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Will South Africans Soon Be Smoking Their New, PBR-Protected Cannabis Varieties?

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Cannabis (which has many names in South Africa, including “dagga”, “grass”, “boom”, “dope”, “skyf”, “weed” and “Durban poison”) is South Africa’s most  commonly used drug. It is cheap, and apparently freely available if you know where to look. In 2018, our Constitutional Court ruled that the use of cannabis was legal for personal and medical use. However, the buying and selling of cannabis, cannabis oil and cannabis seed remain illegal.

The Minister of Agriculture, Land Reform and Rural Development published amendments to the Regulations issued in terms of the Plant Improvement Act No 53 of 1976, in the Government Gazette No 45275 of 8 October 2021, declaring hemp an agricultural product subject to the provisions of the Plant Improvement Act. The amended Regulations allow the holder of a valid, untransferable Hemp Permit, issued by the Registrar of the Plant Improvement Act upon payment of an official fee and valid for two years, inter alia to import hemp plants or propagating material for breeding, research or cultivation,  to propagate plants for purposes of developing new hemp varieties, to sell hemp seed, seedlings, plants or cuttings, to cultivate hemp, and to export hemp plants and propagating material for cultivation purposes.

Does this mean that you will soon be able to smoke your new cannabis variety, protected by a South African plant breeders’ right (PBR)? The short answer is “unlikely, unless you are also smoking your socks”.

Hemp and marijuana are not distinct species but rather two of many different names for cannabis, a type of flowering plant in the Cannabaceae family. Legally, the difference is the concentration of (-)-transdelta-9-tetrahydrocannabinol (THC) in the leaves and flowering heads of Cannabis sativa L. Interestingly, in terms of the amended Regulations, “hemp” means low THC plants or parts of plants of Cannabis sativa L. cultivated for agricultural or industrial purposes, of which the leaves and flowering heads do not contain more than 0.2% THC (presumably this is percentage by weight), whereas in the Agricultural Improvement Act of 2018 and other laws in the USA,  a limit of 0.3% on a dry weight basis is used.

Currently, new Cannabis sativa L. varieties (whether of low THC content or high THC content) cannot be protected by means of plant breeders’ right in South Africa, as Cannabis sativa L. is not a kind of plant declared as a prescribed plant in terms of the Plant Breeders’ Rights Act No 15 of 1976. This will however soon change, as it is understood that Cannabis sativa L. will officially be declared, within a few weeks, as a prescribed kind of plant for which a breeder can obtain a plant breeders’ right in South Africa, provided that the variety complies with the usual requirements of novelty, distinctiveness, uniformity and stability. Such a plant breeders’ rights application will however have to be accompanied by a certificate stating that the THC content of the leaves and flowering heads does not exceed 0.2%. Publication of the amended PBR Regulations will have to be awaited to obtain more detail regarding, for example, who can issue such a certificate.

It thus appears that any cannabis variety protected by a South African plant breeders’ right would, for now, be unlikely to end up in a “zol”, “joint” or “slowboat” (i.e. hand-rolled cannabis cigarette), but rather would be a hemp variety of low THC content that can be used for industrial purposes, such as making textiles, paper, cosmetics, rope, printer’s ink, wood preservative, detergents, soaps, biodegradable plastics, paint, insulation, biofuel, food, animal feed and lighting oil.

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