BACKGROUND
The ACB has a long and consistent track record of engaging with and interrogating seed laws in Africa, including those of South Africa. We are on record for engaging with the draft Regulations to implement the PIA in 2022,2 where we found that the draft regulations did not criminalise farmers’ seed and their seed systems outright and, indeed, offered some degree of regulatory space for the continued existence of farmer seed systems, and the right to reuse, exchange and sell seed, as set out under Article 9(3) of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), and Article 19 (1)(d) of the United Nations Declaration on the Right of Peasants and People Living in Rural Areas (UNDROP).
Yet, we also found that there were many elements still missing for the full realisation of farmers’ rights and the right to seed, particularly since farmers’ rights and the role of FMSS are not addressed in any current agriculture and seed policies in South Africa. Such a scenario will require a distinct process to unfold, bringing together a diversity of stakeholders working across the agriculture, environment, and conservation sectors, to ensure farmers’ rights, farmers’ seed, and farmers’ seed systems are adequately recognised, strengthened, and supported.
The PIA and its Regulations promote and support industrial agriculture and large-scale commercial monocrop farming, favouring genetic uniformity over agricultural diversity, and private ownership and profit over public goods. These are not safe and appropriate legislative spaces for enabling the support and development of farmer seed systems and their integration within appropriate food and agriculture systems based on the principles of agroecology.
Nevertheless, since our consistent demands are that small-scale farmers and their seed systems must be able to function without any hindrance, a good starting point would be if the PIA and its Regulations provide adequate exemptions and thus openings for farmers’ seed systems to thrive, and to advance the realisation of farmers’ rights and the right to seed.
2 https://acbio.org.za/wp-content/uploads/2022/08/Submission_ACB_to-Dept-of-Agriculture_August2022.pdf
WHAT ARE FARMERS’ RIGHTS AND THE RIGHT TO SEED?
Farmers’ rights, as defined by the ITPGRFA under Article 9, go beyond the right to save, exchange, and sell seed, and include the:
• recognition of the enormous role played by local and indigenous communities and farmers in the conservation and development of plant genetic resources, which is the basis of food and agricultural production;
• protection of relevant traditional knowledge; the right to participate in the benefit sharing of PGRFA; and
• right to participate in decision-making related to the conservation and sustainable use of PGRFA.
The UNDROP, which South Africa is a major supporter of, refers to the Right to Seed, under Article 19, and includes the above, as well as:
• the right to maintain, control, protect, and develop their own seeds and traditional knowledge;
• for States to take measures to respect, protect, and fulfil the right to the seed of peasants and other people working in rural areas;
• to ensure sufficient quality and quantity of seeds are available at a suitable time and affordable price;
• for States to recognise the right of peasants to rely on their own seeds or locally available seed of choice and to decide on the crops and species they wish to grow;
• for States to take appropriate measures to support farmer seed systems and promote the use of farmer seed and agrobiodiversity;
• for States to take appropriate measures to ensure research and development integrates the needs of peasants and other people working in rural areas, to ensure their active participation in defining research priorities, and in the undertaking of research and development, taking into account their experience, and increase investment in research and development of orphan crops and seed that respond to smallholder farmers; and
• for States to ensure that seed policies, plant variety protection and other intellectual property laws, certification schemes and seed marketing laws respect and take into account the rights, needs and realities of smallholder farmers.
THE PIA AND REGULATIONS
At the outset, it is important to note that the PIA regulates the domestic marketing and cross-border trade of seed and, as such, is highly skewed in favour of the commercial seed system and does not treat all aspects of the seed sector in South Africa equally. It supports the development of so-called ‘improved’ seed that can meet certain ‘distinct, uniform and stable’ (DUS) requirements, which encourages genetic homogeneity.
The PIA essentially provides for the following, which is typical of a commercial seed law:
Variety release – a registration process for new plant varieties that regulates and controls which seeds can be marketed and traded;
Certification – a process for seed bulking, based on certification standards to monitor seed quality and varietal purity and to ensure that the seed produced is ‘true to type’; and
Phytosanitary measures – to control pests and diseases.
The PIA creates onerous and expensive conditions for the evaluation, sampling, and testing of seed, based on international standards, which farmers’ varieties can never meet. Small-scale farmers cannot participate in the commercial seed market, as this would entail going through the same testing and other onerous procedures, and paying the same fees, as multinational seed companies.
This scenario effectively locks small-scale farmers out of opportunities to participate in experimentation and innovation. The commercial seed system is far removed from the realities and needs of smallholder farmers vis-à-vis their own seed and systems. Public resources in the form of extension support, research and development, and institutional support are oriented principally towards the commercial and corporate seed sector. This system is mostly blind to the vast network of FMSS that do exist, the agricultural biodiversity they hold, and the role that small-scale farmers play in conserving biodiversity.
The PIA, in section 23, proposes that non-commercial varieties that meet the following requirements will be excluded from the ambit of the PIA:
• unprotected (meaning there are no intellectual property rights registered over them, such as a plant breeder’s right),³
• open-pollinated varieties (OPVs) , and4
• are cultivated and sold on a non-commercial scale.5
Does this mean that small-scale farmers can do what they like with all seeds falling within the ambit of this exclusion?
It is to be noted that no definition is provided for a non-commercial scale, in either the PIA or the Regulations. Section 5(1) of the Regulations provides as follows:
“For the purposes of section 23(2)(a), the non-commercial scale for cultivation or sale of an unprotected variety of any kind of plant regulated under the Act refers to cultivation and sale in limited quantities and mainly intended for use by
(a) Household/subsistence producers/farmers who produce primarily for household consumption and may have a limited surplus production for selling; and
(b) Smallholder producers/farmers who produce for household consumption and derive a source of income from agriculture activities.”
Thus, we can see that several layers of restrictions have been imposed on the exclusion to delineate “noncommercial scale”. The seed must be unprotected of any kind of plant regulated by the PIA, and can only be cultivated or sold in limited quantities, mainly used by certain categories of farmers. Section 5(2) of the Regulations introduces the concept of import and provides that the maximum amount of seed per variety imported or sold by a person on a non-commercial scale is specified in Table 3, reproduced in Annex 1.
Thus, the reference to “limited quantities” is found on Table 3 of the Regulations, which specifies the maximum amount of seed per variety that can be sold by a person on a non-commercial scale. Table 3 does this by providing the botanical and common name of the seed, and in column number 2, it sets out the maximum number of seeds per variety per year in kgs that are exempted from the Act, and that can be freely imported and sold.
3 In a previous briefing, which we encourage you to read, we dealt with protected varieties, and the impact of the Plant Breeders’ Rights legislation on farmers’ seed systems, discussing the triple restriction placed on small-scale farmers with respect to protected varieties – first on the farmer category, and then also on which crops the exception applies to, and then also on volumes produced. https://acbio.org.za/wp-content/uploads/2025/08/SA-PBR-laws-undermine-FR-to-seed-and-lockout-FMSS.pdf
4 An open pollinated variety refers to a plant that is pollinated naturally by wind, insects, or self-pollination, meaning the seeds produced will grow into plants with the same genetic traits as the parent plants. This allows for seed saving and replanting in subsequent seasons, which maintains genetic purity and reduces seed costs.
5 The definition of sell in the PIA (for which sold will have a corresponding meaning in the past tense) is as follows: it includes (a) agree to sell or to offer, keep, expose, send, convey, or deliver for sale; and (b) to exchange or to otherwise dispose of to any person in any manner.
The Regulations, especially Table 3, are primarily concerned with protecting the commercial interests of breeders and seed producers and are attempting to restrict the activities of small-scale farmers vis-àvis seed import and sale to an acceptable non-commercial scale that does not threaten the commercial interests of such breeders and producers.
Table 3 also provides for the maximum seed per packet in grams that may be freely imported and sold. For example, 2 kg of unprotected carrot seed per year are allowed to be imported and sold, and 20 packets per year; 1 kg of lettuce seed per year, and 20 seeds per packet; 50 kg of Pearl Millet per year, and 500 seeds per packet; 100 kg per year for yellow and white maize and 500 seeds; 25 kg of finger millet per year, and 200 seeds per packet; and so on. It is unknown how the state has calculated these volumes.
The exemptions do not apply to cannabis and hemp.
Anything above the amounts specified in columns 2 and 3 of Table 3 falls outside the exemptions and must be listed on the National Variety List, and therefore go through all the procedures of the PIA, before it can be imported or sold.
Table 3 does not seem to apply to seeds that may be cultivated.
What is the position on seed varieties that are not included in Table 3?
Table 3 has been created to limit quantities of seed that may be imported or sold on a non-commercial scale. For seed varieties not included in the Table, there is arguably no restriction as to quantities/volumes imposed on that seed for import and sale?
In principle, we strongly oppose any limitation on exemptions for farmers identified in the Regulations. We do not support Table 3, as we are of the view that all categories of plants should be exempted for all activities of small-scale farmers, with respect to all seed, without a limit on quantities. Already, the categorisation of farmers in section 5 of the Regulations constitutes a restriction on the exemption, and even if there are seed sales, they will not be at a large commercial level, by definition.
How will the state enforce these regulations? Will enforcement officers conduct some form of surveillance and monitor exactly how much seed farmers are selling, what the quantities are of each variety per year, etc? Will the state mobilise the criminal justice system to crack down on small-scale farmers who may produce non-commercial varieties (as defined) in quantities that exceed that which is stipulated in Table 3?
Our view is that small-scale farmers should continue to maintain and enhance the diversity of their seed and crops as part of broader, open-pollinated populations, and continue to maintain these through their use, knowledge, management, exchange, and local sale. This is indispensable towards sustaining agricultural biodiversity, adapted to local agroecological conditions, which ensures food availability and nutritional security and transitions towards agroecology.
Since small-scale farmers and their seed are only dealt with as exceptions, the fundamental need to support farmer seed systems, ensure that the rights and needs of farmers are adequately addressed, and safeguard genetic and agricultural diversity is an urgent task.
There is a need for specific policies and programmes, accompanied by funded mandates, that actively support smallholder farmers in multiplying diverse seed so that small-scale farmers have sufficient seed of the required quantity and type when required.
The Regulations in section 6 provide for exempted types of businesses. Small-scale farmers who may run businesses, involved in the selling of seed that are non-commercial varieties in accordance with the limitations specified in Table 3, are exempt from the registration and other requirements of the PIA.
CONCLUSION
The regulatory space provided by the PIA and the Regulations creates a limited basis for further work to be done. We will have to engage within the confines of the exemptions and exceptions for categories of farmers that have been provided, based on the quantity of seed produced and traded, to enable the continuation of the practices of the homestead and small-scale farmers operating at non-commercial scales, and for their FMSS to survive. At the same time, we are mindful that the exceptions do not constitute legal measures toward descaling industrial agriculture and upscaling biodiverse, agroecological, regenerative, and just agricultural and seed and food systems.
Ultimately, we are of the view that the Regulations do not advance farmers’ rights in South Africa. The diversity and dynamism of farmer seed systems must be addressed and accommodated in policy and legislation. Rather than simply providing for limited exceptions in commercial seed laws, operating within corporate industrial crop production systems, a specific, tailored regime to recognise the role of farmers as both stewards and developers of biodiversity is important to reflect the complex socio-economic values and diversity of farmer seed systems. This means going beyond a conservationist perspective of farmers’ seed to explicitly recognise their role in seed production, agrobiodiversity conservation, and in developing plant varieties adapted to local agroecological conditions.
New articulations are needed, as we look towards a future that urgently requires local solutions in the face of the myriad crises at our doorstep, aligned with international obligations of conservation and sustainable use of agrobiodiversity in terms of the Convention on Biological Diversity, and particularly the realisation of farmers’ rights enshrined in Article 9 of the ITPGRFA and the implementation of Article 19 of the UNDROP.
Table 3. Quantities for non-commercial seed (Reg 5)
Kind of plant
Digitara eriantha Steud. [syn. D. smutsii
Kind of plant
Lupinus albus L. (*3)
Lupinus angustifolius L. (*3)
Lupinus luteus L. (*3)
Medicago littoralis Rhode ex Loisel. (*2)
polymorpha L. (*2)
rugosa Desr. (*2)
sativa L.
scutellata (L.) Mill. (*2)
truncatula Gaertn. (*2)
Megathyrsus
Secale
Kind of plant
Setaria sphacelata (Schumach.) Stapf & C.E. Hubb.
Sinapis alba L.
bicolor (L.) Moench subsp. bicolor
Triticum turgidum L. subsp. durum (Desf.) van Slangeren
