Rooibos and justice

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05 Dec 2019

“Tea from South Africa’s rooibos bush will soon be infused with a measure of restorative justice.”

This neat quote comes from an article that appeared in Quartz Africa, South Africa’s Khoisan community will finally get a share of the commercialization of rooibos, Brian Browdie, 5 November 2019.

According to the article a scheme has been agreed in terms of which the Khoisan community will derive some financial benefit from the sale of rooibos tea. For the benefit of those who don’t know much about rooibos, the general belief is that rooibos, a plant that grows in the Cederberg area of South Africa, was discovered by the indigenous Khoisan people. Not only does rooibos make a nice cuppa, but it is also believed to have medicinal qualities.

A benefit-sharing agreement has now been signed to ensure that the Khoisan community will receive 1.5% of the value that the people who “grow, harvest, ferment or dry rooibos receive from processors annually”. It is believed that this could lead to more than USD 800 000 going to the Khoisan community every year, with some money also being made available to support small-scale rooibos farmers. Rooibos is a very big business – apparently some 16 000 tons of rooibos are harvested annually, and the product is exported to more than 30 countries.

The agreement that has been reached is underpinned by South Africa’s biodiversity legislation, the National Environmental Management: Biodiversity Act 2004, as well as two international instruments, the United Nations Convention on Biodiversity and the Nagoya Protocol on Access and Benefit-Sharing. At the official ceremony marking the agreement the South African environment minister, Barbara Creecy, said this: “Today’s celebration is also an observance of the correction of a past injustice – a wrong that is being righted.”

We have previously written about both traditional knowledge and the difficulties surrounding the name “rooibos” on numerous occasions, so it might be interesting to discuss a new development. As a result of recent legislation, there will now be a fit-for-purpose mechanism for protecting names like rooibos in South Africa. There has long been some scope for the protection of names that are geographical indicators under the Merchandise Marks Act, but this has been far from ideal.

Thanks to the recently-published Regulations Relating to the Protection of Geographical Indications (GIs) used on Agricultural Products intended for sale in the Republic of South Africa of 22 March 2019 (passed under the Agricultural Product Standards Act 1990), it will soon become possible properly to protect, as GIs, names used for agricultural products. Here are some of the most important features of the Regulations:

A GI is defined in the Regulations as “an indication (name) that identifies an agricultural product –

a) as originating in the territory of the Republic of South Africa or in another country, or in a region or locality in that territory, and

b) whose given quality, reputation or other characteristic is essentially attributable to its geographic origin (refer to TRIPS Agreement, Article 22(1))”.

The first thing worth noting therefore, is that the South African registration system will not be limited to South African names, it will be open to foreign names too.

An application process is set out in the Regulations. The applicant must identify the particular geographic area. The applicant will be required to show that it produces or processes at least 50% of the production volume of the product concerned, and that it is “organised based on democratic principles”.

An application for registration can be refused, inter alia, on the basis of similarity to an existing GI or trade mark (there is also provision for the cancellation of a registration). On registration the registrant is entitled to use certain designations such as Protected Geographical Indication or PGI.

The protection granted by the registration covers the unauthorised use of the name on similar agricultural products. But it will also extend to the unauthorised use of the name on dissimilar agricultural products, where that use exploits the reputation of the protected name. The protection will further extend to situations where the protected name is alluded to, translated, or used in conjunction with words such as “kind”, “type”, “style” or “imitation”. The protection does to some extent therefore mirror the protection granted by trade mark law.

It is worth noting that the Regulations are not yet in force, but hopefully, they soon will be.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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