The potential spread of phytophtora palmovira (bud rot) from infested areas through host material to other areas may negatively affect South Africa’s domestic and international trade, says law firm Cliffe Dekker Hofmeyr.

This caution comes in the wake of bud rot being identified in commercial papaya orchards, in the Limpopo and Mpumalanga provinces.

Bud rot is a type of mould that affects plants, particularly during the flowering stage, and is caused by a fungus that thrives in environments with high humidity and poor air ventilation.

These circumstances promote the development of the fungus which, once developed, obstructs the proper transportation of water and nutrients through the leaves and flowers, thereby affecting, for example, strawberries, grapes, cannabis plants and cacao trees.

The firm also highlights that this may have a negative effect on the export potential of relevant host communities, especially for exports from South Africa to those countries where it is recognised as a quarantine pest.

Cliffe Dekker Hofmeyr dispute resolution director Lucinde Rhoodie notes that the import and export of fruit is highly regulated and that importing countries have very specific phytosanitary conditions, which are important factors that South Africa’s agricultural sector must consider in dealing with the scourge of bud rot.

“Each country has its own phytosanitary requirements and permits will be issued by the exporting country’s National Plant Protection Organisation (NPPO) to the importing country’s NPPO,” Rhoodie notes.

She adds that Botswana and Namibia have suspended the import of papayas until South Africa can provide sufficient proof that the bud rot is under control.

This pest can be managed by practising the effective control of cultures, using resistant varieties and chemical control, as well as the constant monitoring and regulation of the removal of host material from quarantine (infested) to non-quarantine (non-infested) areas, Rhoodie explains.

Legal Risks, Potential Liability Claims

Cliffe Dekker Hofmeyr dispute resolution senior associate Liëtte van Schalkwyk highlights that the regulatory risks associated with this pest include noncompliance with legislation pertaining to the standard of fruit in commercial farming for export purposes, and the potential non-issuing of phytosanitary certificates, which are necessary for farmers to export their products.

“In the event of noncompliance, these permits will not be issued and, until such time, fruits will not be imported and/or exported,” she explains.

The commercial risks include a ban on the import of fruit which, in turn, could have an adverse ripple effect on consumers, employment on commercial farms, supply to the fruit industry and commercial farms’ reputations.

Consequently, a ban could have a significant financial and commercial impact on the fruit industry.

Rhoodie explains that farmers will face not only potential damages claims if they fail to disclose the presence of bud rot in their orchards but potentially also sanctions in terms of the Agricultural Pest Act.

“In terms of the Plant Health Bill, a first offender failing to inform the Department of Agriculture, Land Reform and Rural Development of a possible plague outbreak will be liable to a fine or imprisonment of not more than 18 months, and in the event that a farmer fails to adhere to the phytosanitary measures imposed, the farmer will be liable for a fine, five years imprisonment, or both.”

Rhoodie adds that, from a civil and contractual perspective, “commercial farmers who either fail to disclose the existence of bud rot to customers or supply fruit infested with bud rot could face contractual claims for penalties (if provided for in contracts with customers) or damages based on a breach of the contractual claims”.

Farmers and community members are encouraged to practice effective cultural control and not to move host materials from infested areas to non-infested areas without authorisation. International travellers are advised to avoid the illegal importation of agricultural commodities into South Africa, as this may lead to the introduction of new pests and diseases that are expensive and difficult to manage, she concludes.