO (1994), Agreement on Trade-Related Aspects of Intellectual Property Rights.

  202. 202.

    Quoted in Sivia, Captive Minds, Captive Lies p. 107 as quoted in Borowiak (2004), p. 518.

  203. 203.

    Department of Agriculture (1976).

  204. 204.

    UPOV (1978), International Convention for the Protection of New Varieties of Plants.

  205. 205.

    UPOV (1991b), Members of the International Union for the Protection of New Varieties of Plants.

  206. 206.

    UPOV (1991a), International Convention for the Protection of New Varieties of Plants.

  207. 207.

    FAO (2004), Part III: Options Available to National Governments under existing International IPR Agreements Protecting Plant Varieties and Plant Breeders’ Rights.

  208. 208.

    Department of Agriculture (1976), Plant Breeders’ Rights—Section 1.

  209. 209.

    Ibid.

  210. 210.

    Furthermore, “a plant breeder’s right therefore provides the holder with a means of gaining financial remuneration for his efforts, encouraging breeders to continue with the breeding of new and better varieties, a process that is very time-consuming and expensive.” Ibid.

  211. 211.

    A variety is regarded as “new” if, according to section 2(2)(a), “propagating material or harvested material thereof has not been sold or otherwise disposed of by, or with the consent of, the breeder for purposes of exploitation of the variety- (i) in the Republic, not more than one year; and (ii) in a convention country or an agreement country, in the case of- (aa) varieties of vines and trees, not more than six years; or (bb) other varieties, not more than four years, prior to the date of filing of the application for a plant breeder’s right.”

  212. 212.

    A variety is regarded as “distinct” if, according to section 2(2)(b), “at the date of filing of the application for a plant breeder’s right, it is clearly distinguishable from any other variety of the same kind of plant of which the existence on that date is a matter of common knowledge.”

  213. 213.

    A variety is regarded as “uniform” if, according to section 2(2)(c), it is “subject to the variation that may be expected from the particular features of the propagation thereof, it is sufficiently uniform with regard to the characteristics of the variety in question.”

  214. 214.

    A variety is regarded as “stable” if, according to section 2(2)(d), “the characteristics thereof remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.”

  215. 215.

    Department of Agriculture (1976), Section 4.

  216. 216.

    Including South African citizens or persons who are domiciled in South Africa or a convention country or an agreement country and a juristic person that has a registered office in the Republic of South Africa or a convention country or an agreement country. Ibid, Sections 1, 6(2)(a-b), 7(2).

  217. 217.

    If a plant breeder’s right is granted, the register must: (a) issue a certificate of registration (section 20(2)(a)); (b) enter the details in the register (section 20(2)(b)); and (c) publish the particulars in the Government Gazette (as may be described)(section 20(2)(c)).

  218. 218.

    See ibid, section 23(4)(a): “The provisions of subsections (1), (2) and (3) shall also apply to varieties which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety; not distinguishable from the protected variety as contemplated in section 2(2)(b); or the production of which requires the repeated use of the protected variety.” See also ibid, section 23(4)(b): “For the purposes of paragraph (a) (i) a variety shall be deemed to be essentially derived from another variety if - (i) it is predominantly derived from that other variety, or from a variety that is itself predominantly derived from that other variety, while retaining the essential characteristics of that other variety; and (ii) it is clearly distinguishable from that other variety; and (iii) except for the differences which result from the process of derivation, it conforms to that other variety in respect of the essential characteristics.”

  219. 219.

    “Variety” refers to “plant grouping within a single botanical taxon of the lowest known classification, which grouping, irrespective of whether or not the conditions for the grant of a plant breeder’s right are fully met, can be—(a) defined by the expression of the characteristics resulting from a given genotype or combination of genotypes; (b) distinguished from any other plant grouping by the expression of at least one of the said characteristics; and (c) considered as a unit with regard to its suitability for being propagated unchanged.” See ibid, section 1.

  220. 220.

    Appropriate compensation in respect to infringement of a plant breeder’s right is provided for in ibid, section 47.

  221. 221.

    DAFF (2011), p. 9.

  222. 222.

    Own emphasize.

  223. 223.

    DAFF (2011), p. 13.

  224. 224.

    Ibid, p. 23.

  225. 225.

    Ibid, p. 13.

  226. 226.

    Ibid, p. 19.

  227. 227.

    Borowiak (2004), pp. 512, 520.

  228. 228.

    Ibid, p. 520.

  229. 229.

    Ibid.

  230. 230.

    In Motion (2003), Valley of 1000 Hills Declaration.

  231. 231.

    Anon (2002), The Johannesburg Declaration on Biopiracy, Biodiversity and Community Rights.

  232. 232.

    Regarding the traditional role of farmers as stewards of agro-biodiversity, see DAFF (2011), p. 8. “Farmers’ Rights consist of the customary rights that farmers have had as stewards of agro-biodiversity since the dawn of agriculture to save, grow, share, develop and maintain plant varieties; their legitimate right to be rewarded and supported for their contribution to the global pool of genetic resources as well as to the development of commercial varieties of plants; and their rights to participate in decision making on issues that may affect these rights.”

  233. 233.

    Borowiak (2004), p. 512.

  234. 234.

    DAFF (2011), pp. 9–10.

  235. 235.

    See the Government of South Africa (2004), Biodiversity Act—section 1. Various examples of bioprospecting are included such as “(a) the systematic search, collection or gathering of such resources or making extractions from such resources for purposes of such research, development or application; (b) the utilization for purposes of such research or development of any information regarding any traditional uses of indigenous biological resources by indigenous communities; (c) research on, or the application, development or modification of, any such traditional uses, for commercial or industrial exploitation; or (d) the trading in and exporting of indigenous biological resources in order to develop and produce products, such as drugs, industrial enzymes, food flavors, fragrances, cosmetics, emulsifiers, oleoresins, colors, extracts and essential oils.”

  236. 236.

    Genetic material is defined as “material of animal, plant, microbial or other biological origin containing functional units of heredity.” See ibid.

  237. 237.

    See ibid, section 80(2) For bioprospecting purposes, biological resources are defined as “(i) any indigenous biological resources as defined in paragraph (b) of the definition of ‘indigenous biological resource’ in section 1, whether gathered from the wild or accessed from any other source, including any animals, plants or other organisms of an indigenous species cultivated, bred or kept in captivity or cultivated or altered in any way by means of biotechnology; (ii) any cultivar, variety, strain, derivative, hybrid or fertile version of any indigenous species or of any animals, plants or other organisms referred to in subparagraph (i); and (iii) any exotic animals, plants or other organisms, whether gathered from the wild or accessed from any other source which, through the use of biotechnology, have been altered with any genetic material or chemical compound found in any indigenous species or any animals, plants or other organisms referred to in subparagraph (i) or (ii).” Section 1 includes: “when used in relation to any other matter, means any resource consisting of- (i) any living or dead animal, plant or other organism of an indigenous species; (ii) any derivative of such animal, plant or other organism; or (iii) any genetic material of such animal, plant or other organism”.

  238. 238.

    Ibid, preamble.

  239. 239.

    Baker (2010), Forget the piracy off the Somali Coast; South Africa has some piracy of its own – Biopiracy.

  240. 240.

    Ibid.

  241. 241.

    The Government of South Africa (2004), section 81.

  242. 242.

    Ibid, section 83.

  243. 243.

    Ibid, section 84.

  244. 244.

    Ibid, section 30(3A).

  245. 245.

    Refers to an “indigenous biological resource” as defined in ibid, section 1. See ibid, patent act section.

  246. 246.

    Genetic resource is any indigenous genetic material or the genetic potential or characteristics of any indigenous species. See ibid, section 1.

  247. 247.

    “Traditional knowledge” means the knowledge that an indigenous community has regarding the use of an indigenous biological or a genetic resource. “Traditional use” means the way in which or the purpose for which an indigenous community has used an indigenous biological resource or a genetic resource. See ibid.

  248. 248.

    Baker (2010).

  249. 249.

    Convention on Biological Diversity (1993), Introduction.

  250. 250.

    See also the Cartagena Protocol (United Nations Convention on Biological Diversity (2001), Cartagena Protocol on Biosafety) that South Africa ascended to as well as the Nagoya Protocol (United Nations Convention on Biological Diversity (2010), Nagoya Protocol) which South Africa ratified.

  251. 251.

    ITPGRFA was implemented on 29 June 2004. See FAO (2001), The International Treaty on Plant Genetic Resources for Food and Agriculture.

  252. 252.

    DAFF (2011), pp. 8–9.

  253. 253.

    Refers to decision-making at the national level.

  254. 254.

    DAFF (2011), p. 9.

  255. 255.

    These are the requirements for protection of plant variety as listed in Department of Agriculture (1976), section 2(2)(a)-(c).

  256. 256.

    As well as the source, use and impact for of new plant varieties.

  257. 257.

    Wynberg et al. (2012), p. 1; DAFF (2011), p. 14.

  258. 258.

    For further recommendations see Wynberg et al. (2012), pp. 1–2.

  259. 259.

    DRDLR (2014), p. 23.

  260. 260.

    DAFF & DSD (2013), p. 3.

  261. 261.

    This corroborates with President Zuma’s indication that “the overall food security figure is declining due to government programmes” namely that “the percentage of households that were vulnerable to hunger declined from 29,3 % in 2002 to 12,6 % in 2012.” Zuma (2013).

  262. 262.

    DAFF & DSD (2013), p. 3.

  263. 263.

    Terblanche and Pienaar (2012), p. 232.

  264. 264.

    Terblanche (2011), pp. 199–203.

  265. 265.

    For example, see FAO (2009).

  266. 266.

    The National Food Security Policy has since been approved.

  267. 267.

    DAFF (2012b), pp. 5, 40.

  268. 268.

    See also DAFF & DSD (2013), p. 18, which states that “in line with its international obligations, South Africa has to consider the recommendation of the Food and Agriculture Organisation of the United Nations (FAO) that Member States should consider the enactment of legislation on the right to access to food. The approval of this National Food and Nutrition Security policy could be an initial step towards a Food and Nutrition Security Act for South Africa, which would give statutory force to such structures. A Green and White Paper process is envisaged to prepare for this.”

  269. 269.

    Terblanche and Pienaar (2012), pp. 232–233.

  270. 270.

    Enacted per section 27(2) of the Constitution as a legislative measure for the realization of the right to have access to health care services, including reproductive health as enshrined in section 27(1)(a) of the Constitution.

  271. 271.

    Enacted per section 24(b) of the Constitution as a legislative measure for the realization of everyone’s right to an environment that is not harmful to their health or well-being as enshrined in section 24(a) of the Constitution.

  272. 272.

    Enacted via section 27(2) of the Constitution as a legislative measure for the realization of the right to have access to sufficient water as enshrined in section 27(1)(b) of the Constitution.

  273. 273.

    Enacted via section 26(2) of the Constitution as a legislative measure for the realization of the right to have access to adequate housing as enshrined in section 26(1) of the Constitution.

  274. 274.

    Enacted per section 27(2) of the Constitution as a legislative measure for the realization of the right to have access to social security (including, if they are unable to support themselves and their dependents, appropriate social assistance) as enshrined in section 27(1)(c) of the Constitution.

  275. 275.

    Government of the Republic of South Africa v Grootboom (2001), 1 SA 46 (CC).

  276. 276.

    As enshrined in the South African Constitution. See section 26(1-2) of.

  277. 277.

    However, the Constitutional Court did not need to elaborate on the enactment of a framework law for housing since the Housing Act 107 of 1997 already existed at the time of the hearing of the Grootboom-case. See the Grootboom-case (2001), para. 40.

  278. 278.

    Ibid with reference to the right to have access to adequate housing.

  279. 279.

    The section states that “the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.” This refers to section 26(1) of the Constitution, which provides for the right to have access to adequate housing. See ibid.

  280. 280.

    The section obliges the state to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights.” This refers to section 27(1) of the Constitution, including section 27(1)(b) which ensures the right to have access to sufficient food. See ibid.

  281. 281.

    Khoza (2005), p. 192.

  282. 282.

    CESCR (1999).

  283. 283.

    Ibid, para. 29 states that: “in implementing the country-specific strategies referred to above, States should set verifiable benchmarks for subsequent national and international monitoring. In this connection, States should consider the adoption of a framework law as a major instrument in the implementation of the national strategy concerning the right to food. The framework law should include provisions on its purpose; the targets or goals to be achieved and the time frame to be set for the achievement of those targets; the means by which the purpose could be achieved described in broad terms, in particular the intended collaboration with civil society and the private sector and with international organizations; institutional responsibility for the process; and the national mechanisms for its monitoring, as well as possible recourse procedures. In developing the benchmarks and framework legislation, States parties should actively involve civil society organizations.”

  284. 284.

    FAO (2009).

  285. 285.

    The FAO indicated that an increasing number of countries have enacted food security framework laws over the last 10 years, including a few African countries like Angola, Mozambique and Zanzibar. For the complete list see ibid.

  286. 286.

    Ibid.

  287. 287.

    Garrett (2005), pp. 717–718; Coomans and Yakpo (2004), pp. 17, 20.

  288. 288.

    Health Systems Trust (2005), National Health Act Proclaimed by the President; FAO (2009), p. 57.

  289. 289.

    Ibid.

  290. 290.

    See FAO (2009), p. 57. The general nature of framework legislation is summarized as “establish[ing] a general frame for action, framework legislation does not regulate the areas it covers in detail. Instead, it lays down general principles and obligations but leaves it to implementing legislation and other authorities to determine specific measures to be taken to realize such obligations, possibly within a given time frame.”

  291. 291.

    Khoza (2004), p. 672; CESCR (1999), p. 29; Terblanche (2011), pp. 194–196.

  292. 292.

    Khoza (2004), p. 672.

  293. 293.

    See also Coomans and Yakpo (2004), p. 20 and Garrett (2005), p. 741.

  294. 294.

    Ibid, p. 733 indicates that a framework act may indicate the legislator’s decision to solve or address a certain problem or matter, can lay down neutral laws, and facilitate coordinated action.

  295. 295.

    Vapnek and Spreij (2005), pp. 155–158, 168–173, 196–198.

  296. 296.

    Or at least identify the relevant body/official responsible for establishing the abovementioned operational instruments (usually within a given timeframe). See Khoza (2005), p. 197 and CESCR (1999), para. 29.

  297. 297.

    Ibid.

  298. 298.

    Vapnek and Spreij (2005), pp. 158–160.

  299. 299.

    FAO (2009), pp. 4–5.

  300. 300.

    Khoza (2004), p. 672.

  301. 301.

    Ibid, p. 669.

  302. 302.

    Ibid, pp. 669–670.

  303. 303.

    Ibid.

  304. 304.

    Ibid.

  305. 305.

    Ibid, p. 197.

  306. 306.

    Ibid, pp. 187–204.

  307. 307.

    Ibid.

  308. 308.

    Ibid; Coomans and Yakpo (2004), p. 22; FAO (2009), p. 4.

  309. 309.

    Khoza (2004), p. 677.

  310. 310.

    For example, transparency, participation and accountability. See ibid, p. 194.

  311. 311.

    Coomans and Yakpo (2004), p. 21.

  312. 312.

    Khoza (2005), p. 194; FAO (2009), p. 4.

  313. 313.

    Namely on national, provincial and local level.

  314. 314.

    Khoza (2004), p. 677; Khoza (2005), pp. 194, 196; FAO (2009), pp. 4, 54; Coomans and Yakpo (2004), p. 22.

  315. 315.

    Khoza (2005), p. 194; FAO (2009), p. 4.

  316. 316.

    Khoza (2004), p. 677; Coomans and Yakpo (2004), p. 22.

  317. 317.

    Khoza (2005), p. 197.

  318. 318.

    DAFF & DSD (2013), p. 6.

  319. 319.

    Ibid.

  320. 320.

    These include the national departments of Basic Education; Higher Education and Training; Health; Agriculture, Forestry and Fisheries; Environmental Affairs; Social Development and the Department of Women, Children en People with Disabilities. See FAO (2009), pp. 139–142, 144–145 for possible structure and composition options.

  321. 321.

    Ibid, p. 144.

  322. 322.

    Ibid.

  323. 323.

    See also ibid, p. 6, which states that “the participation of stakeholders during the drafting stages will reveal the scope of interests and concerns pertaining to the realization of the right to food. As such, framework laws provide improved policy coherence and can ensure that the right to food is central to a country’s development strategies. In addition, the institutional framework established by the framework law for coordination and consultation purposes should include provisions on participation of non-governmental stakeholders, as most of them do.”

  324. 324.

    Ibid, p. 144.

  325. 325.

    Ibid, pp. 142–144.

  326. 326.

    Ibid.

  327. 327.

    Mandela (1994), Statement of Nelson Mandela at his Inauguration as President.

  328. 328.

    Own emphasize.

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  1. Faculty of Law, North-West University, Potchefstroom, South Africa

    Anél Gildenhuys

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    Gabriela Steier

  2. Food Law International, LLP, Washington, DC, USA

    Kiran K. Patel

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Gildenhuys, A. (2016). Food Law in South Africa: Towards a South African Food Security Framework Act. In: Steier, G., Patel, K. (eds) International Food Law and Policy. Springer, Cham. https://doi.org/10.1007/978-3-319-07542-6_47

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