. 2019 Nov 5;29(2):285–301. doi: 10.1017/S0963180119001075

Table 1.

Rooibos Benefit Sharing Agreement—the Process

Date	Events and Actions
09/2010	San Council letter to South African Minister of Environmental Affairs to note noncompliance of rooibos industry with National Environmental Management Biodiversity Act.
11/2011	First meeting between San Council, South African Department of Environmental Affairs (DEA), ²⁷ Rooibos Council and Honeybush Tea Association. Representatives of Rooibos Council claim that the NEMBA does not apply to the rooibos industry.
01/2012	San Council receives letter from DEA Minister approving the process to explore the rights of the San under NEMBA in relation to rooibos.
05/2012	No further communication following the January letter from DEA. San Council letter to DEA in May threatening legal action if there was no significant progress.
06/2012	DEA provides action plan to San Council.
07/2012	San case presented to Rooibos and Honeybush Associations at meeting organized by DEA. Representative of Rooibos Council described the TK case as “vague.”
08/2012	San Council hold discussions with the Khoi leadership, and invites them to join as equal partners in the benefit sharing case. The two legal teams are Chennells Albertyn for the San, and Natural Justice for the Khoi.
2012	Concerns expressed to the DEA by Heiveld Cooperative in Nieuwoudville ²⁸ that the “true knowledge bearers” of rooibos, namely the small farming communities in the Cederberg mountains, had been excluded from discussions. San and Khoi commenced process to ensure inclusion.
11/2012	First full meeting between all stakeholders of the rooibos and honeybush industry, as well as Khoi, San, and DEA. Legal representatives present the case of the San and Khoi as TK holders. The official response of the rooibos industry was that it was not convinced by the TK claim, and they saw no reason to negotiate.
01/2013	Letter sent to DEA by the combined legal teams setting out the history of attempts to bring the rooibos industry to the table to negotiate, and threatening legal action if the stalemate was not broken.
07/2013	Meeting at DEA between DEA personnel, San, Khoi, and respective legal teams to address the deadlock.
07/2013	Memorandum of Association, signed between San Council and National Khoi-San Council, establishes both as equal partners in all matters related to the RBSA. (This approach had been informally agreed-to in July 2012).
2013-2014	San and Khoi attempt to secure progress with negotiations by holding informal meetings with governmental officials and representatives of the rooibos industry, and addressing letters to DEA as well as other interested parties.
06/2014	DEA commissions Traditional Knowledge study (known as The TK study) to ascertain whether San and/or Khoi are traditional knowledge holders on rooibos.
08/2014	DEA addresses letter to Rooibos Council informing them that they were obliged to negotiate a benefit sharing agreement. Rooibos Council does not respond; elects to await the outcome of the TK study.
10/2014	DEA receives commissioned expert TK study on the rooibos and honeybush species, which fully supports the TK claim of the San and Khoi.
07/2015	TK study released to rooibos industry, including the conclusion that “there is no evidence to dispute the claim by the San and the Khoi people of South Africa that they are the rightful holders of traditional knowledge associated with Rooibos and Honeybush.”
09/2015	Meeting between rooibos and honeybush industry, with San, Khoi, and DEA. Rooibos industry representatives explain that rooibos is required to pass through 10-11 ‘processors,’ before proceeding to distributors and marketers. Parties agree that the negotiation process will focus on rooibos alone rather than rooibos and honeybush. The idea of capturing all rooibos production at the level of processors, namely at the narrowest part of the product cycle, was born.
12/2015	Official meeting between all stakeholders opens negotiations. The rooibos industry representatives stated that they reserved their rights on acknowledging of TK, did not accept the outcome of the TK study, and intended to fund a further study to possibly counter or oppose the TK study approved by the DEA.
02/2016	San and Khoi brief counsel in the expectations of having to take their TK claim to court. Teams prepare for litigation in the event that negotiations fail.
08/2016	DEA called a formal meeting to initiate “negotiation of benefit sharing for commercial utilisation of rooibos and its associated traditional knowledge.”
08/2016	Further meetings include representatives from Wupperthal and Nieuwoudville in the Cederberg mountains, representing the most important rooibos farming communities, who have contributed significant knowledge relevant for the commercialization process. ²⁹
11/2016	Code of conduct for negotiations agreed, including confidentiality clauses. Meetings from this point onwards explore a joint purpose rather than being expressed through pure opposition.
12/2016	Discussion of specific issues central to the agreement, such as how to include all rooibos stakeholders, whether a percentage or fixed-price levy is more appropriate, how an agreement affects intellectual property rights, etc.
02/2017	Levy model agreed. Levy to be charged at ‘farm gate price’ paid by processors of rooibos, ensuring compliance of all upstream and downstream stakeholders.
2017	Much communication takes place between meetings. Financial models, legal arrangements, and competing proposals are shared and debated in private meetings and correspondence.
05/2017	Deadlock or stalemate reached. ‘Lockdown’ meeting to ascertain financial details and consequences of different levels of TK levy. Parties not prepared or able to compromise. Appointment of mediators to resolve the deadlock.
2017-2018	Over the following two years the parties engage actively and with a growing shared belief that a benefit sharing agreement was possible. Mediation ended. DEA as facilitator remains independent and supportive of the parties.
11/2018	Agreement reached in principle that a TK levy of 1.5 percent of ‘farm gate price’ was fair and reasonable to both sides. Related legal matters required further negotiations.
03/2019	A full agreement accepted by all parties, with a private signing on March 25, 2019. Present at the signing were the Chairpersons and appointed representatives of the San, the Khoi, the Rooibos Council, and DEA.
03/2019	Five suspensive conditions were required to be met, before the agreement was final and binding under NEMBA. 1. A benefit sharing agreement in the form prescribed by the Biodiversity Act must be concluded (see last entry under 03/2019). 2. Approval of the benefit sharing agreement by the Minister. 3. A written undertaking from DEA to pay the financial cost of administering the annual TK levy together with all audited financial reports. 4. Finalization and registration of the respective trust deeds of the San Council and the National Khoi-San Council providing copies to DEA considering comments from the South African Rooibos Council (the administrative arm of the rooibos industry for this agreement). 5. A Standard Operating Procedure for collecting the TK levy agreed by the parties.
2019	The agreement was launched November, 1, 2019 at !Khwa ttu, a San cultural heritage and training center near Cape Town, by Minister Barbara Creecy.