IT IS a well known fact that since the arrival of colonial settlers in southern Africa, South Africa's indigenous plant material has been taken to First World countries where it has been – and continues to be – propagated and commercially exploited with inadequate compensation to SA.

According to UCT environmental lawyer and lecturer, Professor Jan Glazewski, one of the most common examples is Pelargonium (geranium, as it is popularly known), which now widely adorn the flower boxes of European homes. Other well known endemic species are Clivias, Freesias and Gladioli.

Glazewski and UCT law faculty researcher Emma Witbooi, in collaboration with botanists, horticulturists and biotechnologists, are pooling their research efforts to address the challenges of adequate legal protection via recent contributions to the Draft Biodiversity Bill of the Department of Environment Affairs.

The Bill is being compiled in response to South Africa's adoption of the 1992 UN Convention on Biodiversity, the main objectives of which are the conservation and sustainable use of biodiversity and the "fair and equitable sharing of benefits" arising from the exploitation thereof.

Useful information for the drafting of the Bill was also obtained from a National Research Foundation (NRF ) funded study by Witbooi in 2000 titled: 'Biodiversity and the law: Legal issues arising from the implementation of the Convention on Biological Diversity into South African law'.

One chapter of the Draft Bill aims to regulate the phenomenon of "bioprospecting" (the search for wild species, genes and their products with actual and potential use to humans) by introducing legal mechanisms to both regulate the exportation of flora and fauna, as well as the exploitation of associated indigenous knowledge.

As part of their submissions to the Draft Biodiversity Bill, the UCT team is examining orthodox intellectual property instruments, such as patent law, as well as alternative legal mechanisms, such as benefit sharing agreements, in an attempt to meet Third World needs.

Glazewski says that valuable lessons have also been learnt from a research and licence agreement entered into between the National Botanical Institute of South Africa (NBI) and USA company Ball Horticulture, in August 1999.

In terms of the five-year agreement, Ball gets access to "25 plant items" of indigenous plant material at any one time. Exactly what Ball gains access to is subject to a complex legal definition. In 2001, a press furore erupted in which it was alleged that South Africa's plant heritage had been sold without adequate and on-going gain to South Africa.

The chairman of the board of the NBI appointed a task team to investigate the agreement, headed by Glazewski as the legal expert, working alongside horticulturists and scientists.

The team found that while the press reports were exaggerated, it could be argued that there were insufficient non-monetary benefits from the agreement. Negotiations with Ball were subsequently re-opened and the initial agreement seems likely to be amended soon to make it more beneficial for SA.