Legal opinion: Protection, Promotion, Development and Management of Indigenous Knowledge Bill [B6B-2016]

I. Introduction
[1] This opinion seeks to advise the Chairperson of the Sport, Recreation, Arts and Culture Committee and Honourable Members on the constitutional and legal implications of the Protection, Promotion, Development Management of Indigenous Knowledge Systems Bill [B6B-2016] (“the Bill”).

[2] In terms of layout, this opinion is structured into four parts. Part I contains this introductory section, Part II sets out the background of the Bill and its purpose in order to place it into context. We then proceed to consider the constitutional and legislative framework in Part III and explore compliance of relevant clauses with this framework. A clause by clause discussion has been adequately provided for in the Explanatory Memorandum to the Bill and for avoidance of repetition, we have omitted same in this opinion. Lastly, our conclusions and recommendations will be found in Part IV.

II. Background and Purpose
[3] This is a section 76 Bill which has already been passed by the National Assembly and it was transmitted to the National Council of Provinces for concurrence. On 20 February 2018, the Speaker referred the Bill to the Sport, Recreation, Arts and Culture Committee in terms of Rule 245 (1) of the GPL Standing Rules for formal consideration.

[4] According to its long title, the Bill seeks; amongst others —

“To provide for the protection, promotion, development and management of indigenous knowledge; to provide for the establishment and functions of the National Indigenous Knowledge Systems Office; to provide for the management of rights of indigenous knowledge communities; to provide for the establishment and functions of the Advisory Panel on indigenous knowledge; to provide for access and conditions of access to indigenous communities and to provide for matters incidental thereto.”

[5] Further, the objects of the Bill as set out in clause 3 are as follows:

“3. The objects of this Act are—
(a) protect the indigenous knowledge of indigenous communities from unauthorised use, misappropriation and misuse;
(b) promote public awareness and understanding of indigenous knowledge for the wider application and development thereof;
(c) develop and enhance the potential of indigenous communities to protect their indigenous knowledge;
(d) regulate the equitable distribution of benefits;
(e) promote the commercial use of indigenous knowledge in the development of new products, services and processes
(f) provide for registration, cataloguing, documentation and recording of indigenous knowledge held by indigenous communities
(g) establish mechanisms for accreditation of assessors and the certification of indigenous knowledge practitioners; and
(h) recognise indigenous knowledge as prior art under intellectual property laws.

III. Constitutional and Legislative Framework
Constitution
[6] Cultural matters and Industrial promotion are functional arears of concurrent national and provincial legislative competence in terms of Part A of Schedule 4 of the Constitution of the Republic of South Africa, 1996.

[7] This Bill contains overarching principles for the recognition, affirmation, development and promotion of indigenous knowledge just formalizing the National Indigenous Knowledge Systems Policy (2004). The intention to promote the commercial use of indigenous knowledge in the development of new product, services and processes should be commended.

Legislative Drafting Conventions

[8] It is our opinion that the structure, wording and the text of the Bill conforms to the general accepted norms of legislative drafting.

IV. Conclusions and recommendations

[9] It is our considered opinion that the Bill was introduced in compliance with the Constitution and our recommendation that the Committee adopts it in its current form.