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South Africa
NATIONAL LEGISLATION TEXTS
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Protection, Promotion, Development and Management of Indigenous Knowledge Act, No. 6 of 2019

Version : As unamended wef 0000/00/00 [ito GG00000000_00000]
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ACT

Long title

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 knowledge of indigenous communities; to provide for the recognition of prior learning; to provide for the facilitation and coordination of indigenous  knowledge-based  innovation;  and  to  provide  for  matters  incidental thereto.
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[Act 2019_006_000_20190819 Long title unamended wef 0000/00/00 ito GG00000000_00000]

PREAMBLE

RECOGNISING that the liberation of South Africa and its people from centuries of racial discriminatory colonial rule and domination and the establishment of a constitutional democracy was, is and will remain a historic achievement of all our people;

EMPHASISING that the Constitution of the Republic of South Africa, 1996, enshrines the founding values of human dignity, the achievement of equality, non-racism and non-sexism, as well as the Bill of Rights entrenches inalienable rights to and freedom of human dignity, equality, education, culture, religion, language, research, creativity, environment and property, among others;

NOTING that the Republic of South Africa as a sovereign democratic state has taken its rightful place in the family of sovereign states and is committed and obligated to observe international treaties, covenants, as well as international law;

REALISING that the Government of the Republic of South Africa is committed to the economic, cultural and social upliftment and well-being of its people, free of discrimination;

TAKING into account that in the exercise of its sovereignty, South Africa has enacted and continues to enact legislation that underpins the protection, promotion and development of indigenous knowledge systems and indigenous knowledge;

RECOGNISING that indigenous knowledge is a national asset and that it is therefore in the national interest to protect and promote indigenous knowledge through law, policy and both public and private sector programmes;

WISHING to encourage the use of indigenous knowledge in the development of novel, socially and economically applicable products and services;

ACCEPTING that indigenous innovation is a unique approach to social innovation that informs and underpins the work of indigenous communities,

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa,as follows:-
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[Act 2019_006_000_20190819 Preamble unamended wef 0000/00/00 ito GG00000000_00000]

ARRANGEMENT OF SECTIONS

CHAPTER 1 DEFINITIONS
1 Definitions
CHAPTER 2 APPLICATION AND OBJECTS OF ACT 
2 Application of Act
3 Objects of Act
CHAPTER 3NATIONAL INDIGENOUS KNOWLEDGE SYSTEMS OFFICE
4 Establishment of NIKSO
5 Functions and Powers of NIKSO
6 Administration of NIKSO
7 Establishment of Advisory Panel
8 Role of Advisory Panel
CHAPTER 4PROTECTION OF INDIGENOUS KNOWLEDGE
9 Subject matter of protection
10 Term of protection
11 Eligibility criteria for protection
12 Vesting of rights in indigenous knowledge
13 Rights conferred
CHAPTER 5 RECOGNITION OF PRIOR LEARNING OF INDIGENOUS KNOWLEDGE PRACTITIONERS
14 Accreditation of assessors
15 Certification of indigenous knowledge practitioners
16 Register of Designations
CHAPTER 6REGISTRATION OF INDIGENOUS KNOWLEDGE
17 Registration Office for Indigenous Knowledge
18 Curator of indigenous knowledge
19 Register of indigenous knowledge
20 Registration of indigenous knowledge
21 Inspection of Register
22 Certificates of Curator to be prima facie evidence
23 Register to be constructive notice
24 Amendment of Register
CHAPTER 7 COMMERCIAL UTILISATION OF INDIGENOUS KNOWLEDGE
25 Product development, commercialisation, services and processes 
26 Access to and use of indigenous knowledge
CHAPTER 8 ENFORCEMENT OF RIGHTS 
27 Dispute Resolution Committee
28 Offences and penalties
CHAPTER 9 GENERAL PROVISIONS
29 Transnational arrangements
30 Multiple claims to indigenous knowledge
31 Regulations
32 Effect on other laws
33 Transitional arrangements
34  Short title and commencement
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[Act 2019_006_000_20190819 Table of contents unamended wef 0000/00/00 ito GG00000000_00000]

CHAPTER 1. DEFINITIONS

1. Definitions

In this Act, unless the context indicates otherwise-

"access" includes the acquisition of indigenous knowledge by natural and legal persons as facilitated by NIKSO in terms of this Act;

"accreditation" means a formal procedure by which NIKSO grants or delegates authority to an assessor to assess and verify the qualification of indigenous knowledge practitioners in accordance with pre-determined requirements for purpose of certification;

"assessor" means a qualified person accredited and assigned by NIKSO to assess applicants according to applicable pre-determined standards having regard to that person’s possession of indigenous knowledge, expertise and skills for the purpose of being certified as an indigenous knowledge practitioner;

"benefit sharing" means the fair and equitable sharing of monetary and non-monetary benefits in terms of a benefit sharing agreement between the trustee of the indigenous community and the licence holder;

"certification", in respect of indigenous knowledge practitioners, means the formal qualification acknowledgment, subject to an assessment by an assessor of practitioner within a discipline or practice, according to applicable, pre-determined standards, having regard to that person’s possession of indigenous knowledge expertise and skills;

"commercial use" means the use of indigenous knowledge for financial gain;

"Constitution" means the Constitution of the Republic of South Africa, 1996;

"cultural and social identity" means the particular and distinctive identity or characteristics of a certain indigenous community or of an individual as far as he or she is influenced by belonging to a certain indigenous community;

"Curator" means the Curator of indigenous knowledge, who is the head of the Registration Office of Indigenous Knowledge appointed in terms of section 18 of this Act;

"Department" means the department responsible for science and technology;

"discipline of practice" means a group of people who share the same understanding and methodology of a given practice, craft or profession, which-

(a) evolved spontaneously; or

(b) is created based on people’s engagement,

in a process of collective learning in a shared domain of human endeavour;

"functional", in relation to indigenous knowledge, means knowledge that is scientific and, or technical in nature;

"indigenous community" means any recognisable community of people-

(a) developing from, or historically settled in a geographic area or areas located within the borders of the Republic;

(b) characterised by social, cultural and economic conditions, which distinguish them from other sections of the national community; and

(c) who identify themselves as a distinct collective;

"indigenous cultural expression" means expressions that have a cultural content that developed within indigenous communities and have assimilated into their cultural and social identity, including but not limited to-

(a) phonetic or verbal expressions;

(b) musical or sound expressions;

(c) expressions by action; and

(d) action tangible expressions;

"indigenous knowledge" means knowledge which has been developed within an indigenous community and has been assimilated into the cultural and social identity of that community, and includes-

(a) knowledge of a functional nature;

(b) knowledge of natural resources; and

(c) indigenous cultural expressions;

"indigenous knowledge practitioner" means a person who is certified as sufficiently knowledgeable in indigenous knowledge practices to render a related service, subject to section 15 of this Act and relevant prescribed practice standards being met;

"licence  holder" means any person who successfully enters into a licence agreement with an indigenous community to use indigenous knowledge;

"Minister" means the Minister responsible for science and technology;

"natural  resources" means any materials and components that can be found within the environment and may exist as a separate entity, such as genetic resources, fresh water, air, and mineral deposits with actual or potential use or value;

"NIKSO" means the National Indigenous Knowledge Systems Office established in section 4;

"prescribed" means prescribed by regulations;

"prior informed consent" means the consent in respect of indigenous knowledge granted by a trustee, which has been obtained-

(a) free from any manipulation, interference or coercion;

(b) after full disclosure of the intent and scope of the activity; and

(c) in a language and process understandable to the community;

"Registration Office" means the Registration Office for Indigenous Knowledge within NIKSO;

"Register" means the Register of indigenous knowledge provided for in section 19, and includes any official documents, compilations or records, including databases, reflecting information in respect of indigenous knowledge kept by NIKSO;

"Register of Designations" means a register of names and levels of competencies of certified indigenous knowledge practitioners and accredited assessors;

"regulations" means regulations made in terms of this Act;

"this Act" includes the regulations; and

"trustee" means a natural or legal person that is duly delegated in terms of the practices of an indigenous community to represent that indigenous community in matters pertaining to indigenous knowledge and to be vested with the custodianship of indigenous knowledge emanating from it, which person is deemed to be a trustee appointed in terms of the law of trusts and to have the powers and duties of such a trustee, with any reference in this Act to an act performed, or the rights held, by an indigenous community deemed to be a reference to that act performed, or rights held, by the trustee of that indigenous community.
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[Act 2019_006_001_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

CHAPTER 2. APPLICATION AND OBJECTS OF ACT

2. Application of Act

This Act applies to all-

(a) persons in the Republic, including the State; and

(b) indigenous knowledge registered under this Act.
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[Act 2019_006_002_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

3. Objects of Act

The objects of this Act are to-

(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 the accreditation of assessors and the certification of indigenous knowledge practitioners; and

(h) recognise indigenous knowledge as prior art under intellectual property laws.

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[Act 2019_006_003_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

CHAPTER 3. NATIONAL INDIGENOUS KNOWLEDGE SYSTEMS OFFICE

4. Establishment of NIKSO

NIKSO is hereby established within the Department.
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[Act 2019_006_004_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

5. Functions and powers of NIKSO

The functions and powers of NIKSO include-

(a) implementation of this Act;

(b) protecting and recognising indigenous knowledge as property owned by indigenous communities;

(c) facilitating the redress of rights and benefits to indigenous communities which have previously been deprived of such rights and benefits;

(d) facilitating and coordinating the development of indigenous knowledge;

(e) establishing and managing the registration of assessors and indigenous knowledge practitioners;

(f) empowering indigenous communities through education and awareness campaigns to enable them to recognise and utilise indigenous knowledge for cultural and economic benefit;

(g) determining the criteria for issuing licences for the use of indigenous knowledge;

(h) certifying licence agreements for the use of indigenous knowledge;

( i) assisting indigenous communities in the negotiation of benefit sharing agreements for the use of indigenous knowledge;

(j) facilitating the negotiation of licences between trustees and users for the use of indigenous knowledge for commercial purposes;

(k) making recommendations to the Minister regarding norms and standards for the certification of indigenous practitioners;

(l) liaising with the Department to facilitate the entering into of licence agreements with users of indigenous knowledge on behalf of an indigenous community where the relevant indigenous community cannot be identified;

(m) ensuring that the Register of Designations is maintained and made available;and

(n) carrying out any functions that are consistent with the objects of this Act.
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[Act 2019_006_005_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

6. Administration of NIKSO

(1) The Minister must appoint a suitably skilled and qualified person as the Head of NIKSO in accordance with the Public Service Act, 1994 (Proclamation No. 103 of1994).

(2) The Head of NIKSO-

(a) is responsible for the administration and general management of NIKSO,subject to directions and instructions issued by the Minister or the Director-General as delegated by the Minister; and

(b) must report to the Director-General on all matters relating to the management of NIKSO.

(3) The staff of NIKSO consists of such number of employees as may be-

(a) appointed by the Minister, in accordance with the Public Service Act, 1994; or

(b) seconded from any organ of state,

as are necessary to enable NIKSO to perform its functions.
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[Act 2019_006_006_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

7. Establishment of Advisory Panel

(1) The Minister may establish an Advisory Panel based on criteria as prescribed,consisting of a minimum of five, but no more than ten, members on specific matters relating to the objects of this Act.

(2) The Advisory Panel must be broadly representative of the-

(a) different relevant government departments;

(b) indigenous knowledge practitioners;

(c) industry; and

(d) specialists in the discipline of practice,

based on criteria as prescribed.

(3) The Advisory Panel may be convened by the Head of NIKSO, as and when the need arises.

(4) The members of the Advisory Panel, with the exclusion of subsection (2)(a) representatives who are subject to public service remuneration prescriptions, must only be remunerated for time spent on the business of NIKSO, in accordance with rates determined by the Minister, with the concurrence of the Minister of Finance.

(5) A member of the Advisory Panel holds office for a period of three years and may,upon expiry of that period, be reappointed for a further period of three years.

(6) Notwithstanding subsection (5), for the sake of continuity, the Minister may reappoint a core of at least three members of the Advisory Panel, as prescribed.

(7) The Minister may, subject to the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000), remove a member of the Advisory Panel for-

(a) non-performance;

(b) serious misconduct;

(c) conduct that undermines the integrity or objective of the Advisory Panel; or

(d) being convicted of a criminal offence and sentenced to imprisonment without the option of a fine.

(8) NIKSO must provide administrative and secretarial support to the Advisory Panel.

(9) For the purpose of subsection (2)(c), "industry" means any sector of an economy dealing in the commercial use of indigenous knowledge based products and services.
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[Act 2019_006_007_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

8. Role of Advisory Panel

The Advisory Panel must-

(a) provide expert and strategic advice to NIKSO in respect of the protection,promotion, development and management of indigenous knowledge;

(b) assist with the mobilisation of indigenous communities for purposes of pursuing specific activities conducted by NIKSO; and

(c) advise NIKSO on any specific issue referred to it and execute any task that NIKSO may entrust to it in terms of this Act.
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[Act 2019_006_008_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

CHAPTER 4. PROTECTION OF INDIGENOUS KNOWLEDGE

9. Subject matter of protection

(1) This Act protects registered indigenous knowledge.

(2) Indigenous knowledge constitutes property of indigenous communities within the meaning of section 25 of the Constitution.
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[Act 2019_006_009_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

10. Term of protection

(1) Indigenous knowledge is protected for as long as it meets the eligibility criteria set out in section 11.

(2) If indigenous knowledge ceases to meet the eligibility criteria set out in section 11, it falls into the public domain from the date of proven ineligibility.
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[Act 2019_006_010_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

11. Eligibility criteria for protection

The protection of indigenous knowledge contemplated in section 9 applies to indigenous knowledge, which-

(a) has been passed on from generation to generation within an indigenous community;

(b) has been developed within an indigenous community; and

(c) is associated with the cultural and social identity of that indigenous community.
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[Act 2019_006_011_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

12. Vesting of rights in indigenous knowledge

(1) Subject to section 9, the custodianship of indigenous knowledge eligible for protection vests in the trustee of that indigenous community.

(2) The trustee of the indigenous community-

(a) holds the indigenous knowledge in trust on behalf of the indigenous community; and

(b) is responsible for and accountable to the indigenous community for the protection of their rights.

(3) In the event that, and for as long as, the indigenous community of the relevant indigenous knowledge cannot be identified and designated, NIKSO must act as custodian of that indigenous knowledge, with the rights and obligations of a trustee inrespect of that indigenous knowledge.
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[Act 2019_006_012_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

13. Rights conferred

(1) Subject to subsection (3), the indigenous community holding indigenous knowledge has the exclusive right to-

(a) any benefits arising from its commercial use;

(b) be acknowledged as its origin; and

(c) limit any unauthorised use of the indigenous knowledge.

(2) Subject to subsection (3), a person wishing to make commercial use of indigenous knowledge must-

(a) apply through NIKSO for a licence in accordance with section 26(1); and

(b) when so applying, must indicate-

(i)  the identity of the indigenous community;

(ii)  the place of origin of the indigenous knowledge; and


(iii)  whether prior informed consent of the indigenous community has been obtained and a benefit sharing arrangement entered into with that indigenous community.

(3) An individual member of the indigenous community holding indigenous knowledge who wishes to make commercial use of the indigenous knowledge-

(a) must obtain permission from the indigenous community; and

(b) may only make commercial use of that indigenous knowledge in a manner and subject to the indigenous community imposed terms and conditions as formalised in an agreement with the trustee.
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[Act 2019_006_013_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

CHAPTER 5. RECOGNITION OF PRIOR LEARNING OF INDIGENOUS KNOWLEDGE PRACTITIONERS

14. Accreditation of assessors

(1) A certified indigenous knowledge practitioner may apply to NIKSO in the prescribed manner for recognition and accreditation as an assessor.

(2) In processing a subsection (1) application, NIKSO-

(a) must evaluate each application in accordance with the prescribed proceduresand requirements; and

(b) may issue an accreditation certificate to act as an assessor if it is satisfied that the applicant meets the prescribed criteria.
 

(3) NIKSO may impose any reasonable conditions on such accreditation.

(4) NIKSO may, in the prescribed manner, cancel the accreditation of an assessor, if the assessor has-

(a) made a false declaration or intentionally submitted a fraudulent application to NIKSO;

(b) failed to comply with or contravened any of the conditions of the accreditation;

(c) failed or refused to comply with the prescribed accreditation process;

(d) accepted unlawful compensation, in respect of the certification of an indigenous knowledge practitioner;

(e) charged excessive or unreasonable fees in respect of the certification of an indigenous knowledge practitioner;

(f) undermined, through any act of omission, the interests of the discipline or practice for which the assessor is registered; or

(g) been convicted of a criminal offence and sentenced to imprisonment without the option of a fine.
 

(5) The Minister must prescribe accreditation procedures to be followed by registered assessors.
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[Act 2019_006_014_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

15. Certification of indigenous knowledge practitioners

(1) Any person who wishes to register their qualifications as an indigenous knowledge practitioner must apply, in the prescribed manner, to NIKSO to be so certified and recorded in the Register of Designations.

(2) NIKSO may refer the application for certification to an assessor for assessment and recommendation.

(3) In assessing the eligibility of an applicant, the assessor must apply the prescribed norms and standards for certification of indigenous knowledge practitioners.

(4) Upon completion of the assessment, if an applicant meets all the prescribed requirements, the assessor must recommend to NIKSO that a certificate of competency be issued to the applicant for purposes of certification.

(5) Subject to subsection (4), NIKSO must-

(a) issue the certificate of competency to the applicant; and

(b) record the applicant as a certified indigenous knowledge practitioner in the Register of Designations.

(6) Subject to subsection (5), no indigenous knowledge practitioner may practice for gain, unless the practitioner is registered with the relevant government department and been granted permission to practice in terms of the applicable prescribed practice standards.

(7) NIKSO may, in the prescribed manner, revoke the certification of an indigenous knowledge practitioner if such practitioner has-

(a) made a false declaration or intentionally submitted a fraudulent application to NIKSO;

(b) failed or refused to comply with the prescribed certification procedures;

(c) failed to comply with or contravened any of the conditions set out in the certificate;

(d) undermined, through any act or omission, the interests of the discipline of practice for which the practitioner is certified;

(e) been convicted of a criminal offence and sentenced to imprisonment without the option of a fine; or

(f) voluntarily relinquished practice as an indigenous knowledge practitioner.

(8) The Minister must prescribe application standards and procedures to be followed by applicants.
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[Act 2019_006_015_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

16. Register of Designations

(1) NIKSO must-

(a) keep the Register of Designations in the prescribed manner; and

(b) ensure the security of the Register of Designations.

(2) Where information may be accessed by persons other than the indigenous community or an individual within that indigenous community, NIKSO must facilitate such access on payment of a prescribed fee.
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[Act 2019_006_016_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

CHAPTER 6. REGISTRATION OF INDIGENOUS KNOWLEDGE

17. Registration Office for Indigenous Knowledge

NIKSO must establish a Registration Office for Indigenous Knowledge.
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[Act 2019_006_017_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

18. Curator of indigenous knowledge

(1) The Minister must appoint a suitably skilled and qualified person as the Curator of indigenous knowledge in accordance with the Public Service Act, 1994 (Proclamation No. 103 of 1994).

(2) The Curator is responsible for the control of the Registration Office, subject to the directions and instructions issued by the Minister or the Director-General as delegated by the Minister.

(3) The Curator may delegate any of the powers and entrust any of the duties assigned to him or her by this Act, to any officer within NIKSO.

(4) The Curator must permit the trustee to act on behalf of the indigenous community for whom he or she is a trustee, in connection with registration under this Act or any proceeding relating thereto.
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[Act 2019_006_018_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

19. Register of indigenous knowledge

(1) NIKSO must-

(a) keep a Register of Indigenous Knowledge in the prescribed manner; and

(b) ensure the security of the Register.
 

(2) The Curator must record in respect of each item of indigenous knowledge-

(a) the particulars of the indigenous community from which the indigenous knowledge originates;

(b) whether the indigenous knowledge is functional indigenous knowledge or an indigenous cultural expression, or both;

(c) whether the information provided may only be shared with persons outside the indigenous community with its prior informed consent;

(d) whether any agreements have been entered into between an outside party and the indigenous community;

(e) whether the indigenous knowledge is closely related to indigenous knowledge registered by another indigenous community, and if so, details of that indigenous knowledge; and

(f) any such other particulars as may be prescribed.

(3) The Register is presumed to be evidence of any matters directed or authorised by this Act to be recorded therein.
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[Act 2019_006_019_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

20. Registration of indigenous knowledge

(1) The trustee of an indigenous community may apply to the Curator in the prescribed manner for the registration of indigenous knowledge.

(2) Subject to the provisions of this Act, the Curator may-

(a) approve the application;

(b) approve the application subject to any conditions or limitations, and register the indigenous knowledge; or

(c) reject the application if it does not meet the criteria set out in section 11.

(3) The Curator must, within 30 days after the registration of the indigenous knowledge-

(a) issue to the applicant a certificate of registration in the prescribed form; and

(b) publish, in the prescribed form, a notice of registration in the Indigenous Knowledge Bulletin and any appropriate publication.

(4) In order to exercise any right in respect of indigenous knowledge under this Act, the indigenous community must register the indigenous knowledge in terms of Chapter 6.
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[Act 2019_006_020_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

21. Inspection of Register

(1) Subject to the provisions of this Act, the Curator must make the Register available for inspection by the public during working hours, upon payment of the prescribed fee.

(2) Notwithstanding subsection (1), additional documents relating to the registration of indigenous knowledge may only be made available to the public, if the person seeking access enters into a prescribed non-disclosure agreement.

(3) The Curator must, as prescribed, at the request of any person, and on payment of the prescribed fee, furnish a copy of an extract of the Register, or a copy of a certificate of registration.
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[Act 2019_006_021_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

22. Certificates of Curator to be prima facie evidence

(1) A certificate appearing to be issued by the Curator, in respect of any record authorised by this Act, is presumed evidence of the content thereof and action authorised therein, unless proven otherwise.

(2) In any judicial proceedings-

(a) printed or written copies or extracts appearing to be copies of or extracts from the Register; or

(b) any document relating to indigenous knowledge certified by the Curator of the Registration Office, 
 

is presumed evidence of the content thereof, unless proven otherwise, and may be admitted as evidence without further proof or production of the original.
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[Act 2019_006_022_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

23. Register to be constructive notice

In any proceedings regarding the rights registered in respect of indigenous knowledge, it may be presumed-

(a) that every party to those proceedings was aware of the particulars entered in the Register from the date of the section 20(3)(b) publication; and

(b) that any person using the indigenous knowledge did so knowing that it was registered and that it was a pre-condition of use that the person should have entered into a benefit sharing agreement before commencing use.
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[Act 2019_006_023_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

24. Amendment of Register

(1) The Curator may-

(a) upon receiving an application from an interested person in the prescribed manner; and

(b) after granting the indigenous community an opportunity to make representations in response to the application, [sic - no de-indented new paragraph] amend the Register.

(2) The Curator must amend an entry in the Register in accordance with any finding by a court.
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[Act 2019_006_024_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

CHAPTER 7. COMMERCIAL UTILISATION OF INDIGENOUS KNOWLEDGE

25. Product development, commercialisation, services and processes

(1) NIKSO may, at the request of an indigenous community, provide assistance or facilitate the commercial use of its indigenous knowledge.

(2) NIKSO must, in respect of commercial use of indigenous knowledge-

(a) promote partnerships for innovation and product development;

(b) coordinate funding;


(c) develop market strategies; and

(d) promote commercial use of products, services, processes and the use of technology.
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[Act 2019_006_025_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

26. Access to and use of indigenous knowledge

(1) Any person who intends to use indigenous knowledge for commercial purposes must-

(a) apply in the prescribed manner for a licence authorising the use of that indigenous knowledge; and

(b) enter into a licence agreement with the trustee of the relevant indigenous community for the use of that indigenous knowledge,

as facilitated by NIKSO.

(2) NIKSO must consult with the trustee on the terms of the subsection (1)(b) licence agreement for the intended use and benefits payable by the licence holder.

(3) In the event that the indigenous knowledge, which is the subject of the licence agreement, is-

(a) functional in nature, then any obligation on the part of the licence holder to pay a royalty expires 20 years after the date of agreement; and 

(b) an indigenous cultural expression, then any obligation on the part of the user to pay a royalty expires 50 years after the date of agreement.

(4) No prior informed consent for the use of indigenous knowledge is required for-

(a) criticism or academic review;

(b) reporting news or current events;

(c) judicial proceedings;

(d) any use that is incidental to the above purposes; and

(e) in circumstances of national emergencies or natural disasters, as long as the relevant indigenous community is compensated for the use of their indigenous knowledge.

(5) A licence holder must, subject to subsection (1), acknowledge the relevant indigenous community by mentioning them or the geographical place from which the indigenous knowledge originated.

(6) Any person who is aggrieved by a NIKSO decision or the conditions imposed with regard to access, may within 60 working days declare a dispute and refer the matter for resolution in terms of section 27.
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[Act 2019_006_026_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

CHAPTER 8. ENFORCEMENT OF RIGHTS

27. Dispute Resolution Committee

(1) The Minister may, subject to prescribed terms and conditions, appoint members of the Dispute Resolution Committee to resolve any dispute arising from this Act on an ad hoc basis.

(2) In resolving a dispute, the Dispute Resolution Committee must consider customary laws which may have a bearing on the subject matter of the dispute.

(3) Any party to a matter referred to the Dispute Resolution Committee may take the matter for review to the High Court.

(4) The Dispute Resolution Committee may, as a sanction:

(a) issue a written warning to the licence holder;

(b) issue a notice prohibiting the unauthorised use of indigenous knowledge by the licence holder; and

(c) recommend to NIKSO the cancelling, suspending or revoking of the licence rights of a licence holder.
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[Act 2019_006_027_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

28. Offences and penalties

Any third party who-

(a) knowingly makes commercial use of indigenous knowledge in a manner which is not in accordance with an agreement entered into with the indigenous community; and

(b) infringes the rights of that indigenous community,

is guilty of an offence and on conviction liable to pay a fine as prescribed.
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[Act 2019_006_028_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

CHAPTER 9. GENERAL PROVISIONS

29. Transitional arrangements

(1) Indigenous knowledge originating in a foreign jurisdiction must be given the same protection granted to indigenous knowledge originating in the Republic, if the laws of that foreign jurisdiction provide reciprocal protection to indigenous knowledge originating in the Republic.

(2) In instances where indigenous knowledge originates in one or more indigenous communities in foreign jurisdictions and in the Republic, NIKSO must assist the relevant foreign authorities and the indigenous community of the Republic to conclude an arrangement to share equitably in the proceeds accruing to the indigenous communities in terms of that benefit sharing agreement.
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[Act 2019_006_029_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

30. Multiple claims to indigenous knowledge

(1) Where there are multiple claims to indigenous knowledge, any remuneration payable under a benefit sharing agreement must be apportioned equally among the trustees.

(2) Where an existing benefit sharing agreement in terms of subsection (1) does not include all the trustees of the relevant indigenous communities, the agreement must be amended accordingly.
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[Act 2019_006_030_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

31. Regulations

(1) The Minister may make regulations regarding any matter pertaining to-

(a) the protection, promotion, development and management of indigenous knowledge;

(b) procedures for securing registration in the Register and obtaining licences to use indigenous knowledge from NIKSO;

(c) matters which may or must be prescribed in terms of this Act; and

(d) in general, any ancillary or incidental matter that it is necessary to prescribe for the proper implementation or administration of this Act.
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[Act 2019_006_031_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

32. Effect on other laws

(1) This Act does not alter or detract from any right in respect of any statute or the common law.

(2) Compliance with any procedures or requirements laid down in this Act does not constitute compliance with any procedures or requirements imposed in any other Act.
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[Act 2019_006_032_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

33. Transitional arrangements

(1) An indigenous community wishing to register indigenous knowledge already in existence at the time of commencement of this Act, must register such indigenous knowledge in terms of this Act.

(2) Any continued use of indigenous knowledge, after the commencement of this Act, must be regulated in terms of a licence agreement between the trustee of the relevant indigenous community and the potential licence holder, entered into within 12 months from the date of commencement of this Act.
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[Act 2019_006_033_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

34. Short title and commencement

This Act is called the Protection, Promotion, Development and Management of Indigenous Knowledge Act, 2019, and comes into operation on a date determined by the President by proclamation in the Gazette
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[Act 2019_006_034_20190819 unamended wef 0000/00/00 ito GG00000000_00000]

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Copyright Rita V. Felgate 2019