Chinese locals are black
June 19, 2008
By Ufrieda Ho
Pretoria - Chinese South Africans are black: the Pretoria high court says so. Yesterday's landmark ruling means that after almost nine years of futile engagement with the government, the Chinese finally know where they stand.
Representatives of the departments of labour, trade and industry, and justice and constitutional development were not in court to hear the ruling.
In January the government conceded the issue in writing to the Chinese community.
But yesterday's ruling now makes it official that Chinese who were citizens before 1994 are defined as black and qualify for full benefits in terms of the country's employment equity and black economic empowerment (BEE) legislation.
The Chinese Association of SA (Casa), a non-political community organisation, took up the court action after discussions with the government and a formal representation to parliament's labour portfolio committee in 2004 led to a dead end.
Jubilant Casa chairman Patrick Chong hugged and congratulated members of the community and supporters after the judgment was read out.
He said: "The community's struggle has not been about economic opportunism, but about lack of recognition and clearing up the misconceptions of the historical injustices the South African Chinese faced."
He said the ruling recognised the need for "human dignity for the Chinese people, who didn't fit in under apartheid ... or after 1994".
Chong said the court action was not aimed at gaining wealth through BEE deals. "We took up this action way before BEE was legislated in 2004."
The confusion over the racial classification of Chinese South Africans led companies including Standard Bank and Sasol to exclude them from corporate empowerment schemes.
Sasol's multibillion-rand empowerment deal, Inzalo, states under the heading Who is Not Black: "South African citizens who were regarded as coloured before April 27 1994 but are of Chinese origin."
Standard Bank employee Vernon Whyte, who is a Chinese South African, brought a grievance against the bank when he was excluded from a BEE share scheme in 2004/05. The matter went to the Commission for Conciliation, Mediation and Arbitration and became tied up in a legal wrangle.
Whyte said Standard Bank's move "was a slight against me and every Chinese person. That's why I decided I wasn't going to keep quiet."
But yesterday he was hopeful this issue could finally be laid to rest. "The ruling means there's an understanding that Chinese were discriminated against ... We are the yellow in the national flag."
University of Pretoria history professor Karen Harris said the judgment was a milestone. "The first discriminatory law in the country that was passed was the Chinese Exclusion Act in 1904", which "prohibited the entry of new Chinese to the colony and restricted and monitored [their] movement".
At the same time, indentured labourers in the Transvaal were subject to the Labour Importation Ordinance of 1904.
The Chinese labourers were restricted to life on compounds, allowed to do only unskilled labour and excluded from 55 types of job.
Analysts were divided about whether the ruling would herald a rush by Chinese South Africans to exploit empowerment opportunities.
Eric Ackroyd, the executive director of Empowerlogic, said: "Chinese South Africans are going to get into the business space and become eligible parties in these transactions.
"But I do not think their presence would dilute the opportunities" because there were not that many of them.
"They are, however, going to have a huge impact in small and medium enterprises, because this is what they have been involved in for years in this country," said Ackroyd.
Vuyo Jack, the executive chairman of Empowerdex, said the only Chinese people to benefit from BEE deals would be those who were naturalised before 1994 - fewer than 10 000 people. "This basically means that they are not going to crowd out those who are currently supposed to benefit from these deals," he said.
With additional reporting by Mzwandile Jacks
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