After years of waging a low-key campaign to be recognised as black under South Africa’s laws of redress, local Chinese are squaring up to the government in the High Court.
The Chinese Association of South Africa (Casa) wants to seek a declaratory order for South African Chinese to be treated as coloured and benefit from the Employment Equity Act and the Broad-Based Black Economic Empowerment Act.
Failing that, they will ask the court to declare the definition of ”black” in the two laws unconstitutional because it excludes local Chinese.
The government has been deeply reluctant to clarify whether the Chinese are included in the definition of ”black” — African, coloured and Indian — under the legislation.
In a recent letter to the human resources manager of a large firm, the labour department said: ”We … confirm that individuals of Chinese descent are not designated and should not be included in the Employment Equity Report as a subgroup of coloureds. We further confirm that these individuals should be reflected as ‘white’ in terms of employment equity, especially if they are citizens of the country.” This contradicts earlier unofficial statements.
Attorney George van Niekerk of Edward Nathan Sonnenbergs attorneys in Cape Town, who acts for Casa in its dispute with the departments of labour, justice and trade and industry, confirmed that human rights advocate George Bizos and constitutional law advocate Alfred Cockrell would appear in court on Casa’s behalf
Van Niekerk said: ”We first wrote to the three ministers in June. Initially they requested more time to consider the matter, but they subsequently indicated that they were not ready to respond. In light of this obdurate attitude, we are finalising papers, and the application will be launched early in the new year.
”The history of legislative and opportunistic discrimination against people of Chinese origin in this country is extensive, and it intruded on all facets of their lives. It seems extraordinary that their suffering over decades should be disregarded now.”
The Chinese could not vote before 1994. Variously classified as coloured and ”non-white”, they were excluded from public facilities, banned from entering certain areas, and subjected to job and educational restrictions and forced removals.
Chinese were exempted from the Group Areas Act after 1984. However, they remained at the mercy of neighbours and the minister, who could withdraw permission at any time.
Historians Melanie Yap and Dianne Man describe the community of between 10 000 and 20 000 as ”one of the smallest and most identifiable minority groups in arguably the most race-conscious country in the world. Too miniscule in number to warrant any serious … attention … [they are] unknown and largely forgotten.”
Casa’s Patrick Chong said his organisation took up the campaign when Chinese employees started differing with their employers over their classification under the Employment Equity Act, and whether they were entitled to affirmative promotion. ”We had meeting upon meeting with the department of labour,” said Chong, ”but they refused to give an official interpretation of the Act.”
After the broad-based BEE was enacted, Casa wrote to the department of trade and industry seeking clarification on the status of the Chinese. ”No answer, no response, nothing,” he said.
Chong said he confronted department officials at a public launch of the BEE codes and was told the question was ”difficult, because there is the sense that the Chinese were, maybe not, as discriminated against as coloureds and blacks”.
South African Chinese have been expressly excluded from empowerment schemes by corporations such as Standard Bank, while they were also cut out of Naspers’s Phuthuma Nathi BEE share offer. Other groups, including Nedcor and FirstRand, now regard South African Chinese as black.
Legal opinion given to various firms, including BEE ratings agency Empowerdex, is that South African Chinese should be regarded as black.
Darryl Accone, author of All Under Heaven: The Story of a Chinese Family in South Africa, remarked that the underlying problem was one of perceptions. ”People imagine the Chinese were somehow white or honorary whites … a confusion with the Japanese, who did have honorary white status.
”But the government has no excuse — they know the Chinese were classified [under apartheid] as either non-European or non-white.”
Also shaping perceptions was the influx of wealthy Taiwanese, who the apartheid government tried to woo. Today, immigrant Chinese outnumber locally born Chinese 10 to one, said Casa member Vernon Whyte.
Global hype around Chinese economic power may have fuelled perceptions of universal affluence. And BEE officials may have been influenced by the economic empowerment policy of Malaysia, where Chinese are economically dominant.
However, Accone said South African Chinese ”might now be reasonably well off, but that was not the case in the past — they struggled to attain whatever position they’ve got to”.
Observers point out that if South Africa’s BEE policy was based on wealth, many current beneficiaries would be disqualified.
In an interview, the head of BEE at FNB, Bobby Madhav, bore out the confusion: ”From an FNB point of view, by no means do we classify a Chinese as disadvantaged, because … prior to 1994, they had the open opportunities of business, opportunities of living where they could … I think the stance that I would take is I don’t see them as a disadvantaged community.”
Madhav later came back to confirm that FNB did regard South African Chinese as previously disadvantaged.
Sociologist Yoon Park insisted that many second-generation Chinese, especially those over 60, believed the Chinese were entitled to affirmative consideration for jobs, training and contracts.
Most Chinese in this age group were retired or continued to work as shopkeepers, and so were not directly affected by employment equity or BEE. ”Nevertheless, these matters are important to them; they are seen as matters of equality … inclusion in affirmative action laws are also critical to affirming their history in South Africa.
”Perhaps they were not the most oppressed during apartheid, but they too have their stories of exclusion, discrimination and humiliation.”
The department of trade and industry did not respond to requests for comment.
‘From a slap in the face to an even bigger slap’
Standard Bank is trying to ”hide behind the skirts of the [finance sector charter] council” by refusing to allow Chinese South Africans to participate in its black economic empowerment schemes, charges Vernon Whyte, a Chinese South African employee of the bank.
Whyte launched a dispute when Standard Bank refused his application to participate in the first phase of the bank’s Tutuwa empowerment share offer to previously disadvantaged managers.
As a result of the dispute, currently at the Labour Court after a spell in the Equality Court, the council was ordered to clarify its position. In June, it declared that each financial institution should decide for itself until the government or the Constitutional Court interprets the Employment Equity Act and the Broad-Based BEE Act.
But last month, in a letter inviting its black managers to join a further phase of the Tutuwa share offer, the bank said: ”The Charter Council has advised that this definition excludes people of Chinese origin.”
Whyte, classified as coloured under apartheid when he started working for the bank’s IT division 25 years ago, remarked tartly: ”So, basically, from one slap [in the face] to an even bigger slap.”
Answering questions from the Mail & Guardian, Standard Bank said this week: ”The Tutuwa scheme does not include or exclude employees of Chinese descent; the scheme includes all people who may be regarded as ‘black’ depending on how that term may be restated or redefined by the Financial Sector Council … Standard Bank must await the court’s decision to obtain legal certainty.”
Earlier, Standard Bank financial director Simon Ridley said the bank was ”not aggressive” in its stance. It had offered to pay Whyte’s legal costs but he had declined. Whyte denied this.
Said Ridley: ”We’ve reserved shares … should the court rule that employees of Chinese descent would be included and then we would allocate [the shares].”
The trade and industry department has applied to join the dispute, asking the Labour Court to dismiss Whyte’s complaint as a matter to be decided in the high court.
The department’s application hints that Chinese South Africans should be excluded. ”It is clear that [Standard Bank] has implemented the Tutuwa Scheme and Share Scheme in pursuit of achieving the objects of the [Broad-Based BEE] Act in formulating the initiatives consistent with and in compliance with the Charter as determined by the [Financial Sector Charter],” it says.
Asked if the dispute had damaged his career, Whyte said: ”Most definitely. But I made the decision that if I didn’t stand up, it would be detrimental to my offspring and the offspring of all Chinese South Africans.”