VZCZCXRO1741
RR RUEHDU RUEHJO
DE RUEHSA #0361/01 0560917
ZNR UUUUU ZZH
R 250917Z FEB 09
FM AMEMBASSY PRETORIA
TO RUEHC/SECSTATE WASHDC 7485
RUEHRC/USDA FAS WASHDC 2004
INFO RUEHTN/AMCONSUL CAPE TOWN 6588
RUEHJO/AMCONSUL JOHANNESBURG 8927
RUEHDU/AMCONSUL DURBAN 0709

UNCLAS SECTION 01 OF 02 PRETORIA 000361 
 
SIPDIS 
 
DEPT FOR EB/TPP/ABT, OES/PCI, AND AF/S 
DEPT PASS OES/PCI - SSEYMOUR 
USDA FAS FOR OSTA -PTABOR, FNAIM, EPORTER 
USDA FAS FOR OCRA - KMCKINNELL, AFERRUS 
 
E.O. 12958: N/A 
TAGS: EAGR ECON ETRD KPAO PREL SENV SF TBIO
SUBJECT: RESPONSE TO REQUEST FOR INFORMATION REGARDING ACCESS TO 
GENETIC RESOURCES 
 
REF: STATE 009667 
 
Summary 
------------ 
¶1.  AGATTACHE collected information on access to genetic resources 
in South Africa through discussions with Department of Environmental 
Affairs and Tourism and private sector contacts.  The following 
provides a brief overview of this complex issue.  While this cable 
is intended to answer questions posed in reftel, there are some 
areas that are still being investigated.  Post will follow up with 
further information via email. 
 
Relevant laws 
---------------- 
¶2. Relevant laws and procedures that researchers must fulfill in 
order to conduct research about biological or genetic resources are 
found in the National Environmental Management: Biodiversity Act 
(Act no. 10 of 2004) (NEMBA) and the Bioprospecting, Access, and 
Benefit Sharing Regulations that came into effect April 10, 2008 and 
 were developed in terms of Chapter 6 , 7 and section 97 (1)d ,e ,f 
,g &h of the National Environmental Management: Biodiversiy Act 
(Act no. 10 of 2004) (NEMBA).  Both of these pieces of legislation 
are administered by the Department of Environmental Affairs and 
Tourism (DEAT). 
 
Permits under NEMBA 
---------------- 
 
¶3. According to the NEMBA, permits must be issued for a) restricted 
activities involving specimens of threatened or protected species, 
alien species, or listed invasive species; b)activities regulated in 
terms of a notice issued by the Minister of Environmental Affair and 
Tourism (Minister); c) bioprospecting involving indigenous 
biological resources as defined in the Chapter 7, section 81 of the 
NEMBA; or, d) the export of indigenous biological resources for 
bioprospecting or any other type of research as defined in the 
Chapter 7, section 81 of the NEMBA. 
 
Bioprospecting and ABS Regulations 
---------------- 
 
¶4. The purpose of the Bioprospecting, Access, and Benefit Sharing 
Regulations is to further regulate the permit system set out in 
Chapter 7 of NEMBA insofar as that system applies to bioprospecting 
involving any indigenous biological resources or export from the 
Republic of any indigenous biological resources for the purpose of 
bioprospecting or any other kind of research.  Additionally, the 
regulation sets out the contents of and the requirements and 
criteria for, benefit-sharing and material transfer agreements. 
 
¶5. There are three types of permits, namely: 
 
a) Bioprospecting Permit: This permit is only issued if the 
envisaged bio-prospecting project will be done in South Africa using 
indigenous biological resources; the permit is issued by the 
Minister of Environmental Affairs and Tourism. 
 
b) Integrated export and bio-prospecting Permit: This permit is only 
issued if the bio-prospecting project will be done in a foreign 
country using indigenous biological resources to South Africa; the 
permit is issued by the Minister 
 
c) Export Permit for research other than bio-prospecting: This 
permit is only issued if the research project will be done in a 
foreign country using indigenous biological resources to South 
Africa. (NOTE: this only applies to the investigation of indigenous 
¶6. biological resources in order to generate scientific knowledge). 
This permit is issued by the relevant members of the executive 
council of the province if the indigenous biological resources to be 
exported are collected, gathered or curated in that province. 
Qexported are collected, gathered or curated in that province. 
 
Issuance of Permits 
---------------- 
 
¶7. A permit in terms of the Biodiversity Act may only be issued to 
a) a juristic person registered in terms of South African law; b) a 
natural person who is a South African citizen or permanent resident 
of South Africa; or, c) a juristic person that is not registered in 
terms of South African law or a natural person who is not a South 
African citizen or permanent resident of South Africa, if that 
juristic person or foreign national applies jointly with a juristic 
or natural person referred to in a) or b). 
 
Material Transfer and Benefit Sharing Agreements 
 
PRETORIA 00000361  002 OF 002 
 
 
----------------- 
 
¶8. An applicant for a bioprospecting permit must enter into a 
material transfer agreement and a benefit sharing agreement with the 
relevant person, organ of state, or community who will provide 
access to the indigenous biological resources and those agreements 
must be based on full disclosure of material information. 
Similarly, if the project was initiated by, or will make use of, 
traditional knowledge, discoveries, or use of an indigenous 
community in respect of the indigenous biological resources to which 
the application relates, the applicant must enter into a 
benefit-sharing agreement with that community. 
 
¶9. The Minister of Environmental Affairs and Tourism must approve 
all material transfer agreements.  Before approving a benefit 
sharing agreement, the Minister of Environmental Affairs and Tourism 
must be satisfied that the agreement is fair and equitable to all 
parties; may consult any person competent to provide technical 
advice on the agreement and may invite public comment on the 
agreement provided no confidential information is made public.  The 
Minister may refuse to approve a benefit sharing agreement unless 
the agreement makes some provision for enhancing the scientific 
knowledge and technical capacity of persons, organs of state, or 
indigenous communities to conserve, use, and develop biological 
resources; or, any other activity that promotes the conservation, 
sustainable use, and development of the relevant indigenous 
biological resources. 
 
Bioprospecting Trust Fund 
----------------- 
 
¶10. Money arising from benefit-sharing agreements and due to 
stakeholders must be paid into the Bioprospecting Trust Fund.  This 
fund will be managed in accordance with South African Treasury 
Regulations.  Each benefit-sharing agreement must be regarded as the 
trust instrument that details the specific purpose for which money 
received by the Bioprospecting Trust Fund may be used.  The 
Director-General is responsible for the safe-keeping and use of the 
fund and may charge a reasonable fee for the administration of the 
money received.  The Director-General will also notify stakeholders 
the amount due to each stakeholder in terms of the agreement and 
will distribute the monies in accordance with the agreement. 
 
¶11. If for whatever reason there is surplus money in the fund that 
is not due to any party of a benefit-sharing agreement, the 
Director-General must use the money to conserve the indigenous 
biological resources; support further research on indigenous 
biological resources and indigenous knowledge; build capacity 
amongst indigenous communities; enhance scientific knowledge and 
technical capacity to conserve, use, and develop indigenous 
biological resources; or, any other activity that promotes the 
conservation, sustainable use, and development of indigenous 
biological resources for the benefit of South Africa. 
 
Further Information 
---------------------- 
¶12. The above is a summary of current laws and regulations involving 
the complex issue of ABS.  More specific information can be found in 
the complete NEMBA and associated Bioprospecting, Access, and 
Benefit Sharing Regulations at 
www.deat.gov.za//PolLeg/Legislation/2006Nov2/ NEMBA.pdf  and 
www.deat.gov.za//PolLeg/Legislation/2008May29 / 
Bio_Prospecting_Regulation08%20February2008.p df, respectively, or by 
QBio_Prospecting_Regulation08%20February2008. pdf, respectively, or by 
contacting Post. Within these documents are examples of Benefit 
Sharing Agreements, Material Transfer Agreements, and different 
types of research and bioprospecting permits. 
 
¶13. NOTE: South Africa's CBD focal point has this information 
readily available on the website: www.deat.gov.za.  Contacts at the 
DEAT are well versed in the subject matter and were open to 
discussions with AGATTACHE. END NOTE. 
 
¶14. Please contact Kari Rojas (FAS/Pretoria) kari.rojas@fas.usda.gov 
with specific questions.