Bud rot, also known as “grey mould”, is a type of fungus that thrives in environments with high humidity and poor air circulation and usually affects cannabis plants during the flowering stage (hence its colloquial name). Once the mould has developed, it obstructs the proper transportation of water and nutrients through the leaves and flowers, thereby killing the plant. Ingestion of plants or plant products infected with bud rot is harmful to humans.

The discovery of bud rot continues to pose a particular challenge to South Africa’s agriculture sector, as the National Plant Protection Organisation of South Africa confirmed the detection of bud rot in commercial papaya orchards in Mpumalanga and Limpopo as early as August 2024.

The Department confirmed that hundreds of plant species, including horticultural, ornamental and agricultural crops, have since been infected by bud rot. Agricultural host crops include papaya, pineapple, citrus, black pepper, cocoa and coconut. As the world’s second-largest exporter of citrus, farmers’ (in)ability to export their produce may have worrying ramifications. For example, if there is a reduction in exports, there will be an excess supply in South Africa, which will likely force down the local prices farmers can fetch for their produce. In fact, the Department has advised that the spread of bud rot through host material to other areas may negatively affect domestic and international trade, as well as the export potential of relevant host commodities to various countries where it is recognised as a quarantine pest. Thus, farmers and agriculture businesses must understand their responsibilities during the spread, and the precautions which should be followed.

While the Department continues to conduct delimiting surveys in all production areas to determine the extent of the spread, farmers should exercise caution when moving plants in order to stop the spread. Bud rot can be managed by practicing effective cultural control, use of resistant varieties, chemical control, constant monitoring, and regulation of the removal of host material from infested to non-infested areas.

Legal risks amidst spread of bud rot in commercial farms

Farmers face both legal and regulatory risks during this time. From a regulatory perspective, farmers should be cognisant of their permits to ensure that no actions or omissions regarding the treatment and prevention of bud rot contravenes any of their permit conditions, nor the legislation or regulations thereunder.

Contravention of the relevant legislation, by, for instance, failing to disclose the existence of bud rot to the Department, could lead to the imposition of fines or even imprisonment. This is because the sale, import and export of agricultural products – such as papayas – are heavily legislated. For instance, the Plant Improvement Act 53 of 1976 regulates the sale, certification and import/export of certain plants and propagating material in South Africa, as well as the registration of establishments permitted to sell, cleanse and pack such material. It also provides for the recognition of plant varieties and control of agricultural and industrial products.

Additionally, the Agricultural Pests Act 36 of 1983, read with Control Measures Regulation 110, provides measures by which agricultural pests may be prevented and combatted, namely by prohibiting/restricting the removal and movement of host material from affected areas to non-affected areas in the rest of the country, to prevent the further spread of the pest to other provinces. Any contravention of this act or its regulations is an offence and farmers may be liable for certain penalties, including fines or imprisonment.

Potential liability claims against farmers

In addition to being exporters of fruit or plants, farmers often sell to third parties (i.e. retailers or individuals). Thus, there are potential civil liability claims that farmers may face from parties purchasing products infested with bud rot.

There are a number of examples: if a farmer knows that their products have bud rot and fails to disclose that to a purchaser, that omission is a misrepresentation, which could expose the farmer to a damages claim by the purchaser.

Similarly, if a farmer delivers defective/damaged products – as a result of bud rot – such conduct may constitute a breach by the farmer of their sale/supply agreement with third parties, risking (i) termination of the agreement; (ii) contractual penalties, if provided for in the agreement; and (iii) potential damages claims.

If a farmer sells to members of the public, certain provisions of the Consumer Protection Act 68 of 2008 may be applicable, including a consumer’s right to safe, good quality goods, and the implied warranty of quality by the seller to the consumer (sections 55 and 56). Section 61 provides that a producer/retailer of any goods is liable for any harm caused wholly or partly as a consequence of supplying any unsafe goods, irrespective of whether the harm resulted from any negligence on the part of the producer/retailer. This is significant as it relieves the consumer of the onerous burden of proving fault, although the consumer must still prove that the product had some kind of flaw that made it unsafe. This would be self-evident in the case of the sale of plants infected with bud rot. Farmers are therefore at risk of complaints being laid against them at the relevant industry ombud, consumer court or the National Consumer Commission.

Impact on agricultural trade: Export regulations from key markets

Upon discovery of bud rot, South Africa complied with its obligation as a member of the International Plant Protection Convention (IPCC) by notifying trading partners and the IPCC of the outbreak, and the impact has been felt as Botswana and Namibia have temporarily suspended imports of certain commodities from South Africa. It is anticipated that there will continue to be increased scrutiny by other international markets until the spread is effectively curbed. 

Additionally, to export plants and plant products, farmers must have a phytosanitary permit issued by the National Plant Protection Organization of the importing country. Thus, farmers must – in order to ensure the import requirements are met – determine such phytosanitary import conditions of the importing country applicable to the plants/products they export.

In conclusion, farmers are advised to keep abreast of all additional notices and regulations published by the Department during the outbreak, and to ensure they comply fully with all relevant legislation, regulations and directives in order to shield themselves from liability.