Chinese South Africans qualify for BEE, court rules

The Pretoria High Court on Wednesday granted a landmark ruling that Chinese South Africans are to be included in the definition of “black people” in legislation designed to benefit previously disadvantaged groups.

Judge Cynthia Pretorius granted an order in terms of which Chinese South Africans are included in the definition of “black people” in the Broad-Based Economic Empowerment Act and the Employment Equity Act. Both laws cover Africans, coloureds and Indians.

None of the government departments cited as respondents in the case, brought by the Chinese Association of South Africa (Casa), opposed the application.
The departments also accepted liability to pay the legal costs.

The ruling is the culmination of an eight-year struggle by Casa to obtain clarity from the government on whether Chinese South Africans—who were classified as “coloured” during the apartheid era—qualify for the benefits in terms of the two Acts, designed to restore historical injustices in the country.

Casa’s chairperson, Patric Chong, was overjoyed at the judgement. He said the community would like to make use of this newfound freedom to create even more jobs for the unemployed.

“As Chinese South Africans we were officially classified as ‘coloured’ during the apartheid era and suffered under the same discriminatory laws prior to 1994. The logical inference was thus that Chinese South Africans would automatically qualify for the same benefits afforded to the ‘coloured’  group, post-1994.

“However, this was not the case and Chinese South Africans have suffered a second round of unfair discrimination by not being sure of their status under the two Acts,” he said.

Casa’s lawyer, George van Niekerk, said that justice had now been served for Chinese South Africans—one of the country’s most politically marginalised communities.

He said although the two Acts did not specifically exclude Chinese South Africans, the fact that they were not mentioned by name led to a lot of confusion in the marketplace.

“For example, one commercial bank would, given the historical considerations, classify Chinese South Africans as ‘black’ for the purposes of the Employment Equity Act and the Broad-Based Black Economic Empowerment Act, whereas another commercial bank declined to do so. The net result was that Chinese South Africans were never sure of their status,” he said.

Casa has attempted to get a definitive answer from the South African government for the past eight years, even making formal representations to Parliament’s labour portfolio committee in 2004, but when repeated letters and enquiries received no response, it had no other option but to turn to the court for clarity.

Although the ministers of trade and industry, labour, and justice and constitutional development initially filed a notice to oppose Casa’s application, they eventually conceded the merits of the case in April this year.

Well-known human rights lawyer George Bizos, SC, represented Casa in court.—Sapa

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