Thirteen years ago on April 27, South Africa was voting for democracy. Interestingly, a debate 13 years later about who was disadvantaged by the apartheid legislation is taking place.
This specifically relates to the question of whether Chinese people should be included as beneficiaries of black economic employment (BEE) and employment equity. Let's unpack this debate.
The gazetted BEE codes define black people as natural people who are African, coloured or Indian and who are citizens of South Africa. Citizenship must be acquired through birth, descent or naturalisation. On naturalisation, the people must have met all the qualification criteria that would entitle them to be citizens before April 27 1994.
This definition of black people is a mechanism to determine who should benefit from BEE initiatives.
In order to determine whether Chinese people meet the definition of black as outlined in the codes, one has to look at the apartheid laws to see how they were treated.
Prior to 1984, laws such as the Population Registration Act, the Group Areas Act and the Prohibition of Mixed Marriages Act placed Chinese people in the same category as coloured people.
There were limitations against the Chinese upon franchise contained in the Republic of South Africa Constitution Act as well as a host of other legislation.
Post-1984, with the promulgation of the Group Areas Amendment Act, Chinese people were no longer subject to the unfair discrimination contemplated under the Group Areas Act.
But the unfair discrimination against Chinese people in terms of the Population Registration Act, the Republic of South Africa Constitution Act and all other discriminatory legislation applicable to "coloured persons" and "Indians" remained in place until the repeal of that legislation in the early 1990s.
Accordingly, it is submitted that the status of Chinese people in South Africa following 1984 differed from that of coloured people and Indian people, only to the extent that they were exempted from the provisions of the Group Areas Act. On this basis, there seems to be a compelling argument of legal discrimination against Chinese people.
The other side of the debate that argues for the non-recognition of Chinese people as the beneficiaries of BEE stems from a political standpoint. The first question raised is what was the level of participation by Chinese people in the struggle against apartheid?
There are African, Indian and coloured icons that easily come to mind when one thinks of the struggle, but it is difficult to think of any Chinese struggle icons.
Thus, there is a view that if Chinese people did not fight against apartheid, they should not benefit from the fruits of the fights against apartheid. If they did contribute to the struggle, then the proponents of this view would like it to be documented so that people are informed.
The second point raised relates to the violation of labour laws in the sweat shops of KwaZulu-Natal, especially against African people. This has created some negative sentiments in other people.
On both sides of the debate there are interesting arguments.
The legal argument may be argued in court and there is more compelling evidence in terms of the apartheid legislation of the past.
The definition of black people in the codes used the parameter of legal discrimination of race to determine the beneficiaries of BEE, and not gender or disability. This strengthens the legal view in the debate.
But one must not lose sight of the political view. The local Chinese community must heed the concerns of their perceived lack of participation in the politics and the socioeconomic structures of South Africa.
It is an incomprehensible proposition to seek recognition as a beneficiary of BEE and yet remain insular and aloof when it comes to active engagement in the critical spheres of the South African society.
My advice to firms is to identify Chinese people who may meet the definition of black people and only recognise them in their BEE scorecard once clarity on the issue is provided by the courts or by the government. That way their BEE score could either remain the same, or be upgraded, if there is recognition of Chinese people. There won't be any downgrading of score if there is non-recognition.