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Bio-prospecting, Access and Benefit-Sharing Regulations, 2008, South Africa

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Repealed Text 
Details Details Year of Version 2008 Dates Entry into force: April 1, 2008 Adopted: February 8, 2008 Type of Text Implementing Rules/Regulations Subject Matter Undisclosed Information (Trade Secrets), Genetic Resources, Traditional Knowledge (TK), Other

Available Materials

Main Text(s) Related Text(s)
Main text(s) Main text(s) English Bio-prospecting, Access and Benefit-Sharing Regulations, 2008        
 National Environmental Management: Biodiversity Act: Regulations: Bio-prospecting, access and benefit-sharing

4 No. 30739 GOVERNMENT GAZElTE, 8 FEBRUARY 2008

No. R. 138 8 February 2008

NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITYACT, 2004:

REGULATIONS ON BIO-PROSPECTING,ACCESS AND BENEFIT-SHARING

The Minister of Environmental Affairs and Tourism has, under section 97(1) (d),

(e), (9, (g) and (h) of the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004), made the Regulations in the Schedule.

INTERPRETATION AND PURPOSE OF REGULATIONS

1 Definitions

2. Purpose of Regulations

3. Application of Regulations

CHAPTER I

CONDITIONS UNDER WHICH BIOPROSPECTINGAND RESEARCH OTHER

THAN BIOPROSPECTING MAY BE CARRIED OUT

4. Bioprospecting

5. Research other than bioprospecting

STAATSKOERANT, 8 FEBRUARIE 2008 No. 30739 5

CHAPTER 2

PERMIT SYSTEM FOR BIOPROSPECTING AND EXPORTING INDIGENOUS

BIOLOGICAL RESOURCES

Part 7: Issuing authorities

6. Designation of issuing authorities

7. Powers and duties of issuing authorities

8. Conditions subject to which issuing authorities may issue permits

Part 2: Application for permits

9. Applicants

10. Application procedure

Part 3: Issuing of permits and content of permits

11. Bioprospectingpermits

12. Integrated export and bioprospecting permits

13. Export permit for research other than bioprospecting

Part 4: Appeals

14. Decisions that are subject to appeal

15. Procedure on appeal

CHAPTER 3

MATERIAL TRANSFER AGREEMENTS, BENEFIT-SHARING AGREEMENTS

AND THE ADMINISTRATION OF THE BIOPROSPECTING TRUST FUND

Part 7: Agreements

6 No. 30739 GOVERNMENT GAZETE, 8 FEBRUARY 2008

16. Material transfer agreements

17. Benefit-sharing agreements

18. Duties of the permit-holder

Part 2: Administration of the Bioprospecting Trust Fund

19. The administration of the Bioprospecting Trust Fund

CHAPTER 4

GENERAL

20. Offences

21. Penalties

22. Transitional provisions

23. Short Title and Commencement

STAATSKOERANT, 8 FEBRUARIE 2008 No. 30739 7

INTERPRETATIONAND PURPOSE OF REGULATIONS

Definitions

1. In these Regulations, a word or expression to which a meaning has been

assigned in the Act has the meaning so assigned and, unless the context

otherwise indicates -.

"the Act" means the National Environmental Management: Biodiversity Act,

2004 (Act No. 10 of 2004).

"any other kind of research" means research other than bioprospectingand -

(a) includes the systematic collection, study or investigation of indigenous

biological resources, conducted under the auspices of a bona fide research

institute or organisation to generate scientific knowledge; but

(b) excludes incidental surveys and searches;

"applicant" means a person who has submitted, a permit application;

"benefit-sharing agreement" means an agreement in the form of Annexure 8,

concluded between an applicant for a permit and a stakeholder, which provides

for sharing by the stakeholder in any future benefits that may be derived from the

bioprospecting to which the application relates;

"bioprospecting permit" means a permit, issued in terms of section 88

of the Act, to engage in the discovery phase and/or commercialisation phase of

a bioprospecting project;

"Bioprospecting Trust Fund" means the Fund established by section 85(1) of

the Act:

"commercialisation" includes the following activities in relation to indigenous

biological resources -

8 No. 30739 GOVERNMENT GAZETTE, 8 FEBRUARY 2008

(a) the filing of any complete intellectual property application, whether in South

Africa or elsewhere:

(b) obtaining or transferring any intellectual property rights or other rights;

(c) commencing clinical trials and product development, including the

conducting of market research and seeking pre-market approval for the sale

of resulting products;or

(d) the multiplication of indigenous biological resources through cultivation,

propagation, cloning or other means to develop and produce products, such

as drugs, industrial enzymes, food flavours, fragrance, cosmetics,

emulsifiers, oleoresins, colours and extracts;

"commercialisation phase of a bioprospecting project" means any research

on, or development or application of, indigenous biological resources where the

nature and extent of any actual or potential commercial or industrial exploitation

in relation to the project is sufficiently established to begin the process of

commercialisation;

"confidential information" means information which, if disclosed, may be

detrimental to the commercial or financial interests of a party to a benefit-sharing

agreement, and -

(a) includes-

(0 information about research being or to be carried out including details of species to be collected and areas in which specified

species are to be collected;

(ii) financial commercial, scientific or technical information including

trade secrets;

(iii) indigenous knowledge if the disclosure of that knowledge may be

detrimental to the relevant indigenouscommunity; but

(a) excludes information-

STAATSKOERANT, 8 FEBRUARIE 2008 No. 30739 9

(0 that has already been disclosed through publication in a scientific

journal;

(ii) if the parties consent to its disclosure;

"discovery phase of a bioprospecting project" means any research on, or

development or application of, indigenous biological resources where the nature

and extent of any actual or potential commercial or industrial exploitation in

relation to the project is not sufficiently clear or known to begin the process of

commercialisation;

"export permit for research other than bioprospecting" means a permit,

issued in terms of section 88 of the Act, for exporting from the Republic any

indigenous biological resources for the purposes of research other than

bioprospecting;

"indigenous community" means any community of people living or having

rights or interests in a distinct geographical area within the Republic of South

Africa with a leadership structure and-

(a) whose traditional uses of the indigenous biological resources to which an

application for a permit relates, have initiated or will contribute to or form

part of the proposed bioprospecting;or

(b) whose knowledge of or discoveries about the indigenous biological

resources to which an application for a permit relates are to be used for the

proposed bioprospecting;

"indigenous use or knowledge" includes knowledge of, discoveries about or

the traditional use of indigenous biological resources, if that knowledge, discovery

or use has initiated or will contribute to or form part of a proposed bio-prospecting

or research project to which an application for a permit relates;

"integrated export and bioprospecting permit" means a permit, issued in

terms of section 88 of the Act to export indigenous biological resources for the

purpose of bioprospecting;

10 No. 30739 GOVERNMENT GAZETTE, 8 FEBRUARY 2008

"material transfer agreement" means an agreement in the form of Annexure 7

between an applicant for a permit and a person, including any organ of state or

community, providing or giving access to the indigenous biological resources to

which the application relates;

"NEMA" means the National Environmental Management Act, 1998 (Act No. 107

of 1998)

"permit" means a permit issued in terms of Chapter 7, being a bioprospecting

permit; an integrated export and bioprospecting permit; or an export permit for

research other than bioprospecting;

"traditional use or knowledge" refers to the customary utilisation or knowledge

of indigenous biological resources by an indigenous community, in accordance

with written or unwritten rules, usages, customs or practices traditionally

observed, accepted and recognised by them, and includes discoveries about the

relevant indigenous biological resources by that community.

Purpose of Regulations

2. The purpose of these Regulations is to -

(a) further regulate the permit system set out in Chapter 7 of the Act 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

and;

(b) set out the contents of, the requirements and criteria for benefit-sharing

and material transfer agreements.

3. Application of Regulations

(1) These regulations govern -

(a) the discovery phase and/or commercialisation phase of a bioprospecting

project;

STAATSKOERANT, 8 FEBRUARIE 2008 No. 30739 11

(b) the export from the Republic of any indigenous biological resources for the

purpose of bioprospecting; and

(c) the export from the Republic of any indigenous biological resources for any

other kind of research.

CHAPTER 1

CONDITIONS.UNDERWHICH BIOPROSPECTINGAND RESEARCH OTHER

THAN BIOPROSPECTINGMAY BE CARRIED OUT

Bioprospecting

4. (1) Discovery phase and/or commercialisation phase of a bioprospecting

project may only be carried out with a bioprospecting permit issued by the

Minister.

(2) If the applicant for a bioprospecting permit intends exporting the

indigenous biological resources to which the application relates, the applicant

must apply to the Minister for an integrated export and bioprospecting permit.

(3) The Minister may only issue a bioprospecting permit or an integrated

export and bioprospecting permit after complying with the requirements of

Regulations 8(1) and 9(1).

Research other than bioprospecting

5. (1) Indigenous biological resources may only be exported for a research

purpose other than bioprospecting with an export permit issued by the issuing

authority identified in Regulation6.

(2) An export permit for research other than bioprospecting may be issued

as part of an integrated permit provided the issuing authority complies with

section 92 of the Act.

(3) Before issuing an export permit for research other than bioprospecting,

the issuing authority must comply with Regulations 9(1) and 13(1).

12 No. 30739 GOVERNMENT GAZElTE, 8 FEBRUARY 2008

CHAPTER 2

PERMIT SYSTEM FOR BIOPROSPECTING AND EXPORTING INDIGENOUS

BIOLOGICAL RESOURCES

Part I: issuing authorities

Designation of issuing authorities

6. (1) The Minister is the issuing authority for -

(a) bioprospecting permits; and

(b) integrated export and bioprospecting permits, if the indigenous biological

resources are being exported for the purposes of bioprospecting.

(2) The MEC is designated as the issuing authority for export permits, if

the indigenous biological resources are being exported for research purposes

other than bioprospecting, and the indigenous biological resources to be exported

are collected, gathered or curated in that province.

(3) Delegation of powers and duties by an issuing authority can only be

done in accordance with sections 42 and 42A of the NEMA.

Powers and duties of issuing authorities

7. (1) An issuing authority must process all applications within a reasonable

time.

(2) Before issuing a permit in terms of these Regulations, an issuing

authority must satisfy itself that -

(a) the impact of the relevant activity on the indigenous biological resources will

be negligible or will be minimised and remedied; and

STAATSKOERANT, 8 FEBRUARlE 2008 No. 30739 13

(b) the relevant activity will not deplete an indigenous biological resource

beyond a level where its integrity is jeopardised.

(5) On receipt of an application for a permit an issuing authority -

(a) must consider the application;

(b) may require' the applicant or any stakeholders to furnish additional

information;

(c). may require an applicant to undertake a risk assessment in accordance with

section 89 of the Act or in terms of any other regulations promulgated in

terms of the Act.

(3) After having reached a decision on an application for a permit an

issuing authority must -

(a) notify the applicant of the decision in writing within 15 working days after

making the decision;

(b) if the application was approved, issue the permit, amend the permit, or

renew the permit, as the case may be, within 15 working days after making

the decision;

(c) if the application was refused -

(i) notify the applicant of the decision in writing within 15 working days

after making the decision;

(ii) give reasons for the refusal; and

(iii) inform the applicant of the applicant's right to appeal against the

decision in terms of section 94 of the Act and Regulation 16.

(4) An issuing authority must monitor all permit holders to ensure

compliance with permit conditions.

14 No. 30739 GOVERNMENT GAZETTE, 8 FEBRUARY 2008

Conditions subject to which issuing authorities may issue permits

8. (1) The Minister may only issue a bioprospecting permit or an integrated

export and bioprospecting permit, if the Minister is satisfied that -

(a) the relevant stakeholders have been identified in accordance with the

principles set out in section 82 of the Act;

(b) there has been disclosure of relevant information to all the stakeholders that

have been identified;

(c) the applicant has obtained the prior consent of any person, including any

organ of state or community providing or giving access to the indigenous

biological resources to which the application relates, and material transfer

agreements and benefit-sharing agreements have been entered into with

such stakeholders;

(d) the applicant has obtained the prior consent of affected indigenous

communities, and benefit-sharing agreements have been entered into with

such communities.

(2) In order to satisfy himself or herself that the requirements of the Act

and these Regulations have been met, the Minister may require an applicant for a

bioprospecting permit or an integrated export and bioprospecting permit to -

(a) show what steps have been taken to identify stakeholders;

(b) take further steps to identify stakeholders;

(c) provide evidence that relevant information relating to the bioprospecting has

been disclosed to the identified stakeholders:

(d) provide evidence that the prior consent of identified stakeholders has been

obtained.

STAATSKOERANT, 8 FEBRUARIE 2008 No. 30739 15

Part 2: Application for permits

Applicant

9. (1) A permit in terms of the 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 a permanent resident of

South Africa;

(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 a permanent resident of

South Africa, if that juristic person or foreign national applies jointly with a

juristic or natural person referred to in paragraphs (a) or (b) above.

(2) An applicant for a permit must -

(a) disclose if, in respect of the indigenous biological resources to which the

application relates-

(i) any other application for a permit in terms of the Act or in terms of any

other legislation has been submitted to any authority either previously or

simultaneously with the current application; and

(ii) whether that application was refused or granted or is still pending;

(b) if the bioprospecting was preceded by researchother than bioprospecting in

relation to the indigenous biological resources to which the application

relates, disclose the nature of the research and the activities resulting in the

application for a bioprospecting permit.

Application procedure

10. (1) An application for a bioprospecting permit must be submitted to the

Minister and must -

(a) be in the form of Part 1 of Annexure 2 to these Regulations;

16 No. 30739 GOVERNMENT GAZETTE, 8 FEBRUARY 2008

(b) contain sufficient information to enable the Minister to make the relevant

assessment.

(2) An application for an integrated export and bioprospecting permit must

be submitted to the Minister and must -

(a) be in the form of Parts 1 and 2 of Annexure 2 to these Regulations;

(b) contain sufficient information to enable the Minister to make the relevant

assessment.

(3) If material transfer agreements or benefit-sharing agreements are

required by the Act, an applicant for a bioprospecting permit or an integrated

export and bioprospecting permit must attach to the application for such permit -

(a) , signed material transfer agreements or benefit-sharing agreements if such

agreements have been concluded; or

(b) if it has not been possible to conclude such agreements, a request for the

intervention of the Minister for the purposes of negotiating such agreements,

in accordance with section 82(4)(b)of the Act.

(4) An application for an export permit for research purposes other than

bioprospecting must be submitted to the MEC identified in regulation 6(2) and

must -

(a) be in the form of Annexure 3 to these Regulations;

(b) contain sufficient information to enable the MEC to make the relevant

assessment.

Part 3: Issuing of permits and content of permits

Bioprospecting permits

11. (1) A bioprospecting permit may only be issued if -

~1 STAATSKOERANT,8 FEBRUARIE 2008 No. 30739 17

(a) the Minister has approved any material transfer agreements or benefit-

sharing agreements that are required by the Act and have been submitted

to the Minister; and

I i (b) the non-refundable fee specified in Annexure 1 has been paid.

I I (2) A bioprospecting permit must -

(a) be in the form of Annexure 4 to these Regulations;

(b) specify the period for which the permit is valid;

(c) specify the indigenous biological resources involved;

(d) specify the quantity of indigenous biological resources involved;

(e) specify the source of the indigenous biological resources;

(f) be issued subject to conditions as determined by the Minister, which

conditions must include that -

all money due to stakeholders in terms of a benefit-sharing

agreement must be paid into the Bioprospecting Trust Fund, as

required by section 85(1) of the Act;

the permit-holder must, on an annual basis, submit a status report to

the Minister in a format determined by the Minister;

the permit-holder will be liable for the costs of mitigating or remedying

the impact of the bioprospecting on the environment, in accordance

with section 28 of the NEMA; and

the indigenous biological resources to which a permit relates may not

be sold, donated or transferred to a third party without the written

consent of the Minister.

18 No. 30739 GOVERNMENT GAZElTE, 8 FEBRUARY 2008

Integrated export and bioprospecting permits

12. (1) An integrated export and bioprospecting permit may only be issued if

the Minister is satisfied that the export of indigenous biological resources for

bioprospecting will be for a purpose that is in the public interest, including -

(a) the conservation of biodiversity in South Africa;

(b) the economic development of South Africa; or

(c) enhancing the scientific knowledge and technical capacity of South African

people and institutions.

(2) An integrated export and bioprospectingpermit must -

(a) be in the form of Annexure 5 to these Regulations;

(b) specify the period for which the permit is valid;

(c) specify the indigenous biological resources involved;

(d) specify the quantity of indigenous biological resources involved;

(e) specify the source of the indigenous biological resources;

(f) be issued subject to conditions as determined by the Minister, which

conditions must include that -

(i) all money due to stakeholders in terms of a benefit-sharing

agreement must be paid into the Bioprospecting Trust Fund, as

required by section 85(1) of the Act;

(ii) the permit-holder must, on an annual basis, submit a status report to

the Minister in a format determined by the Minister;

(iii) the permit-holder will be liable for the costs of mitigating or remedying

the impact of the bioprospecting on the environment, in accordance

with section 28 of the NEMA; and

STAATSKOERANT, 8 FEBRUARIE 2008

(iv) the indigenous biological resources to which a permit relates may not

be sold, donated or transferred to a third party without the written

consent of the Minister.

Export permit for research other than bioprospecting

13. (1) An export permit for research other than bioprospecting may only be

issued if the issuing authority identified in Regulation 6 is satisfied that the export

of the relevant indigenous biological resources will be for a purpose that is in the

public interest, including -

(a) the conservation of biodiversity in South Africa;

(b) the economic development of South Africa; or

(c) enhancing the scientific knowledge and technical capacity of South African

people and institutions.

(2) An export permit for the export of indigenous biological resources for

research purposes other than bioprospecting-

(a) must be in the form of Annexure 6 to these Regulations;

(b) must indicate the period for which it is valid;

(c) must specify the indigenous biological resources involved;

(d) must specify the quantity of indigenous biological resources involved;

(e) must specify the source of the indigenous biological resources; and

(f) must be issued subject to the following conditions -

(i) the indigenous biological resources to which the permit relates, may

only be used for non-commercial research purposes as specified on

the permit;

(ii) the indigenous biological resources to which the permit relates may

not be used for bioprospecting purposes;

20 No. 30739 GOVERNMENT GAZETTE, 8 FEBRUARY 2008

(iii) the permit-holder will be liable for the costs of mitigating or

remedying the impact of the export on the environment, in

accordance with section 28 of the NEMA;

(iv) the indigenous biological resources to which the permit relates may

not be sold, donated or transferred to a third party without the

written consent of the issuing authority, which consent will not be

given if the third party intends using the resources for

bioprospecting purposes; and

(v) the permit-holder must, on an annual basis or on timeframes as

determined by the issuing authority, submit a status report to the

issuing authority in a format determined by the issuing authority.

Part 4: Appeals

Decisions that are subject to appeal

14. (1) An applicant may appeal, in terms of section 94 of the Act, any

decision to -

(a) refuse a permit;

(b) impose permit conditions that are in addition to mandatory conditions

required to be imposed in terms of these Regulations;

(c) cancel a permit.

STAATSKOERANT,8 FEBRUARlE 2008 No. 30739 21

Procedure on appeal

15. (1) An appeal must be lodged with the Minister within 30 days of the

applicant receiving notificationof the decision being appealed against.

(2) Stakeholders who have an interest in the appeal must be provided with

a copy of the appeal and must be notified that they have 15 days from date of

notification to lodge submissions in relation to the appeal with the Minister.

(3) An appeal must -

(a) set out the grounds on which the decision is being appealed;

(b) identify any stakeholders who have an interest in the appeal and provide

proof that a copy of the appeal has been served on all stakeholders; and

(c) be accompanied by the non-refundablefee set out in Annexure 1.

CHAPTER 3

MATERIAL TRANSFER AGREEMENTS, BENEFIT-SHARINGAGREEMENTS

AND THE ADMINISTRATION OF THE BIOPROSPECTING TRUST FUND

Part 1: Agreements

Material transfer agreements

16. (1) Parties to a material transfer agreement are the applicant and the

stakeholder as described in paragraphs 82(l)(a) and (b) of the Act who provides

or gives access to the indigenous biological resources to which an application

relates.

(2) The Minister must approve all material transfer agreements or any

amendment to such agreements, in accordance with section 84(2) of the Act.

(3) A material transfer agreement must be in the form of Annexure 7 and

must contain the information specified in section 84(l)(b) of the Act.

22 No. 30739 GOVERNMENT GAZETTE, 8 FEBRUARY 2008

Benefit-sharing agreements

17. (1) Parties to a benefit-sharing agreement are the applicant and the

stakeholders referred to in section 82(l)(a) and (b) of the Act.

(2) A benefit-sharing agreement must be in the form of Annexure 8 and

must comply with subsections 83(1) and (2) of the Act;

(3) Before approving a benefit-sharing agreement or an amendment to

such agreement, the Minister -

(a) must be satisfied that the agreement is fair and equitable to all parties;

(b) may consult any person competent to provide technical advice on the

agreement; and

(c) may invite public comment on the agreement provided that no confidential

information is made public.

(4) The Minister may refuse to approve a benefit-sharing agreement

unless such agreement makes some provision for -

(a) enhancing the scientific knowledge and technical capacity of persons,

organs of state or indigenous communities to conserve, use and develop

indigenous biological resources; or

(b) any other activity that promotes the conservation, sustainable use and

development of the relevant indigenous biological resources.

(5) Permit-holders must lodge a copy of all benefit-sharing agreements

with the Director-General, within one month of an agreement being concluded or

within one month of any amendments to such agreement being concluded.

STAATSKOERANT, 8 FEBRUARIE 2008 No. 30739 23

Duties of Permit-holder

18. (1) The holder of a bioprospecting permit or an integrated export and

bioprospecting permit must -

(a) notify the Director-General when money due to stakeholders as specified in

the benefit-sharing agreement will be transferred or paid into the

BioprospectingTrust Fund;

(b) notify stakeholders entitled to a monetary benefit in terms of a benefit-

sharing agreement that money was transferred or paid into the

BioprospectingTrust Fund.

Part 2: Administration of the Bioprospecting Trust Fund

The administration of the Bioprospecting Trust Fund

19. (1) In terms of section 85(1) of the Act, all money arising from benefit-

sharing agreements and due to stakeholders must be paid into the

Bioprospecting Trust Fund.

(2) The Bioprospecting Trust Fund will be managed in accordance with

Treasury Regulations issued in terms of the Public Finance Management Act,

1999 (Act No.1 of 1999).

(3) For the purposes of adhering to Treasury Regulations-

each benefit-sharing agreement must be regarded as the trust instrument

that details the specific purpose for which money received by the

BioprospectingTrust Fund may be used;

the Director-General is responsible for the safekeeping and proper use of all

money received by the Bioprospecting Trust Fund, in accordance with the

relevant benefit-sharing agreement;

the Director-General may charge a reasonable fee for the administration of

money received in terms of a benefit-sharingagreement;

24 No. 30739 GOVERNMENT GAZElTE, 8 FEBRUARY 2008 -- --

(4) The Director-General must -

(a) notify all issuing authorities of the banking details of the Bioprospecting

Trust Fund, which details must be handed to permit-holders on issuance of

every permit;

(b) advise parties to a benefit-sharing agreement of -

(i) any money received in respect of that agreement;

(ii) the amount due to each stakeholder in terms of the agreement; and

(c) distribute all monies received in accordance with the relevant benefit-sharing

agreement.

(5) The Director-General's obligations in terms of sub-regulation (4) may

be discharged annually unless a different time period is -

(a) stipulated in the relevant benefit-sharing agreement; or

(b) agreed between the Director-General and the parties to a benefit-sharing

agreement.

(6) If for whatever reason, there is surplus money in the Bioprospecting

Trust Fund that is not due to any party in terms of a benefit-sharing agreement,

the Director-General must use the money for one or more of the following

purposes -

(a) to conserve the indigenous biological resources;

(b) to support further research on indigenous biological resources and

indigenous knowledge;

(c) to build capacity amongst indigenous communities-

(i) as to their rights in terms of the Act; and

(ii) to enable them to negotiate benefit-sharing agreements that are fair

and equitable;

STAATSKOERANT, 8 FEBRUARIE 2008 No. 30739 25

(d) to enhance scientifc knowledge and technical capacity to conserve, use

and develop indigenous biological resources; or

(e) any other activity that promotes the conservation, sustainable use and

development of indigenous biological resources for the benefit of South

Africa.

(7) If it is not possible, for whatever reason, to pay any party money due to

them in terms of a benefit-sharing agreement, the Director-General must -

(a) ascertain if there is another person or body to whom the money should

legally be paid;

(b) if there is no identifiable person or body to whom the money must be paid,

consult any other parties to the relevant agreement as to the distribution of

that money and thereafter distribute the money fairly and equitably between

remaining stakeholders, if any;

(c) if there are no other stakeholders, distribute the money in accordance with

sub-regulation (6).

CHAPTER 4

GENERAL

Offences

20. A person is guilty of an offence if that person -

(a) without a permit -

(1) undertakes bioprospecting involving indigenous biological

resources;

(ii) exports from the Republic any indigenous biological resources for

the purpose of bioprospecting or any other research;

26 No. 30739 GOVERNMENT GAZETTE, 8 FEBRUARY2008

(b) performs the activity for which the permit was issued otherwise than in

accordance with any conditions subject to which a permit was issued;

(c) permits or allow any other person to do, or to omit to do anything which is

an offence in terms of these regulations;

Penalties

21. (1) A person convicted of an offence in terms of regulation 20 is liable to -

(a) imprisonment for a period not exceeding five years;

(b) an appropriate fine;or

(c) to both a fine and such imprisonment.

(2) A fine in terms of sub-regulation (1) may not exceed an amount

prescribed in terms of the Adjustment of Fines Act, 1991 (Act No. 101 of 1991).

Transitional provisions

22. (1) Subject to sub-regulations (2) and (3), any person involved at the

commencement of these Regulations in a bioprospecting project, may continue

with that project pending the issuing of a bioprospecting permit.

(2) A person involved in a bioprospecting project that has already

commenced must, within six months of these Regulations coming into effect,

submit an application for a bioprospecting permit to the Minister in accordance

with Chapter 2 of these Regulations.

(3) If a bioprospecting project that has already commenced involves

stakeholder interests that are required to be protected by section 82 of the Act,

the applicant for a bioprospecting permit must -

(a) negotiate and enter into appropriate benefit-sharing agreements with

identified stakeholders;

STAATSKOERANT,8 FEBRUARIE 2008 No. 30739 27

(b) attach to the application for a bioprospecting permit submitted to the

Minister in terms of sub-regulation (2) -

signed benefit-sharing agreements entered into with stakeholders; or

a written request for the intervention of the Minister for the purposes of

negotiating such agreements, in accordance with section 82(4)(b) of

the Act, if it has not been possible to conclude benefit-sharing

agreements within the six months referred to in sub-regulation (2).

A bioprospectingproject that has already commenced -

(a) must be terminated if -

(i) an application for a bioprospectingpermit is refused; or

(ii) a benefit-sharing agreement is not concluded notwithstanding the

intervention of the Minister;

(b) may continue if a bioprospecting permit is issued, subject to any conditions

contained in that permit.

Short Title and commencement

23. These Regulationsare called Bioprospecting, Access and Benefit-Sharing

Regulations,2008 and will come into operation on a date fixed by the Minister by

notice in the Gazette.

28 No. 30739 GOVERNMENT GAZElTE, 8 FEBRUARY 2008

ANNEXURE I

PRESCRIBED NON-REFUNDABLE FEES

1. Permit fees

1.1. Bioprospecting permit (Regulation 11)

1.2. Integrated export and bioprospecting permit (Regulation 12) R5 200

1.3. Export permit for the purpose of conducting research other than

bioprospecting (Regulation 13) R 100

2. Appeal in terms of Regulation 15

Appeal fee

STAATSKOERANT, 8 FEBRUARIE 2008 NO.30739 29

ANNEXURE 2

PART 1: APPLICATION FOR A BIOPROSPECTING PERMIT

PART 2: APPLICATION FOR AN EXPORT PERMIT FOR THE

PURPOSES OF BIOPROSPECTING

Notes on completing form:

1. If you are applying for a bioprospecting permit and you do not intend to

export the relevant indigenous biological resources, you need only to

complete part 1 of this form.

2. If you are applying for an integrated export and bioprospecting permit, you

must complete parts 1 and 2 of this form.

3. If insufficient space is provided in this form, additional information may be

included by way of Annexures.

KIND OF PERMIT APPLIED FOR (Tick relevant box)

Bioprospecting permit: 0 Integrated export and bioprospecting permit: 0

PHASE OF BIOPROSPECTING PROJECT (Tick relevant box)

Discovery phase: 0 Commercialisation phase: 0

30 No. 30739 GOVERNMENT GAZElTE, 8 FEBRUARY 2008

PART I:APPLICATION FOR A BIOPROSPECTING PERMIT

APPLICANT

If applicant is ajuristic person complete clauses 7 - 7 below

I.Full name of institution or body:

2. Is the juristic body registered in South Africa? YIN

3. If yes, provide the South African registration number of the juristic body:

4. If not, in which country is the juristic body registered and provide the reference

number:

5. Provide the contact details of the juristic body (including postallphysical

address, phone, fax and e-mail address):

6. Name of contact person in juristic body (attach a certified copy of ID

document):

7. Capacity of contact person:

If applicant is a natural person complete clauses 8 - 72 below

8. Name of applicant:

9. Identity number of the applicant (also attach certified copy of the

STAATSKOERANT, 8 FEBRUARIE 2008 No. 30739 31

10.Contact details of applicant (including postallphysical address, phone, fax and

e-mail address):

11.Is the applicant affiliated to a juristic body? YIN

12. If yes, provide the name and contact details of the juristic body (include name

of contact person, postallphysical address, phone, fax and e-mail address):

The rest of this part to be completed by all applicants

13.Names and contact details (includes postallphysical address, phone, fax and

e-mail address) of all other collaborators:

- -- - - -

14. Identity number of all other collaborators (also attach certified copy of the ID):

15. Names and contact details (includes postallphysicaladdress, phone, fax and

e-mail address) of the individuals who will conduct bioprospecting project:

16. ldentity number of the individuals who will conduct bioprospecting project

(also attached certified copies of IDS):

17.Are there any international sponsors funding this project? YIN

18. If yes, provide their names and contact details (includes name of contact

person, postallphysical address, phone, fax and e-mail address):

--

19.Are there any South African sponsors funding this project? YIN

32 No. 30739 GOVERNMENT GAZE'TTE, 8 FEBRUARY 2008

20.If yes, provide their names and contact details (includes name of contact

person, postal/physical address, phone, fax and e-mail address):

INDIGENOUS BIOLOGICAL RESOURCES

21.Set out the type of indigenous biological resources for which a permit is

sought, the family, genus or species, the part of the organism to be collected,

the quantity of the resources to be collected or obtained and the specific area

or source from which each resource is to be collected or obtained.

Type of organism

Example:

I Plant

Family, genus or species (scientific and common names) (if possible)

Aloe ferox

Part of organism Quantity to be collected

Leaves 6 kg

Full locality 1 data (GIs readings if possible)

PREVIOUS RESEARCH AND APPLICATIONS FOR PERMITS

22. In respect of the indigenous biological resources set out above, has any other

application for a permit in terms of the Act or in terms of any other legislation

been submitted, either previously or simultaneously with this application? Y/N

23. If yes, was the application granted, refused or is it still pending?

STAATSKOERANT, 8 FEBRUARIE 2008 No. 30739 33

24. If the application was granted, provide the following detail and attach a copy of

the permit.

25.lf the application is still pending, provide the issuing authority's reference

number:

Permit number

DISCLOSURE OF INFORMATION

26.Has all material information been disclosed to any person, organ of state or

community providing or giving access to the indigenous biological resources

and to any identified indigenous communities with traditional knowledge or

use of the indigenous biological resources? YIN

Issuing authority

27. Substantiate your answer to the above paragraph by setting out all information

disclosed.

Date of issue

34 No. 30739 GOVERNMENTGAZElTE, 8 FEBRUARY 2008 - pp

STAKEHOLDERS

NOTE: If any person, organ of state or community is required to provide or

give access to the indigenous biological resources, their consent must

be obtained and a material transfer agreement (MTA) in the form of

Annexure 4 and a benefit-sharing agreement (BSA) in the form of

Annexure 5 must be attached to this application.

28. Identify the person, organ of state or community whose consent is required

and in each instance indicate if a MTA and a BSA have been concluded with

them. These agreements must be attached to this application.

/ Access provider MTA concluded and attached?

BSA concluded and I attached?

NOTE: If any indigenous community/ies have been identified, a benefit-

sharing agreement (BSA) in the form of Annexure 5 must be

concluded with that/ those communitylies and must be attached to this

application.

STAATSKOERANT,8 FEBRUARIE 2008 NO.30739 35

29.What steps have been taken to identify any indigenous communities whose

use or knowledge of the indigenous biological resources to which this

application relates, may have initiated or contributed to the proposed

bioprospecting?

30. Descriptionlnature of traditional knowledge or use

oralldocumented):

31. Describe any indigenous communities identified and in each instance indicate

if a BSA has been concluded with them and if that agreement is attached to

this application.

Indigenous community BSA concluded? BSA attached?

36 No. 30739 GOVERNMENT GAZElTE, 8 FEBRUARY 2008 ,

32. Have any agreements been concluded in relation to the indigenous biological

resources with collaborating parties that are not stakeholders in terms of the

Act? YIN

33. If yes, have those agreements been disclosed to -

33.1. any person,organ of state or communitylies who islare providing access to

the indigenous biological resources? Y/N

33.2. any indigenous community/ies with traditional knowledge or use of the

indigenous biological resources? YIN

34.1s any assistance required from the issuing authority to conclude the

necessary agreements? YIN

35. If yes, specify the nature of the assistance required and why this assistance is

required.

PROJECT PROPOSAL

36.A detailed project proposal must be attached to this application setting out the

following -

36.1. the objectives of the bioprospecting project;

36.2. the benefits that may result from the project;

36.3. the proposed methodology;

36.4. the proposed time-frames (i.e. required period of validity of permit);

36.5 any relevant environmental considerations including impacts of the

collection of the indigenous biological resources and proposed steps to

minimise or remedy those impacts;

~ STAATSKOERANT, 8 FEBRUARIE 2008 No. 30739 37

36.6, reporting processes;

36.7. desired outcomes of the project; and

36.8. what will happen to the discarded1 wasted specimens at the end of the

study.

FEES

37. Has the fee of R5 000 been paid? Please attach copy of invoice. YIN

Signature of applicant for bioprospecting permit:

ate:

Capacity of signatory:

Endorsement of juristic body, if applicable

Name of juristic body:

Signature of duly authorised officer from the juristic body:

Date:

38 No. 30739 GOVERNMENT GAZElTE, 8 FEBRUARY 2008

PART 2: APPLICATION FOR AN EXPORT PERMIT FOR BIOPROSPECTING

PURPOSES

1 An applicant completing this part must also complete and sign part 1 I I

RECIPIENT OF INDIGENOUS BIOLOGICAL RESOURCES BEING EXPORTED

(IMPORTER)

1. Name of recipientAmporter:

2. Contact details of recipient/importer (include postal/physical address, phone,

fax and e-mail address):

REQUIREMENTSOF OTHER LEGISLATION

3. Have you complied, or have you taken steps to comply, with other legislative

requirements for the collection and export of the indigenous biological

resources? Provide details, including reference numbers and waybill numbers

where appropriate:

PURPOSE OF EXPORT

4. State the purpose for which the indigenous biological resources are to be

exported:

5. Will the intended bioprospecting that is the subject of the permit application,

have some benefit for -

STAATSKOERANT, 8 FEBRUARIE 2008 No. 30739 39

5.1. the conservation of biodiversity in South Africa YIN

5.2. the economic development of South Africa YIN

5.3. any other matter that is in the public interest? YIN

6. If yes, provide details:

FEES

7. Has the fee of R5200 been paid? Please attach a copy of the invoice YIN

Signature of applicant for permit:

Date:

Capacity of signatory:

Endorsement of juristic body, if applicable

Name of juristic body:

Signature of duly authorised officer from juristic body:

Date:

40 No. 30739 GOVERNMENT GAZETTE, 8 FEBRUARY 2008

ANNEXURE 3

APPLICATION FOR AN EXPORT PERMIT FOR THE PURPOSES OF

CONDUCTING RESEARCH OTHER THAN BIOPROSPECTING

I

I Notes on completing form:I / If insufficient space is provided in this form, additional information may be 1 included by way of annexures. APPLICANT

If applicant is a juristic person complete clauses I - 7 below

I.Full name of institution or body:

2. Is the juristic body registered in South Africa? YIN

3. If yes, provide the South African registration number of the juristic body:

4. If not, which country is the juristic body registered in and provide the reference

number:

5. Provide the contact details of the juristic body (including postallphysical

address, phone, fax and e-mail address):

6. Name of contact person in juristic body (attach a certified copy of ID

document):

7. Capacity of contact person:

If applicant is a natural person complete clauses 8 - 12 below

STAATSKOERANT, 8 FEBRUARIE 2008 No. 30739 41

8. Name of applicant:

9. ldentity number of the applicant (also attach certified copy of the ID):

10.Contact details of applicant (including postallphysical address, phone, fax and

e-mail address):

II.Is the applicant affiliated to any juristic body? YIN

12. If yes, provide the name and contact details of the juristic body (include name

of contact person, postallphysical address, phone, fax and e-mail address):

The rest of this part to be completed by all applicants

13.Names and contact details (includes postallphysical address, phone, fax and

e-mail address) of all other collaborators:

14. ldentity number of all other collaborators (also attach certified copy of the ID):

15. Names and contact details (includes postal/physical address, phone, fax and

e-mail address) of the individuals who will conduct research:

16. ldentity number of the individuals who will conduct research (also attached

certified copies of IDS):

17.Are there any international sponsors funding this project? YIN

42 No. 30739 GOVERNMENT GAZETTE, 8 FEBRUARY 2008

18. If yes, provide their names of sponsors and contact details(includes name of

contact person, postallphysical address, phone, fax and e-mail address):

19.Are there any South African sponsors funding this project? YIN

20. If yes, provide their names of sponsors and contact details(includes name of

contact person, postallphysical address, phone, fax and e-mail address):

RECIPIENT OF INDIGENOUS BIOLOGICAL RESOURCES BEING EXPORTED

(IMPORTER)

21. Name of recipient/importer:

22. Contact details of recipient/importer (include postallphysical address, phone,

fax and e-mail address):

INDIGENOUS BIOLOGICAL RESOURCES

23.Set out the type of indigenous biological resources for which a permit is

sought, the family, genus and species, the part of the organism to be

collected, the quantity of the resources to be collected or obtained and the

specific area or source from which each resource is to be collected or

obtained.

Type of organism

Family, genus or species (scientific and common names) (if

Part of organism to be collected

Quantity Full locality data (GIs readings if possible)

STAATSKOERANT, 8 FEBRUARIE 2008 No. 30739 43

1 possible) 1 1 Example: 1 Aloe ferox 1 eaves 1 Plant I ~ I I I

PREVIOUS PERMITS

24. In respect of the indigenous biological resources set out above, has any other

application for a permit in terms of the Act or in terms of any other legislation

been submitted, either previously or simultaneouslywith this application? YIN

25.lf yes, was the application granted, refused or is it still pending?

26. If the application was granted, provide the following detail and attach a copy of

the permit.

If the application is still pending, provide the issuing authority's reference

number:

Permit number

REQUIREMENTSOF OTHER LEGISLATION

27. Have you complied, or have you taken steps to comply, with other legislative

requirements for the collection and export of the indigenous biological

Issuing authority Date of issue

44 No. 30739 GOVERNMENT GAZETTE, 8 FEBRUARY 2008

resources? Provide details, including reference numbers and waybill numbers

where appropriate.

PROJECT PROPOSAL

28.A detailed project proposal must be attached to this application setting out the

following -

the objectives of the research;

the benefits that may result from the project;

the proposed methodology;

the proposed time-frames(i.e. required period of validity of permit);

any relevant environmental considerations including impacts of the

collection of the resources and proposed steps to minimise or remedy

those impacts;

reporting processes;

desired outcomes of the project; and

what will happen to the discarded1 wasted specimens at the end of the

study.

PURPOSEOFEXPORT

29.State the purpose for which the indigenous biological resources are to be

exported:

STAATSKOERANT, 8 FEBRUARIE 2008 No.30739 45

30.Will the intended research that is the subject of the permit application, have

some benefit for-

30.1. the conservation of biodiversity in South Africa

30.2. the economic development of South Africa

30.3. any other matter that is in the public interest?

31. If yes, provide details:

FEES

32. Has the fee of R200 been paid? Please attach a copy of the invoice.

Signature of applicant for permit:

Date:

Capacity of signatory:

Endorsement of juristic body, if applicable:

Name of juristic body:

Signature of duly authorised officer from juristic body:

Date:

46 No. 30739 GOVERNMENT GAZETTE, 8 FEBRUARY 2008

ANNEXURE 4

BIOPROSPECTING PERMIT

This permit is issued in terms of Regulation IIof the Regulations on

Bioprospecting, Access and Benefit-Sharing

I.Permit-holder's name:

2. Permit-holder's physical/postal address, telephone, fax and e-mail

address:

3. Name of person in charge of bioprospecting (if different from permit-

holder):

4. Identify number of permit-holder or person in charge of bioprospecting:

5. If the application was a joint application, names of any other applicants:

6. Contact details of all other applicants:

7. Nature of permit: This permit authorises the permit holder to use the

following indigenous biological resources for the purposes of bioprospecting ,

In the quantities specified and to collect the indigenous biological resources in

the areas set out below:

I

Type of I Family, Part of 1 organism genus or organism to

species

Quantity (Indicate if there are

Full locality data (GIs readings if

STAATSKOERANT, 8 FEBRUARIE 2008 No. 30739 47

be collected and common I names) (if j possible) 1

8. Duration of permit: This permit is valid until

Example:

Plant

9. Benefit-sharing agreements and material transfer agreements: This

permit must be read with the following benefit-sharing agreements and

material transfer agreements entered into with stakeholders envisaged in

section 82(1) of the Biodiversity Act.

limitations on the quantity of samples)

10.Conditions: This permit is issued subject to the following conditions-

possible)

Aloe ferox Leaves

I I

I

-

i

the permit holder may not transfer the indigenous biological resources

to which this permit relates to any third party without the prior informed

consent in writing of the issuing authority and then only under a written

agreement containing terms no less restrictive than those which apply

to the permit holder in terms of this permit and any agreements referred

to in paragraph 9;

the permit holder must submit a progress report to the issuing authority

within one year of the date of this permit and annually thereafter.

6 kg ....

48 No. 30739 GOVERNMENT GAZElTE, 8 FEBRUARY 2008

10.3. if new collaborators join the bioprospecting project for which this permit

is being issued, the permit holder must notify the issuing authority in

writing.

10.4. all money due to stakeholders in terms of a benefit-sharing agreement

must be paid into the Bioprospecting Trust Fund, as required by section

85(1) of the Act; and

10.5. the permit-holder will be liable for the costs of mitigating or remedying

the impact of the bioprospecting on the environment, in accordance

with section 28 of the National Environmental Management Act, 107 of

1998; and

10.6. (additional conditions may be inserted here)

Signed by the Minister of EnvironmentalAffairs and Tourism

Signature

Date

STAATSKOERANT, 8 FEBRUARIE 2008 No. 30739 49

ANNEXURE 5

INTEGRATED EXPORT AND BIOPROSPECTING PERMIT

This permit is issued in terms of Regulation 12 of the Regulations on

Bioprospecting, Access and Benefit-Sharing

1. Permit-holder's name:

- --

2. Permit-holder's physicallpostal address, telephone, fax, and e-mail

address:

3. Name of person in charge of bioprospecting (if different from permit-

holder):

4. Identify number of permit-holder or person in charge of bioprospecting:

5. If the application was a joint application, names of any other applicants:

6. Contact details of all other applicants:

7. Name and contact details of importer:

8. Nature of permit: This permit authorises the permit holder to use and export

the following indigenous biological resources for the purposes of

bioprospecting , in the quantities specified and to collect the indigenous

biological resources in the areas set out below:

50 No. 30739 GOVERNMENTGAZETE, 8 FEBRUARY 2008

Type of organism

Family, Genus, or Species (Scientific and common name)

Form in which it will be exported

Quantity (Indicate if there are limitations on the quantity of samples)

Point of export

Point of import

Full [ocality data (GIs readings if possible)

9. Duration of permit: This permit is valid until

10. Benefit-sharing agreements and material transfer agreements: This

permit must be read with the following benefit-sharing agreements and

material transfer agreements entered into with stakeholders envisaged in

section 82(1) of the Biodiversity Act.

11. Conditions: This permit is issued subject to the following conditions -

11.I.the permit holder may use the indigenous biological resources for the

following purposes only:

11.2. the permit holder must comply with all other legislative requirements for

the valid export of the indigenous biological resources;

11.3. the permit holder may not transfer the indigenous biological resources

to any third party without the prior informed consent in writing of the

issuing authority in respect of this export permit and then only under a

written agreement containing terms no less restrictive than those which

STAATSKOERANT, 8 FEBRUARIE 2008 No. 30739 51

apply to the permit holder in terms of this permit and any agreements

referred to in paragraph 10;

11.4. the permit holder must submit a progress report to the issuing authority

within one year of date of issue of this permit and annually thereafter;

11.5. if new collaborators join the bioprospecting project for which this permit

is being issued, the permit holder must notify the issuing authority in

writing;

11.6. all money due to stakeholders in terms of a benefit-sharing agreement

must be paid into the Bioprospecting Trust Fund, as required by section

85(1) of the Act; and

11.7. the permit-holder will be liable for the costs of mitigating or remedying

the impact of the bioprospecting on the environment, in accordance

with section 28 of the National Environmental Management Act, 107 of

1998: and

11.8. additional conditions may be inserted here

Signed by the Minister of EnvironmentalAffairs and Tourism

Signature

Date

52 No. 30739 GOVERNMENT GAZElTE, 8 FEBRUARY 2008

ANNEXURE 6

EXPORT PERMIT FOR THE PURPOSE OF CONDUCTING RESEARCH

OTHER THAN BIOPROSPECTING

This permit is issued in terms of Regulation 13 of the Regulations on

Bioprospecting, Access and Benefit-Sharing

I.Permit holder's name:

2. Permit holder's physicall postal address, telephone, fax, and e-mail

address:

3. Name of person in charge of bioprospecting (if different from permit

holder):

4. Identify number of permit-holder or person in charge of bioprospecting:

5. If the application was a joint application, names of any other applicants:

6. Contact details of all other applicants:

7. Name and contact details of importer:

8. Nature of permit: This permit authorises the permit holder to export, in the

quantities specified, the following indigenous biological resources for the

purpose of conducting research other than bioprospecting.

/Typeof I organism 1 I

Family, Genus, or species

Form in which it will be exported

Quantity Point Point (Indicate if there are 1 expor import

Full locality data (GIs readings if

STAATSKOERANT, 8 FEBRUARIE 2008 NO.30739 53

9. Duration of permit: This permit is valid until

(Scientific and Common names)

10.Conditions: This permit is issued subject to the following conditions-

10.1. the indigenous biological resources to which the permit relates, may

only be used for the following non-commercial research purposes:

limitations on the quantity of samples)

10.2 the permit-holder must comply with all other legislative requirements for

the collection and export of the indigenous biological resources;

10.3 the indigenous biological resources to which the permit relates may not

be used for bioprospectingpurposes,

t

10.4 the permit-holder will be liable for the costs of mitigating or remedying

the impact of the bioprospecting on the environment, in accordance

with section 28 of the National Environmental Management Act, 107 of

1998;

possible) I

I

10.5 the permit-holder may not transfer the indigenous biological resources

to any third party without the prior informed consent in writinc of the

issuing authority in respect of this export permit and then only under a

written agreement containing terms no less restrictive than those which

apply to the permit holder in terms of this permit. The issuing authority

54 No. 30739 GOVERNMENT GAZETE, 8 FEBRUARY 2008

will not give this consent if the third party intends using the resources

for bioprospecting purposes;

10.6 the permit-holder must submit a progress report to the issuing authority

by or alternatively, within one year of the date of issue of

this permit (delete whichever is not applicable). Thereafter, the permit-

holder must submit progress reports annually, or alternatively by

(delete whichever is not applicable);

10.7 if new collaborators join the research project for which this permit has

been issued, the permit-holder must notify the issuing authority in

writing; and

10.8 additional conditions may be inserted here.

Signed by the Member of the Executive Council responsible for

Environmental Affairs

Signature

Date

~ STAATSKOERANT,8 FEBRUARIE 2008 No. 30739 55

ANNEXURE 7

MATERIALTRANSFER AGREEMENT

Notes:

This agreement must be entered into by an applicant for a permit and any

stakeholders identified in terms of the Regulations who provide or give

access to indigenous biological resources.

If there is more than one stakeholder a separate agreement must be

entered into with each stakeholder.

If insufficient space is provided in this form, additional information may be

included by way of annexures. Alternatively, parties can elect to use their

own forms with sufficient space provided for each Regulation, as long as

those forms follow the general format of this form.

The parties to this agreement must sign the agreement in the space

indicated and must initial every other page of the agreement, including any

annexures.

Parties to the agreement

1. Recipient of indigenous biological resources, if recipient is a juristic

person:

1.1. Name of institution or body:

1.2. Registration no. of institution or body:

1.3. Contact details of institution or body (including postal/physical address,

phone, fax and e-mail address):

1.4. Name of contact person in institution or body (attach a certified copy of ID

document):

56 No. 30739 GOVERNMENT GAZETE, 8 FEBRUARY 2008

1.5. Capacity of contact person:

2. Recipient of indigenous biological resources, if recipient is a natural

person

2.1. Name of recipient:

2.2. Identity number of recipient:

2.3. Contact details of recipient (including postaliphysical address, phone, fax

and e-mail address):

3. Provider of access to indigenous biological resources

3.1. Name:

3.2. Capacity:

3.3. If entering into agreement in a representative capacity, state name of

principal:

3.4. Contact details (includes physical/postal address, telephone, Fax and e-mail

address):

4. Indigenous biological resources

The type, quantity and source of indigenous biological resources to which this

agreement relates are - 11 Type of / Family, Part of Quantity

(LimitationI genus or Full locality 1 data (GIsorganism to

STAATSKOERANT, 8 FEBRUARIE 2008 No. 30739 57

/ organism species be collected scientific and common name) (if 1 possible) i

samples)

5. Current uses of the indigenous biological resources -

The present potential uses of the indigenous biological resources to be

collected are the following -

6. Purpose of export (if applicable)

The indigenous biological resources are to be exported for the following

purposes -

7. Third parties

The recipient may only provide any such indigenous biological resources or

their progeny to third parties in terms of the following conditions (fill in detail

below) -

The recipient agrees to take every reasonable precaution to prevent the

identified indigenous biological resources coming into the possession of any

unauthorised third party.

58 No. 30739 GOVERNMENT GAZETTE, 8 FEBRUARY 2008

8. Entire Agreement

This agreement constitutes the entire agreement between the parties in

regard to the subject matter of this agreement and no addition to, variation or

cancellation of this agreement or waiver of any rights under this agreement

will be of any force or effect unless reduced to writing and signed by the

parties to this agreement.

Signature of a applicant for permit: Date:

Capacity of signatory:

On behalf of:

Signature of access provider of resource: Date:

Capacity of signatory:

On behalf of:

Approved by the Minister of Environmental Affairs and Tourism

Signature

Date

1 STAATSKOERANT, 8 FEBRUARIE 2008 No. 30739 59 I

ANNEXURE 8 I

BENEFIT-SHARING AGREEMENT

Notes:

This agreement must be entered into by an applicant for a permit and any

stakeholders identified in terms of the Act and the Regulations.

If there is more than one stakeholder a separate agreement must be entered

into with each stakeholder.

If insufficient space is provided in this form, additional information may be

included by way of annexures. Alternatively, parties can elect to use their

own forms with sufficient space provided for each regulation, as long as those

forms follow the general format of this form.

The parties to this agreement must sign the agreement in the space indicated

and must initial every other page of the agreement, including any annexures.

I. Applicant for permit if applicant is a juristic body

1.I. Name of institution or body:

1.2.Registration number of institution or body:

1.3. Contact details of institution or body (including postal/physical address,

phone, fax and e-mail address):

--- -

1.4.Name of contact person in institution or body:

I.5. Capacity of contact person:

60 No. 30739 GOVERNMENT GAZElTE, 8 FEBRUARY 2008

2. Applicant for a permit if applicant is a natural person

2.1. Name of applicant:

2.2. Identity number of applicant:

2.3. Contact details of recipient (including postal/physical address, phone, fax

and e-mail address):

3. Provider of access to indigenous biological resources (if applicable)

3.1. Name:

3.2. Capacity:

3.3. If entering into agreement in a representative capacity, state name of

principal:

3.4. Contact details (includes physical/postal address, telephone, Fax and e-mail

address):

4. Indigenous community (if applicable)

4.1. Description of indigenous community:

4.2. Name of indigenous community representative who will sign this agreement

on behalf of the indigenous community:

4.3. Capacity.

4.4. Contact details (includes physical/postal address, telephone, fax and e-mail

address) of the indigenous community representative:

STAATSKOERANT,8 FEBRUARlE 2008 No. 30739 61

A resolution adopted by the indigenous community must be attached to this

form. The resolution must confirm that the indigenous community

representative indicated above has been authorised to enter into this

agreement on behalf of the indigenous community; that the indigenous

community has full knowledge of the bioprospecting project; and that it

consents to entering into this benefit-sharing agreement.

5. Type and quantity of indigenous biological resources

This agreement concerns the following indigenous biological resources -

(specify below type of resources, quantity of resources and area or source

from which the resources are to be collected or obtained)

Type of organism

Family, genus or species (if possible)

(scientific and

common

names)

Part of organism to be collected

Quantity (Limitation on the quantity of samples)

Full locality data (GIs readings if possible)

6. Current uses of indigenous biological resources

The present potential uses of the indigenous biological resources to be

collected are the following -

7. Intended use of indigenous biological resources

62 No. 30739 GOVERNMENT GAZETTE, 8 FEBRUARY 2008

The manner in which and the extent to which the indigenous biological

resources are to be used or exploited for purposes of the bioprospecting are

(set out details) -

8. Traditional use or knowledge (if applicable)

The indigenous community that is a party to this agreement has the following

traditional knowledge of the indigenous biological resources or has

traditionally used the indigenous biological resources in the following way -

9. Sharing in benefits

Benefits will vary considerably from case to case and in particular, benefits

will vary depending on whether the stakeholder is providing access to the

indigenous biological resources or is an indigenous community. The lists

below provide examples of monetary and non-monetary benefits that may

arise from bioprospecting projects. This first list is more relevant if the

stakeholder to this agreement is providing or giving access to the indigenous

biological resources while the second list is more relevant if the stakeholder

to this agreement is an indigenous community. Tick each block that applies to

this agreement and identify below who will be the beneficiary of each benefit

and the extent of the benefit (provide supporting documentation where

necessary).

To be completed if stakeholder is providing or giving access to the

indigenous biological resources

STAATSKOERANT, 8 FEBRUARIE 2008 No. 30739 63

Non-monetary, monetary and 'in kind' benefits

Acknowledgement of parties 1 giving access to resources I Research results and copies of

papers

Support for conservation

Species inventories

Student training and support---I- Scientific capacity development

Technology transfer

Joint Research

Information I Equipment and infrastructure I Other (specify)

Other (specify)

Voucher specimens with

national institutions

Participation of South Africans in

research

Access to international

collections by South Africans

Recognition and promotion of

traditional knowledge1use

Community development

projects

Environmental education

Fees

Royalties

Upfront payments

Milestone payments

Other financial benefits (specify)

Other (specify)

To be completed if stakeholder is an indigenous community

64 No. 30739 GOVERNMENT GAZETTE, 8 FEBRUARY 2008

Non-monetary, monetary and 'in kind' benefits

Ongoing communication of bio-

prospecting objectives, methods and

findings, translated into local

languages

Simplified and popularised posters,

manuals, pamphlets and other

documents translated into local

languages

Co-authorship of publications

Access to research data

Copies of photographs and slides

Inclusion in the research of local

collaborators, assistants, guides and

informants

Training of local people as

appropriate in relevant scientific,

legal and management issues

Equipment and infrastructure support

Co-ownership of any intellectual

property rights

Other (specify)

Copies of proposals, reports

and publications

Recognition and promotion of

traditional knowledgeluse

Lodging of specimens

Grants for development and

environmental education

projects

Fees (eg for consultation,

assistants, guides, use of

facilities and infrastructure)

Royalties

Upfront payments

Milestone payments

Other financial benefits

(specify)

Other (specify)

STAATSKOERANT,8 FEBRUARIE 2008 No. 30739 65

10. Payment of benefits

All money arising out of this agreement and due to any party to this

agreement must be paid into the Bioprospecting Trust Fund.

11. Review of agreement

This agreement will be reviewed every (fill in agreed

timeframe), with a view to amending the agreement if necessary. One

month prior to every review, the permit holder must disclose any new material

information with regard to the bioprospecting to all stakeholders to enable

stakeholders to participate in the review from an informed basis.

Any other matters or conditions which the parties to this agreement wish to

record may be attached to this agreement as an annexure.

A copy of this agreement must be lodged with the Director-General of the

Department of Environmental Affairs and Tourism within one month of the

agreement being concluded.

This agreement constitutes the entire agreement between the parties in

regard to the subject matter of this agreement and no addition to, variation or

cancellation of this agreement or waiver of any rights under this agreement

will be of any force or effect unless reduced to writing and signed by the

parties to this agreement.

Signature of applicant for permit: Date:

Capacity of signatory:

66 No. 30739 GOVERNMENT GAZETTE, 8 FEBRUARY 2008

On behalf of:

Endorsement of a juristic body, if applicable

Name of juristic body:

Signature of duly authorised officer from the juristic body:

Date:

Signature of access provider of indigenous biological resource:

Date:

Capacity of signatory:

On behalf of:

Signature of indigenous community representative:

Date:

Capacity of signatory:

On behalf of:

Approved by the Minister of Environmental Affairs and Tourism

Signature

Date


Legislation Implements (1 text(s)) Implements (1 text(s)) Is repealed by (1 text(s)) Is repealed by (1 text(s))
No data available.

WIPO Lex No. ZA032