Wimsa Report on Activities 2002/03

San Rights vis-à-vis the Hoodia Succulent

The South African San Council supported by their legal advisor, Roger Chennells, held several rounds of negotiations with South Africa’s Council for Scientific and Industrial Research (CSIR) after having been informed in 2001 that the CSIR had patented the active ingredient of the Hoodia gordonii succulent as an appetite suppressant and passed the findings of its tests on to the companies Phytopharm in the UK and Pfizer in the USA. The first round of negotiations resulted in the signing of a memorandum of understanding between the CSIR and the South African San Council (acting on behalf of WIMSA) in March 2002. In this memorandum the CSIR acknowledges the San’s prior intellectual property rights to the Hoodia as an appetite suppressant. The second round of negotiations commenced with a workshop on benefit-sharing options and strategies, attended by the South African San Council, representatives of WIMSA, SASI, the Department of Science and Technology and the CSIR, and a few specialists in the field of indigenous traditional knowledge.

 


Facilitator Chris Spies listening to input from
Joram |Useb of WIMSA in the Hoodia benefit-sharing
workshop in June 2002.


Participants in the Hoodia
benefit-sharing workshop.

.

The workshop was followed by a series of meetings between representatives of the San Council and the CSIR which led to draft agreements and eventually to the final version of a benefit-sharing agreement.

“Bushmen squeeze money from a humble cactus”(10) was one of the numerous headlines of media reports that flooded the world after the celebration of the signing of the benefit-sharing agreement between the San and the CSIR at Molopo Lodge in the southern Kalahari, South Africa. The agreement was signed by CSIR President Sibusiso Sibisi and Chairperson of the South African San Council Petrus Vaalbooi. South African Minister of Arts, Culture, Science and Technology Ben Ngubane and WIMSA Chairperson Kxao Moses ‡Oma signed the agreement as witnesses.

The press release issued jointly by the San Council (WIMSA’s South African chapter) and the CSIR explained the terms of the agreement as follows:

”… the CSIR will pay the San eight percent of all milestone payments it receives from its licensee, UK-based Phytopharm plc, as well as six percent of all royalties that the CSIR receives once the drug is commercially available. Milestone payments are subject to agreed technical performance targets of P57 during its clinical development over the next three to four years, and royalties are based on sales which are not set to commence before 2008. This benefit-sharing model ensures that the San will receive equitable benefits if the drug is successfully commercialised, and is based on established international benefit-sharing models for the pharmaceutical industry. Factors such as the size of the global anti-obesity market and the percentage of total market that the potential new drug could capture, are typically factors which determine the translation of the royalty percentage into monetary value.”

The agreement states that the income received will be paid to the San Hoodia Benefit Sharing Trust to be formed by the South African Council, which as WIMSA’s affiliate represents not only the South African San communities but all San communities in the region. It was agreed that the trust should consist of three South African San Council representatives appointed by the council, three representatives of other San stakeholders in the region appointed by WIMSA, a South African professional appointed by the San Council and approved by WIMSA, a representative of WIMSA, a CSIR representative appointed by the CSIR or its nominee, and a non-voting observer appointed by the Department of Science and Technology or its nominee.

In accordance with the San aspirations as expressed by the WIMSA General Assembly, the agreement stipulates as the trust’s aims and objectives the following, among others:

“... to use income received from the CSIR for the general upliftment, material advancement, development, education and training of the San community; … to support projects and institutions dedicated to advancing research into, and protection of, the traditional knowledge and heritage of the San peoples; ... and to ensure that the benefits paid to the San in accordance with this Trust Deed are shared in accordance with the highest degree of diligence, transparency and equity.”


Ben Ngubane, South Africa’s Minister of Arts, Culture, Science and Technology, eating a piece of Hoodia stem during the benefit-sharing agreement celebrations.


Petrus Vaalbooi, Chairperson of the South African San Council, addressing the guests at the benefit-sharing celebrations.


This historic event, being the culmination of two years of tough negotiation between the San assisted by Roger Chennells and the CSIR, captured worldwide attention. Articles appeared in well-known newspapers such as The Mail & Guardian, The New York Times and Süddeutsche Zeitung, and specialist journals, donor magazines, the BBC and the German TV programme ZDF reflected on the achievement. Most shared the San’s enthusiasm and noted that the agreement had set important international precedents.(11). Only some reports were marred by the minor error of referring to the Hoodia succulent as a “cactus”, and by negative remarks concerning, in one reporter’s words, “a critical problem [that] arises with the patenting and privatisation of knowledge”.(12)		  


Kxao Moses ‡Oma speaking at the celebrations.

 “The international interest that the agreement between the San and the CSIR has aroused has helped the San umbrella body, WIMSA, to raise awareness of the need to protect and control San intellectual property. We hope that commercial concerns will soon follow the CSIR example and stop using images of San in their adverts without our prior consent and without ensuring that we also benefit, financially or otherwise.”

– Kxao Moses ‡Oma, Chairperson of the WIMSA board, in closing his speech titled
“Celebrating the fruits of San traditional knowledge: The Hoodia plant”.
       
FOOTNOTES:
10 G. Thompson, “Bushmen squeeze money from a humble cactus”, in The New York Times, 1 April 2003.
11 With the agreement of WIMSA and the South African San Council, First Peoples Worldwide commissioned David J. Stephenson Jr to undertake a case study that “seeks to shed light on how the private sector and investment communities can impact indigenous peoples – both negatively and positively”. The case study titled “The Patenting of P57 and the Intellectual Property Rights of the San Peoples of Southern Africa “… was undertaken in order to analyze and enrich the understanding of the dynamics behind the research, development, and licensing of an appetite suppressant made from a patented bioactive compound derived from the Hoodia plant …”.
12 Rachel Wynberg, “Comment: Sharing the crumbs with the San”, in The Mail & Guardian – Monitor, 4-10 April 2003, p. 38.

   


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