Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill: public hearings day 3

Meeting report

Traditional and National Health Alliance (TNHA): Submission 1

Ms Nomzi Dlamini, Member: Traditional and National Health Alliance, said that the word “indigenous knowledge” should be used only by indigenes and not by foreign companies who would export the knowledge overseas, as the traditional healers would have no oversight or control over the knowledge once it was exported. There was no guarantee that the promised benefits of the Indigenous Knowledge Systems (IKS) Bill would materialise, as traditional healers had not been duly engaged, and traditional healers were neither scientists nor technologists, hence they should not be regulated by the IKS.

She said that the knowledge passed on by ancestors over thousands of years was aimed at healing affected persons and obtaining donations for basic needs, and not to be traded for profit. “To be a healer was an honour and not for profit, to sell our knowledge for profit would anger our ancestors,” she said. “What sort of law imprisons healers for three years for not registering?” she asked.

Ms Dlamini said that one would rather choose jail than anger the ancestors, as being a traditional healer was an honour. There were differences between a traditional healer, a witch, and a wizard, as the knowledge from traditional healers was trans-generational.

Traditional and National Health Alliance (TNHA): Submission 2

Mr Anthony Rees, National Chairman: Traditional and National Health Alliance, said that his concern about the rights of indigenous knowledge -- which was often questioned, being of European descent -- hailed from 25 years of herbal medicine practice. The organisation represented over 1 650 individual traditional health practitioners represented by various national and regional associations. There were an estimated 220 000 traditional health practitioners practising in South Africa.

The TNHA was of the informed understanding that the IKS Bill, if passed in its current form, would catalyse a second wave of exploitation, theft, and the expropriation of IK and traditional healing systems by the State and its research academia under the thinly veiled guise of promoting and protecting indigenous and cultural rights which had been practiced for decades by the traditional African healing systems. He claimed the “myopic Bill” was intentionally creating excessively onerous requirements that would alienate the real owners of the healing systems from any future participation in their own cultures and knowledge, while directly benefiting the transnational pharmaceutical drug companies who had the financial depth for meeting the requirements of this misguided and deceptive IKS Bill.

He said there were instances in the past where academics had been involved in wholesale plagiarising of traditional knowledge systems for profiteering, in collaboration with pharmaceutical and biotechnology companies, amongst others. The main custodians of traditional medicine were secondary to the profit agenda in the IKS Bill. Major tribal authorities had not been appropriately and objectively consulted on the impact of the IKS Bill and its critical and negative implications on their people.

There were firm beliefs that the Bill had taken a Eurocentric approach in regulating in a manner considered disrespectful to the culture. Registering an IKS claim would require by definition that the applicant would have to prove to be the originators, inventors and exclusive owners of the knowledge or system, which was an impossible and contradictory stipulation, and “the mischievous Bill” was clearly designed with this understanding of near impossibility in mind.

The main concerns about the Bill included:

• There was inadequate public comment period and inadequate time for communities to lodge claims;
• There was inadequate consultation between the Department and traditional health practitioners and indigenous communities;
• The Bill legalises state-sanctioned bio-piracy;
• The practice of traditional health practitioners would be curtailed;
• The promises of traditional medicine registration were misleading;
• The Bill had the potential to foster tribalism.

In his concluding remarks, he affirmed that the Bill could not be accepted in its current form, the entity would not register its members, and the entity would not obey or give cognisance to the Bill.

Mr Sandile Mtshiki: Submission

Mr Sandile Mtshiki, a resident of Kagiso, Mogale City, presented on indigenous games.

He said feasibility studies which had been conducted in 1993 regarding indigenous African games had resulted in the registration of traditional games in 1994, in a bid to protect and promote indigenous knowledge systems through the indigenous games and other sports. While informing the Committee about his several accolades, he proposed that virtual software should be developed for cell phones, and consoles for TV play, to allow citizens access to indigenous games and play them free of charge, and minimise data usage.

Mr Mtshiki suggested that public recreational centres, which were currently overpopulated with Eurocentric recreational structures, should be fitted with locally manufactured immovable structures as they were cost-effective as regards maintenance. Psychologists and physiotherapists had attested that fitting these structures in public hospitals would improve the rehabilitation and recovery process of patients. Other African nations should be actively engaged to write and publish books which would have volumes in progressive years on indigenous African games, as some African games had been illegally claimed as American games, which might cause an irreparable damage for future generations.

He proposed that two proposed indigenous games should be converted to casino and arcade game machines for the lucrative multi-billion rand industry, and publicly displayed in all national museums to encourage players. He also suggested that an African toys and games museum should be built, similar to the Tokyo toy museum. Collaborations should be made with “Lion King” or “Umoja” to create easy access for their commodities into local retail stores. Immovable games could also be promoted by installing them in primary and high schools, and marketed for installation and usage in malls, child-friendly restaurants, and other public areas. Another suggestion was that entrepreneurs should also be encouraged to start up businesses which rented out gaming equipment for youth, as well as for corporate and government functions.

The mass crafting of wooden, granite and glass games as artefacts should also be encouraged, and woodworking non-profit organisations (NPOs) such as “Epilepsy SA” and others should be utilised to create jobs for the local and disabled of South Africa. Corporate organisations should be lobbied to either sponsor or purchase games for early childhood development (ECD) centres or parks. Beautiful TV pubs should also be designed for indigenous interactive TV game shows.

Mr Mtshiki said the Department of Justice should be encouraged about the benefits of using interactive games like “Diketo” and “Morabaraba” to encourage children to be at ease during court cases that involved them. He urged that Parliament develop legislation that would ban or prohibit the purchase of indigenous games equipment by the Department of Basic Education, schools and the Department of Sports and Recreation from the their current supplier, which imported all the equipment from India and the country loses millions or billions of Rands.

Ms Nosipho: Submission

Ms Nosipho made inputs based on Setswana norms applicable to women who had just conceived.

A woman who had just conceived was kept alone in her room, and a stick or log was put across the door at the main entrance of the house to signify the presence of a woman who had just conceived. This prohibited persons from entering the room where both the mother and baby were kept, including persons arriving from a funeral, and women or ladies on their menstrual periods. The father of the baby was not allowed to meet with the mother for a period of three to four months, nor allowed to access the room where the mother and baby were kept. A common baby sickness known as “Kokwana” was often experienced and if it occurred, the baby was to be taken to a traditional healer for healing, as the sickness could be life-threatening.

Mr NtsieMalao: Submission

Mr Ntsie Malao, NPOs and cooperatives representative: North West Province, said Moretele Local Municipality in the province had a high rate of illiteracy due to the absence of further education and training (FET) centres. It was imperative that when Bills were passed, rural communities were duly notified and young persons in such communities were educated, as many traditional norms were yet to be transferred to the younger generation.

He told the Committee there had been a request from the NPOs and cooperatives that it should actively engage with them after the Bill was passed. He urged that the only library in the municipality should be furnished with the appropriate IKS documentation for easy referencing. Since there would be a lot of procurement opportunities after the Bill was passed, the cooperatives would like to be involved in the development and maintenance of the system for IKS.

In his concluding remarks, he added that young persons in the municipality should be encouraged to participate in compiling the IKS curriculum, as 60% of the livelihood of the municipality was dependent on IKS.

Ms Dikeledi Mosipha Submission

Ms Dikeledi Mosipha presented on the IKS Batswana norms on behalf of Setshaba sa Bakgatlhaba Mosetlha in Makapanstad village, within Moretele local municipality in North West province.

She said that the Batswana people healed tonsils using clay pots and used Lengana medication for medical healing, adding that the culture offered substantial protection of children from birth to three months.

Key concerns about the Bill were that the Bill should cover documentation of the IKS, libraries in rural areas should be adapted for the collection and preservation of IKS, skills development should be a priority for the complete value chain of the project, the involvement of NPOs and co-operatives in the project should be encouraged, and there should be development and maintenance of the systems for IKS.

Western Cape Legislative KhoiSan Council (WCLKSC): Submission

Mr Vincent van Breda, leader responsible for administration: Western Cape Legislative KhoiSan Council, briefed the Committee on behalf of Chief Autshumoa.

He said that the Council’s attempts to engage in new constitutional arrangements in the country post-apartheid had been hampered by “constitutional connivance and democratic deceit”. The legitimate voice of the KhoiSan had been systematically and consciously excluded and expunged from the national discourse by the architects of the post-1994 democratic regime. The rejection of the Traditional and Khoisan Leadership Bill (TKLB) in its current form by the WCLKSC was based on the following:

• That the KhoiSan had been excluded from the arrangements of Act 108 of 1996 – also known as the Constitution of the Republic of South Africa;

• There was an attempt to include the KhoiSan into the constitutional arrangements of the country in an improper manner;

• The silence of the TKLB on the issues of aboriginality and first nation status of the KhoiSan people implied that it had been adjudged to be of no consequence by a competent court of law;

• The title of the TKLB suggests only an inclusion of KhoiSan leadership without the acknowledgement of the KhoiSan people, of which the leadership forms a part;

• The Bill talks about the arrangements around the leadership of the KhoiSan, but does not respectfully express any word on the acceptance of the existence of the KhoiSan people as a fundamental source, thus the starting-point of its leaders;

• The Bill furthermore confines the role of this invented – and cut off from their people -- KhoiSan leadership to an advisory role and not a legislative role, which was reminiscent of the advisory Councils of the colonial or apartheid era;

• The title suggests that legal arrangements around traditional and aboriginal communities were to be conflated under one Bill;

• The definition of Cape Khoi had no basis in history, but it was a product of colonial and apartheid legislation which depicted that the aboriginal communities grouped under this notion -- the Cochoqua, Goranaiqua, Goran Haikona, the Hessequa, Ghainoqua and the Choragoqwe -- be acknowledged as entities in their own right as with the others -- Griqua, Koranna, Nama and the San.

Recommendations by the Khoisans included:

• That the KhoiSan be included in Act 108 of 1996 in a proper manner;

• That the Khoi San be afforded their rights as an aboriginal First Nation under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and Convention 169;

• That a mechanism similar to the traditional communities under the interim constitution of 1993, which led to chapter 3 and chapter 12 of Act 108 of 1996, be enacted for the aboriginal communities in order to build the institutional coherence of the KhoiSan;

• That all legislation, including any future replacement of the TKLB related to the aboriginal communities, be made distinct from the legislation covering the traditional communities;

• That all future legislation concerning the KhoiSan was promulgated in alignment with Khoisan concerns.

Professor Nomalungelo Goduka: Submission

Professor Nomalungelo Goduka, former IKS Research Chair: Walter Sisulu University, reported that it had been over a decade since the adoption of the IKS policy by the South African Cabinet, and little uptake by universities had been done on a voluntary basis.

She said IK was significant in knowledge that was rooted in African world views, ancestral wisdoms and teachings, culture and languages, sacredness of place and space, and fluidity of knowledge exchange between past, present and future, amongst others. The inclusion of IK in educational curricula in the classroom served to assist in integrating indigenous perspectives of teaching and learning which could be immensely valuable in creating a more responsive educational system for all students at all levels.

The interest in IK was kindled by a perception that IK was a critical building block in fostering positive attitudes about human rights, equitable resource management and development, and the preservation of the earth's diversity. In the past and currently, western-based education had been criticized for dismissing and attempting to supplant IK, and those involved in western science and technology were beginning to recognise the value of IK in terms of gaining an insight into managing ecological sustainability and resource biodiversity. Implications for the classroom and schools included the willingness of educators to see themselves as learners, and seek to develop their own understandings first -- the understanding that education systems were not value neutral, but rather that what was taught and how it was taught reflected cultural values, ensuring meaningful inclusion of indigenous content in all curricular areas without appropriation.

IK had emerged as a powerful concept that was linked to sustainable development, particularly within rural contexts. It was knowledge which rural farmers knew best and could access with ease. The World Conservation Union (IUCN), Unesco and the World Bank were increasingly linking global sustainability to a greater awareness of IK, even though there was still little consensus about whether, and if so how, IK should be introduced into western-based education systems.

Cape Bush Doctors: Submission

Mr Brian Damonse, Chairperson: Cape Bush Doctors, presented the inputs from the organization to the committee. The inputs were as follows:

• There was a concern regarding the definition proposed by the Bill for “indigenous community”. The definition could easily exclude especially small and currently still unrecognised groups, organisations and especially individuals. It was very unclear what was meant in the definition by “recognised by other groups as a distinct collective”. Members often stood alone within their so called “coloured” or “black” communities, and they more than often stood alone in a large area of people as lone custodians of their indigenous Khoi and Bushman heritage, alone amidst a majority of what had become normalised as westernised communities.

• The Bill proposed to facilitate, record and help market via product development schemes, but it failed to even mention the fact that all Khoi members in the Western and the Northern Cape Provinces were still currently forced by law to practice their own traditions and medicinal practices illegally, as no medicinal plant harvesting permits had been issued so far, and no certification had been granted to any of its members, despite the on-going participation in all the programmes provided by the government to facilitate these processes.

• Traditions and beliefs had not been recognised by the Department of Health or the Department of Environmental Affairs.

• The Bill proposed that one department should record and commercialise Khoi IK, while the indigenous practices were not even legalised yet for the members to practice freely in their own communities without fear of prosecution and imprisonment by other departments of the same government.

• Healer members had participated in and been instrumental in the formulation and development of Act 22 of 2007, but there was no assurance that the proposed Bill would recognise the historical efforts and on-going participation of members over the last ten years.

• The Khoi did not believe that the DST was the correct platform to record, protect and manage its indigenous knowledge, as from all their previous engagements with scientific researchers, there had been endless struggles in terms of inequality, intellectual abuse and always certain levels of misinformation, resulting in the gross neglect of the knowledge providers.

• The Khoi were currently very suspicious of entrusting any governmental department with their IK. The proposal was that government rather fund and support Khoi organisational infrastructures which they had painstakingly set up over the past five years to record, safeguard and manage its members’ indigenous knowledge and benefit sharing.

• The way that the Bill was set out now raised the concern that it would divide and create conflict amongst the different groups representing IKS holders.

Kei Korana Nation: Submission

Mr Denver Arendse, Headman: Kei Korana, made a submission on behalf of the community.

He said that the position of the Kei Korana community was that South Africa and its people would benefit greatly from investment allowing research into its indigenous medicines, as the country contained within its borders the most diverse of all the plant kingdoms on the planet, so the scope and potential for the development, manufacture and export of invaluable plant-based medicines was vast. South Africa only needed to provide suitable monographs, backed by reputable on-going research with the support of relevant government agencies, to realise a comparable indigenous medicine industry of its own within its borders. Should the government have the foresight to support small scale farmers in a cooperative agricultural model, the home grown herbal medicine industry could provide hundreds of thousands of South Africans with a healthy income and lifestyle, thereby providing the promised services to the rural population and effectively eradicating a portion of the issues South Africa currently faced.

The Kei Korana rejected the Bill as presented in its entirety, due to the following issues:

• The definition of “indigenous community” by the Bill would exclude several groups, as to date indigenous communities of people such as Kei Korana were still fighting for constitutional recognition, despite its rich cultural heritage and knowledge.

• The Bill intended to sell off the community’s heritage of natural resources contained within its land to multinational corporations before the land issue had been fully addressed. If the Bill was enacted, by the time the land was returned to Kei Korana, members would be forced to pay “licence fees” to the multinationals in order to utilise their own resources, which defined their way of life.

• The Bill, as it stands, was an insult to the people and ancestors of Kei Korana from whom knowledge was drawn. The Bill intended to commercialise and place financial value on the ancient wisdom that the ancestors freely dispensed to their people.

• Although the Bill was to sell the community’s ancestral wisdom to the highest bidder and in turn impact on the peoples’ way of life, there had to date been no consultation with the leadership of the community.

• Since before 2004, indigenous healers had been integral in ensuring that the Traditional Health Practitioners Act (Act 22 of 2007) had come into being. Subsequent to its enactment, the indigenous healers had worked tirelessly to ensure its success, and the IKS Bill as proposed would erase everything that had been achieved so far.

• Science and technology was the antithesis of the understanding that underpins the indigenous culture and healing arts, and for the Department of Science and Technology (DST) to have been chosen to govern the intellectual property that was the community’s indigenous culture and all its nuances, raised suspicion as to its true intent.

• The IKS Bill as drafted, if enacted, would empower the DST to sell indigenous rights of Kei Korana to the highest bidder and once sold, the ancestral wisdom of the community would no longer be theirs to use. The knowledge would be withdrawn, and the people would face a jail sentence for utilising their own priceless heritage handed down to them from generation to generation.

 

• The commercialisation of the indigenous knowledge would incite a breakdown in social cohesion and tribal conflicts.

Discussion

Mr N Paulsen (EFF) inquired from Mr Rees if the concerns raised were related to the IKS Bill or the Intellectual Property Act. Was it envisaged that the IKS Bill would endanger the ownership of indigenous knowledge?

Ms C King (DA) commended presentations and inputs from the entities and affirmed that the committee would make recommendations accordingly.

Ms L Maseko (ANC) commended presentations and inquired about updates on the TKLB Bill and its current status.

Mr VanBreda replied that the Bill was currently with the Department of  Cooperative Governance and Traditional Affairs (COGTA)

The Chairperson asked Mr Rees how traditional healers survived without charging clients for services. He also asked if Mr Mtshiki fully supported the IKS Bill.

Mr Rees replied that considering how bio-prospecting had occurred in South Africa within the last three to four decades, academia had been jealously guarding traditional medicine research that was harvested in rural communities. For a greater proportion of those decades, the act was conducted in an unethical manner, quite similar to the grabbing of land and cattle by colonists in exchange for cheap beads or broken mirrors. The vast databases that were held by institutions had been jealously guarded up until recently, and those databases had been used to look for molecules for bio-prospecting. He affirmed that bio-prospecting was high on the agenda in the country and was being principally driven by academia (for the purpose of research and development) and foreign interest groups.

After the promulgation of the Bill, there had been concerns as to how the knowledge in the databases would be protected if the 12 months’ registration period lapsed without any claims. It would open a gap for the State and academia to sell information to the highest bidders. In many instances, the databases had many significant contributions from unknown sources, as lots of healers had either passed on or there were wrong entries in the databases, as during apartheid, researchers had cared less about giving acknowledgements to African communities. Once the knowledge was embedded into the IKS, it would be almost impossible to trace the communities and there was no guarantee that the benefits of the knowledge would be shared. It was envisaged that the benefits would be shared between the National Indigenous Knowledge Systems Office (NIKSO) and companies which would take the lion’s share.

He clarified that traditional healers did not charge prescribed fees and depended solely on donations. Some traditional healers accepted donations from communities, and members of the relevant communities were not liable to pay for services as a result of previous donations made. Other healers commercialised traditional medicine in a manner which raised concerns about the culture of traditional medicine.

Mr Mtsiki said that the Bill was unclear insofar as it pertained to the intellectual properties of indigenous games. He said that officials at local, provincial and national bodies that dealt with indigenous games had no clear idea on the rights and ownership of games, and amendments were needed in the IKS Bill.

The Chairperson urged Mr Mtsiki to forward proposed amendments to the Committee for deliberation.

Mr Paulsen inquired from Mr Van Breda if the Western Cape KhoiSan Council was a statutory body, how it was constituted, who the Council represented, the size of the KhoiSan community, and the percentage of the KhoiSan community which was represented by the Western Cape KhoiSan Council.

Mr Van Breda replied that the perception that “there were various voices and not necessarily agreements,” was true. The level of coherence between the leadership and the KhoiSan organisation was indeed not as high as expected. He confirmed that the National KhoiSan Council had been shut down and the WCLKSC, which had come into being in May 2015, had the human resources of the National KhoiSan Council. The level of coherence kept improving, and from 30 November 2016 till now there had been a range of confluence, and there was a currently a call for a national consultative conference and a high level of engagements. 

Mr Paulsen commended Mr Van Breda’s response, and suggested that a comprehensive response be provided in writing.

Mr Koornhof inquired if the represented entities supported the IKS Bill in any form, following their concerns and recommendations about the Bill. He asked if the Committee was on the right track with the Bill.

Ms L Maseko (ANC) commented that Professor Goduka’s recommendation to include IK into curriculums would form part of some form of qualification. She asked Mr Damonse if there was coordination between Cape Bush Doctors and other organisations in the Western Cape. Why had Cape Bush Doctors attended the engagement and required funding from the government, despite its lack of trust in the government? Regarding commercialising IK by the DST, she inquired about recommendations that could be made. She asked if certifications had been applied for. She disputed the allegation that the KhoiSan were not recognised by quoting from an email which she had received on 9 December 2016, which stated that “the KhoiSan nation self-defence unit just wants to say to the Minister of Defence bravo for recognising the heroes and heroines in the colonial war and resistance”.

She urged that detailed submissions and proposals on the manner in which new legislations were conducted should be forwarded within a week to allow the Committee act accordingly before the end of the public hearings.

Mr Arendse said a written submission had been made as regards some concerns, and there was currently a coalition with Nguni groupings and Bushmen. Resolutions and detailed clause for clause proposals would be submitted on behalf of the Nguni grouping, Kei Korana and Bushmans in the Western Cape. He added that the Ngunis, Ibiquas and Bushmans were co-owners of IK, together with the Kei Koranas.

Mr Damonse replied that consultation had been conducted on IKS by the DST, but had lasted only 10 minutes. After 10 minutes, all groups represented had been disappointed with the definition of “indigenous community” in the Bill. He affirmed that since then, and even at the meeting, the officials of DST had undertaken to report to their superiors and notify to them the highlighted concerns, and no response had been received since then. As regards coordination, he said the Cape Bush Doctors (CBD) was an organisation representing indigenous healers from the Cape to the Kalahari, and was consolidated in all levels of governance and chieftaincies with traditional houses and indigenous houses, as well as groups representing all indigenous healers in South Africa. He added that there were members from the Bushmen, Nguni and Colonials.

Mr Damonse affirmed that there were strong partnerships, and with regard to the role of the government, he echoed that he did not trust any government department with his IK because from his engagements with the government in the last 15 years, the CBD had been helpful to the government, but kept getting a response in a manner that the consultations and words of the CBD did not count, as the bureaucratic approach of the government was directly in conflict with the beliefs and traditions of the CBD.  

Ms Maseko inquired about the date of the engagement with the DST, and if the public hearings had proved effective in any manner to the CBD.

Mr Damonse replied that he did not remember the date the engagement occurred. There had been uncertainty about the outcome of the public hearing, as it had started without proper consultation and no economic impact study had been conducted. He said it complicated to work with departments in the government, citing an example where a bush doctor risked imprisonment if found with medicine by the police while at the same time, there was an active public hearing to share IK. He said the government should rather “clean up its own house” before engaging in any form of consultation. As regards the KhoiSan defence unit, he explained that he was a healer and not a soldier.

The Chairperson inquired how the submission of the CBD should be treated, since the entity had presented without trust in the government.

Mr Damonse responded that the submission and presentation was done only because it formed part of the bureaucratic approach of the government, and had been conducted while there was still hope that it would make a difference in the manner in which the government approached issues.

Mr Van Breda said that the WCKLC was committed to legislative processes, hence its participation in the public hearing. As for who the WCKLC represented, he explained that the Council was concerned about a possible division, genocide and tribal breakdowns which might occur once the bill was passed, and entities had gathered with a common voice for the public hearing. WCKLC was keen to participate in the legislative processes, but there were on-going challenges in uniting in a coherent manner. WCKLC aimed to bring together interest groups within the meaningful institutional framework and currently supported some of the concerns of other entities. It would provide further submissions if deemed fit.

Professor Goduka replied that the Bill was supported, and the presentation was to make a case for the support. She added that was difficult to say who was represented, bearing in mind the broad spectrum of education. What was lacking was the support for IKS in higher education. She mentioned that she had not perused the draft of the IKS Bill.

The Chairperson said that issues raised about education should be further discussed with the Portfolio Committee on Education to ensure the concerns were adequately addressed. She added that once the process was completed at the National Assembly, the Bill would be forwarded to the National Council of Provinces, and public hearings would be conducted in all concerned provinces.

Mr Rees claimed he had been ignored from answering questions asked by Members.

Mr Koornhof responded that the questions were not directed to all presenters, but rather to the last presenter.

Mr Paulsen inquired about the size of the community being represented by Mr Damonse and Mr Arendse. He also asked how the Cape Bush Doctors fitted into the KhoiSan organisation.

Mr Damonse replied that there was an average of 25 healers in each city of the country, and the size of the organisation was from tens, to hundreds of thousands.

Mr Arendse responded that there were currently 9 000 members in the Western Cape, while other provinces could not be accounted for.

Professor Owen Dean: Submission

Professor Owen Dean, Professor of Law: Stellenbosch University, said he approved the basic principles and the fundamental approach of the Bill.  It was a sound approach which was custom made to suit its particular subject, unlike the Department of Trade and Industry’s intellectual properties law amendment Act, which had a different, and probably a wrong, approach as there appeared to be no means as to how the Bill could coexist with the DTI legislation, as “it was like trying to mix oil and water”. 

There were some fundamental misconceptions about the proposed Bill. The only inherent means of protecting information or knowledge was to keep it secret or confidential, but once it was in the public domain, it became free for use by all and there was an inherent right to copy. The only means of protecting information or knowledge was by legal measures, as the law created mechanisms by which information could be protected. This had been achieved in the case of intellectual properties by various statutes, such as the Copyright Act and Designs Act, among others. The statutes created private ownership of items of intellectual property and by creating private ownership, a facility was created for the property to be used in commerce for the purpose of revenue generation.

Professor Dean said that traditional information and IK was currently unprotected. The Bill was to create a mechanism for protection and was a voluntary system, as no one was forced to register their property or what was claimed to be their property. Owners of IK were expected to register their knowledge only if they intended to benefit from the dividends of the Bill, and NIKSO was only a facilitator of the registration process and not a beneficiary of the commercial use of the material. He added that before any of the knowledge or information registered could be used by a third party, a licence must be obtained from the community, and a benefit sharing agreement must be entered into with the community.

He disputed allegations that the legislation currently encouraged bio-piracy. He said that although he had played a role in drafting the Bill, certain inconsistencies had crept in, hence his submission. He addressed the definition of indigenous knowledge, and said from paragraphs (a), (b), and (c), three categories of indigenous knowledge were identified and later on in the Bill, a distinction was drawn between functional and cultural indigenous knowledge. He explained that paragraphs (a) and (b) related to functional knowledge, whilst paragraph c related to cultural knowledge. Regarding the ownership of indigenous knowledge, he said the Bill as it reads vested the ownership of indigenous knowledge in the community from which it originated, and the community then appoints a trustee who administers the indigenous knowledge on their behalf.

He had spotted a legal issue which was the fact that in law, a community was not a legal person and did not have a contractual capacity. He proposed that the Bill be amended in a manner that the property was vested in the trustee, whose role was to administer the IK on behalf of the beneficiaries of the trust, which was the community. He added that the community should be regarded as the beneficial holder of the knowledge, whilst the trustee was the owner of the knowledge. In accordance with chapter 5, which deals with accreditation and certification of IK practitioners, he proposed a rearrangement of sections and also proposed that the general provisions which applied to the register of indigenous properties should also apply to the register of designations.

He also identified a shortcoming in section 5 of the Bill, which identified the functions and powers of NIKSO, in which it was not stated that NIKSO neither had the power to grant licences nor the power to facilitate the licensing system.

He also pointed inconsistencies in the manner in which profit-sharing agreements were entered into, as there were contradictions between section 13 (3)(c) and section 26 (1)(b). He suggested that section 26 (1) (b) should be opted for, as it clearly protected the rights of communities who might be “unsophisticated people” and create an even playing field during negotiations. With reference to implications in the Bill that prior consent of a community must be obtained before a licence could be granted, he said it was nowhere specified in the Bill how and when the prior consent could be obtained.

Regarding the enforcement of rights, he said there was duplication when comparing sections 13 (5) and 28 (1). He said that no provisions were made for civil law enforcement in the Bill, as provisions were made only for criminal law. He emphasised that the provisions of section 33 of the Bill were not useful, as it required registration of indigenous knowledge within 12 months from the date of commencement of the Act. He also proposed that the Patents Act should be included in the list of Acts in section 32 (3), and suggested that since the Bill was a legislative process, at least one lawyer should be included in the Ministerial advisory panel, as set out in section 7(2). He said section 7(6) must be properly addressed as it was unnecessary to reappoint the entire committee, and the reappointment of at least five members might not the feasible, as the entire advisory panel might be fewer than five persons.

Discussion

Mr Paulsen said Professor Dean had failed to address section 12 of chapter 4, which afforded NIKSO the right to act as a custodian of unclaimed indigenous knowledge. He asked if NIKSO was allowed to sell unclaimed IK to pharmaceutical companies and other interested parties, and how the funds from IK sales would be utilised. He said NIKSO appeared to have more power as regards the sale of IK and bullied communities by taking ownership of IK without acknowledging the rightful owners. 

Mr Koornhof asked if there was a possibility of embarking on civil enforcement, even though it was not included in the Bill.

Professor Dean explained that section 12(4) of chapter 4 implied that if there was IK claimed by no community or person, NIKSO could grant licences and generate revenue, but once the ownership was known at a later stage, the owner could state its claims. He added that there was a similar provision in copyright law.

The role of NIKSO was as a facilitator which could not grant licences without authorisation by the community, and NIKSO could not override the wishes of the community. Regarding civil enforcement inquiries, he said all intellectual property statutes had extensive provisions for courts to grant interdicts, damages and all sorts of remedies, and if the Act was silent on civil claims and enforcement, courts could not act accordingly. In what he termed a “back door approach”, he said the court had recognised that if a trader traded in contravention of a statute, any party that suffered damage as a result of the contravention of the statute could sue for damages.

Dr A Lotriet (DA) asked Professor Dean if section 12 (4) of chapter 4 implied that all unclaimed IK was automatically owned by NIKSO, or if the section rather implied that whenever a person applied to use the knowledge and the rightful owner could not be traced, NIKSO took over the ownership.

Professor Dean replied that NIKSO must register any IK in its own name before it could be used. He said registration was the condition preceding any action in the Act. The process would be both expensive and futile, as a rightful owner could claim the IK at any time. Registration only concretised the rights of owners and made it enforceable.

Mr Paulsen inquired why owners had only 12 months to register their IK from the date of commencement of the Act.

Professor Dean replied that he had already proposed that the section be deleted from the Bill, as it contradicted the policy of the Act. The policy of the Act was that all IK, regardless of when it came into existence, was protected and the only formal step that could be taken was registration, which could be done at any time before the owner wished to exercise their rights.

Mr Paulsen inquired if it was illegal to use IK without registration

Professor Dean answered that the Act basically makes nothing illegal and does not in any manner restrict the access of owners to their IK. He said the Act only gives owners access to exercise their rights.

Ibiqua Kingdom: Submission

Mr Abre Hector, Principal Leader: Ibiqua Kingdom, presented the submission of the community.

He said it was time for the Bushman to speak for himself. It was unacceptable that law advisers and constitutional experts constituted a Bill which was not in line with international legislation pertaining to indigenous people and their knowledge systems. It was also unacceptable that a Bill which could not stand constitutional muster had been drafted in the country. The Ibiqua Kingdom claimed the rightful custodianship of its community’s IKS in its territory.

When the king of the Ibiqua Kingdom had tasked the royal council to pursue all ministries in terms of ratification, policy formulation and assisting government with all their endeavours, the kingdom had discovered that everything that was mentioned in the United Nations declaration 265 of 2007 with its 46 articles had been set apart by the South African government, so the Department of Science and Technology was but a brick in the wall, taking away indigenous knowledge from the people while land reforms were taking away land from indigenous people.

Itsd proposals were that since chapter 12 of the South African constitution recognized traditional authorities, the Bushmans people could not be excluded. The right granted to traditional leaders was uniformly and equally projected to the Bushmans people of South Africa.

The kingdom also had an understanding that according to the IKS, the definition of “indigenous” as it stood excluded the Bushmans people. No Bill could substitute the rightful custodianship of the IKS of the Bushmans.

The Chairperson commented that while points raised by Mr Hector were perhaps debatable, the legislative process was not the right platform to debate such issues. He then urged that a written submission be provided.

 Dr M P Masipa: Submission

Dr M P Masipa, IKS specialist and author of the book, “Indigenous African Food Cookery”, said that the constitution of the Republic of South Africa enshrined the founding values of human dignity, education, culture, research, and creativity, and the government was committed to the economic, cultural and social wellbeing of its people. The Bill accepted that indigenous innovation was a unique approach to social innovation that informed and underpinned the work of indigenous communities.

She motivated that:

• It was indeed important to promote IKS at all levels where it was relevant for sustaining knowledge of the culture of the people and for the knowledge to be stabilised among the people, so it was imperative to teach to IKS through curriculum from the grass roots level in education.
• Promotion of IKS from the food perspective had to be included in the curriculum of schools, to be shared in theory and practice during consumer services lessons. Equally, it was also relevant to be included in agricultural sciences, life sciences, social sciences and others.
• The promotion of indigenous apparel should be rigorously promoted to an extent that it also started at schools on a very serious note.

She said that the government had always allowed for the elimination of home economics at schools, and the government was challenged to mobilise for the reintroduction of needle work and clothing at primary schools. This would allow for an exposure of learners to their fields of interest. She suggested that South Africans -- from the babies to senior citizens -- should wear traditional apparel on 24 September of every year, to fulfil Culture Day.

Discussion

The Chairperson commended Dr Masipa’s presentation.

Mr Paulsen asked if any shortcomings in the IKS Bill had been identified so far.

Dr Masipa replied that she had not fully scrutinised the Bill, although it generally appeared acceptable. She proposed the infusion and development of IKS from the primary educational level.

While the Chairperson was thanking Members and attendees for their participation, he was interjected by Mr Feroza, Coordinator: Proudly Manenberg, who requested that the entity be given an opportunity to present at the public hearings.

The Chairperson asked that a written request be made and once the Bill was referred to the NCOP, there might be another opportunity to engage in public hearings.

Mr Feroza responded that “that was not our culture as indigenous people, and you were on our soil, this was our land that you were standing on, we expect you to respect the African tradition and not Eurocentric traditions.”

The Chairperson said there were rules and regulations, and several indigenous peoples’ groupings had been respected over the last three days of public hearings. A presentation should be submitted in writing and the entity might have an opportunity to engage at the NCOP public hearings.

Mr Feroza said this “Eurocentric mannerism” must come to an end.

The meeting was adjourned.