values and norms relating to land, resources and knowledge.^40 It is further
contended that, while IP instruments rest on the existence of novelty, an
identifiable author/inventor, specific delineation and a temporal limitation,
these criteria are not applicable to traditional knowledge.
An alternative route to indigenous knowledge protection is via Article
8(j) of the Convention on Biodiversity (CBD), which affirms that indigenous
peoples have rights over their knowledge, practices and innovations in
respect of indigenous biological resources, whether or not these rights are
patentable. Each African state that is a signatory to the CBD is required to
put in place the necessary legislation enforcing its terms. The required legis-
lation was enacted in South Africa in 2004 (South African Environmental
Management: Biodiversity Act No. 10). The regulations implementing those
terms that relate to bioprospecting, access and benefit sharing (section
97(1): dāh) state that permits will be required for all bioprospecting activi-
ties (which include those based on traditional knowledge). Benefit-sharing
agreements will have to be drawn up between all would-be bioprospectors
and stakeholders, according to a specified template. Regulation 10(3) lays
down principles for identifying stakeholders, including communities or
parts of communities.
The South African Draft
National Policy on TM (2008)
seeks to draw attention to the
inadequate protection afforded
indigenous medical knowl-
edge by currently available
legal instruments and contem-
plates legislation that is
specific and applicable to
African TMs.
An interesting test case in
this regard is that of the San
peoples in southern Africa,
whose claim to intellectual
property rights in the use of
Hoodia (Figure 5.6) species
(Apocynaceae) as stimulants
and appetite suppressants
while on hunting forays has
only recently been recognised.
This followed the
patenting, by scientists from
the South African Council
for Scientific and Industrial
Traditional medical practice in Africa | 101Figure 5.6 Hoodiaspp. From: Flowering Plants of
South Africa Vol. 3, t. 23 (1923). Artist: K.H. Lansdell. Ed.
I.B. Pole Evans. L. Reeve and Co. Ltd., London.