Artwork courtesy H3 Legal Solutions
South Africa’s cannabis debate has moved quickly in recent years, but it has done so within a narrow frame.
The focus has largely been on licensing, compliance, and market entry, while a more fundamental issue remains unresolved: the status of the plant’s underlying genetics.
At the centre of this issue is a term that is widely used but rarely examined in legal terms—landrace. In South Africa, a cannabis landrace is not a commercial strain or a uniform variety. It is a locally evolved plant population shaped by its environment and by the communities who cultivate it. These plants are not the result of formal breeding systems. Instead, they emerge through repetition: season after season of seed selection, adaptation to soil and climate, and the steady transfer of knowledge across generations.
Landraces are Distinct Yet Not Genetically Uniform and Exist in a Legal Vacuum
The result is a plant that is both geographically rooted and biologically distinct, yet not genetically uniform. Unlike commercial cultivars engineered for consistency, landraces retain internal variation. This variation is not a flaw; it is what allows them to survive under changing and often harsh conditions. In regions such as the Eastern Cape, KwaZulu-Natal, Limpopo, and Mpumalanga, these plant populations form part of a living agricultural system, tied to subsistence, informal trade, and traditional use. Their development cannot be separated from the communities that have sustained them.
Despite this, landraces do not fit comfortably within existing legal categories. They are not “new” in the sense required by intellectual property law, nor are they owned in a conventional commercial sense. They are also not formally recorded within national genetic systems. This creates a clear legal vacuum.
South African law recognises plant varieties that can be stabilised, registered, and commercialised, and it recognises biodiversity as a national resource. Between these systems, however, lies a category that is widely used but rarely protected: community-developed genetic material. This gap ultimately determines who controls value in the emerging cannabis economy.
Treat Cannabis as a Biological Asset in Order to Manage its Legacy
Once cannabis is treated as a biological asset, it falls within biodiversity governance. Seeds, tissue, and derived cultivars become genetic resources with potential for research, commercialisation, and export. South African law already regulates access to such biological resources through bioprospecting and access-and-benefit-sharing frameworks. The issue is not the absence of law, but the failure to apply it consistently to cannabis. Plant material that should trigger permitting, disclosure, and benefit-sharing continues to move informally, outside the systems designed to protect national biological assets.
This exposes a deeper structural mismatch. Intellectual property systems reward identifiable innovation. Plant breeders’ rights depend on varieties being distinct, uniform, and stable criteria that landraces were never designed to meet. Their value lies in adaptation and variability, not standardisation. As a result, the law protects the final, stabilised product but not the genetic base from which it is derived. Once a landrace is refined into a uniform cultivar, it can be registered and owned, often by parties far removed from its origin, while the source population remains legally invisible.
Where genetic resources are not documented or controlled, they inevitably move. Seeds are collected, exported, stabilised, and reintroduced into global markets as proprietary products. By the time they return in commercial form, their origins are often obscured. What began as a community-maintained resource becomes a branded commodity owned elsewhere. This pattern is well established in agriculture, and in cannabis, the pace of global expansion only increases the risk that South African genetics will be absorbed into international systems without return.
Rooibos Tea Developed a Community Benefit Model, The Same Could Apply to Cannabis
There is, however, a working model. South Africa’s rooibos benefit-sharing agreement demonstrated that traditional knowledge and plant heritage can be recognised within an existing legal framework. It showed that commercial industries can operate alongside obligations to source communities. Its significance lies in its practicality: it did not require a new legal system, only coordination, recognition, and enforcement. Cannabis presents the same opportunity, though without intervention, it is likely to follow a different path.
Genetic sovereignty, in practice, depends on three interrelated elements: documentation, control, and participation. Documentation establishes origin. Control regulates access. Participation ensures that communities are recognised in decision-making and benefit-sharing. Without these, sovereignty remains an abstract principle with no practical effect.
Cannabis did not enter South Africa as a regulated commodity. It moved through trade and migration routes and became embedded in local agricultural systems. Over time, it was cultivated, selected, and adapted to both environmental conditions and human need. This process produced region-specific plant populations what we now refer to as landraces. These are living systems shaped through continuity, and that history places their development within identifiable communities and landscapes.
Today, South African cannabis genetics circulate globally under names that signal their origin, Durban Poison, Swazi Gold, Pondoland Red. These names carry geographic meaning and reflect real cultivation histories. What has not followed is legal recognition. As these genetics entered global markets, they were stabilised, replicated, and commercialised, with the resulting value accumulating elsewhere. The identity remains, but the entitlement does not.
Landrace cannabis does not emerge from isolated acts of invention. It is the result of custodianship, where knowledge is carried forward, refined, and shared across generations. Value accumulates through continuity rather than a single moment of creation. The absence of an identifiable inventor does not mean there is no ownership; it reflects a different model of ownership—one grounded in stewardship.
The tension is structural. On one side stands a legal system based on individual ownership, registration, and novelty. On the other stands communal custodianship, where rights arise through continuity, use, and intergenerational practice. Cannabis landraces belong to the latter. When a purely individualised intellectual property framework is applied, the outcome is predictable: the system recognises the final product but not the process that created it.
Landraces are a Cultural Inheritance that Should be Protected for Future Generations
Current policy has prioritised licensing, compliance, and market access. These are necessary steps, but they do not address genetic control. If this remains unaddressed, the trajectory is clear. Genetic material will continue to move, value will continue to shift away from its origin, and control will follow. What begins as a gap will become the system itself.
The tools to address this already exist within South African law, including biodiversity regulation, access-and-benefit-sharing frameworks, indigenous knowledge protection, and agricultural statutes. What is missing is alignment. Cannabis genetics must be brought within these systems through formal documentation, regulated access, and the recognition of community custodianship. This is not a legislative problem as much as it is a coordination problem.
At its core, the issue is not ownership in a narrow sense, but origin, control, and value. Cannabis landraces form part of South Africa’s agricultural and cultural inheritance. They exist because communities have sustained them over time. Without a clear legal position, that inheritance remains exposed. Until this is addressed, cannabis reform in South Africa will remain incomplete.
Charl Botha is a legal strategist with a B.Proc degree, cannabis policy specialist, and co – founder of H3 Legal Solutions (Pty) Ltd. He has briefed Parliament and writes on the practical alignment of constitutional rights, industrial policy, and responsible cannabis commercialisation in South Africa.
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