SA Rooibos Council: Historic benefit-sharing agreement

History was made in July 2022, when the Rooibos industry disbursed the first round of benefit-sharing funds to the National Khoisan Council and the South African San Council as part of an Access and Benefit-sharing (ABS) agreement that was signed between the parties in 2019.

Spoor & Fisher partners and patent attorneys, Tyron Grant and Dina Biagio, assisted the SARC in the negotiations between the parties, with a specific focus on the BSA provisions pertaining to traditional knowledge and intellectual property rights.

As a signatory to the Nagoya Protocol, South Africa requires all who trade in indigenous biological resources to share benefits with traditional knowledge holders in a fair and equitable way.

Negotiations between the parties began as far back as 2014, when the Khoi and San were recognised by the South African government as the rightful traditional knowledge holders of Rooibos.

The Rooibos ABS agreement

The Rooibos ABS agreement is one of SA’s success stories with respect to the implementation of the National Environmental Management: Biodiversity Act (NEMBA), the Access and Benefit-Sharing Regulations (BABS Regulations), as well as the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of the Benefits arising from their utilisation.

The agreement is a first of its kind in the world. Other agreements involved specific companies and traditional knowledge holders, whereas this agreement encompasses the entire industry, ensuring all volumes of Rooibos sold are levied through one process.

Going forward, a benefit-sharing levy of 1.5% of the farm gate price will be paid into a trust annually.

Bioprospecting Trust Fund

The funds stemming from the benefit-sharing agreement were paid into the Bioprospecting Trust Fund, which is administered by the Department of Agriculture, Forestry and Fisheries (DAFF), before being transferred into the two Community Trust accounts established by the National Khoisan Council and the South African San Council.

The money received by DAFF has been shared equally between the two respective Councils. The Councils are finalising processes and procedures on how the money received will be distributed across the Khoi-Khoi and San Communities.

The funds will be used to protect the cultural heritage, to advance education and development and to improve the livelihoods of the respective Communities.

Martin Bergh, Chairperson of the SA Rooibos Council (SARC) says the industry is delighted that the first funds have now been paid to the representatives of the Khoisan and San people and he confirmed that the industry remains committed to the terms of the Access and Benefit-Sharing Agreement.

Spoor & Fisher is glad to have played a part in the realisation of the agreement.