The Patents Act provides that new varieties of plants produced by biological processes cannot be protected by a patent. Such new varieties (which could be produced by cross-breeding or which could develop naturally for example where someone discovers "sport") can be protected by a plant breeders’ right.

Plant Breeders’ Rights are obtained in terms of the South African Plant Breeders’ Rights Act which is administered by the South African Department of Agriculture.

To qualify for protection, a variety of plant must be new, distinct, uniform and stable.

To be "new", propagating or harvested material of the variety must not have been sold or otherwise disposed of by, or with the consent of, the breeder for purposes of exploitation of the variety:

• in South Africa for more than one year;
• in a Convention country or an agreement country in the case of varieties of vines and trees, for more than six years; or
• in a Convention country or an agreement country in the case of other varieties for more than four years;
• prior to the date of filing of the application for a Plant Breeders' Right.

To be "distinct", the variety must be clearly distinguishable from any other variety of the same kind of plant of which the existence on the date is a matter of common knowledge.

To be "uniform", the variety must be sufficiently uniform with regard to the characteristics of the variety in question, subject to the variation that may be expected from the particular features of the propagation thereof.

To be "stable", the characteristics of the variety must remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of such cycle.

A plant breeders’ right must be applied for by the breeder of a new variety. The "breeder" is the person who bred or discovered and developed the variety, the employer of such person, or the successor in title of such person.

An application for a plant breeders’ right is submitted, together with a completed Technical Questionnaire, and proof of right to apply to the Department of Agriculture. The Technical Questionnaire provides a detailed description of the new characteristics of the variety. Plant material must also be submitted or be made available. The Department of Agriculture then examines the application and if it is satisfied that the variety complies with the requirements of the Plant Breeders Rights Act and that the plant material is as described in the Technical Questionnaire, the right is granted. The examination of slow-growing plants such as trees may take a number of years.

The duration of a plant breeders' right is :

• 25 years, in the case of vines and trees; and
• 20 years, in all other cases,

calculated from the date of grant. An annual renewal fee is payable before 31 January of each year during the currency of the plant breeders' right.

After grant of a plant breeders’ right, plant material which is sold for the purposes of propagation must indicate the denomination of the variety on a label which is attached thereto or, if it is packed in a container, on the container. If a trademark is used in conjunction with the denomination, the trademark and denomination must be clearly distinguishable.