Rooibos and Honeybush are two South African plants that are used as commercial commodities by big companies for pharmaceutical and cosmetic purposes, supplying a huge local and international rooibos tea industry.1 However they have both been used historically by the Khoi-San peoples of South Africa: for livelihoods, for medicinal, food and health purposes, for skin care and in other ways. In spite of this, for more than 100 years now, the tea trade has continued without recognition of the Khoi-San’s indigenous knowledge and the rights that accompany it.
The Khoi and San peoples (collectively known as Khoi-San)2 self-identify as indigenous peoples of South Africa and have occupied the region for thousands of years, but during apartheid they were forced into the racial category of “Coloured”. This was done intentionally to dispossess them of their land, culture, traditions, languages, heritage and natural resources, as well as their ethnic and indigenous identity. Official statistics in South Africa still reflect the apartheid typology of race and language and do not reflect the presence of Khoi-San people in South Africa. It is not surprising, therefore, that historically their property rights have been ignored. However with the Nagoya Protocol coming into force, the rooibos industry now has a legal obligation to share benefits with the Khoi-San community as the associated traditional knowledge holders. The South African government has conducted a study on the traditional knowledge associated with rooibos in South Africa, which confirmed that the original holders of knowledge on the use of rooibos were the Khoi and the San peoples. Their indigenous and genetic resources had been utilised for tea in the Western Cape for over 150 years. Rooibos and honeybush are examples of plants known to the Khoi-San long before European colonisation.
Most of the Khoi-San people have moved away from areas where rooibos grows naturally, but some of them have remained and are still practising the old and the new ways of harvesting and trading. Knowledge of the uses of the species is still passed orally from generation to generation, including harvesting and preparation practices.
The National Khoi and San Council (NKC) first became aware of Nestle’s intention to patent the results from their research on rooibos and honeybush through the work of Natural Justice (NJ) and the film they produced around this matter. The NKC has started to engage with our South African rooibos industry, with support from NJ and funding institutions such as OSISA3, to persuade them to recognise the indigenous knowledge of the Khoi-San peoples and pay benefits to these communities. The NKC and the San people, under the leadership of the South African San Council (SASC) and assisted by their legal representative Roger Chennells, negotiated benefit-sharing agreements around certain plant species (such as Hoodia). We then entered into a Memorandum of Understanding with the National San Council (NSC) to establish a legal negotiating team consisting of members of both councils. Together we worked towards the goal of bringing the rooibos industry to the negotiation table.
Nestle approached the Khoi and San during 2014 for a South African product they intended to develop using rooibos. A benefit-sharing agreement was subsequently signed between Nestle and the NKC and the SASC. It was a big relief that Nestle was so willing to comply with their benefit-sharing obligations. Biopatenting is a very difficult issue, for we are not dealing with an isolated community; the impact is widespread to include all the Khoi-San communities. So it is difficult to visualise the impact biopatenting would have had.
For us the concepts of access and benefit-sharing that arise from the utilisation of indigenous/traditional knowledge play a vital role in post-apartheid South Africa’s restitution processes. They entail the restitution of the injustices of the past. For generations there was misappropriation of knowledge, and that must now be repaired. This issue is also inseparable from the issue of land rights. We also see rights related to access and benefit-sharing as part of a process of creating generational rights to guarantee that the descendants of the Khoi-San will always benefit from the traditional knowledge of their people.