Chinese have trod murky path as 'non-people'

Published Jun 21, 2008


By Justine Gerardy

Democracy came with a soft handshake for South Africa's Chinese. It brought the vote for the first time. And it guaranteed freedom of movement and access to government services.

But liberation was also selectively forgetful. South Africa's small minority of ethnic Chinese citizens - once classified as non-white by the apartheid government - were overlooked in the laws meant to redress past injustices.

Africans were on the list, as were Indians and coloureds. But the Employment Equity (EE) and Broad-Based Black Economic Empowerment (BBBEE) Acts did not mention the Chinese.

They were excluded from the generic definition of "black people" - the previously disadvantaged people the laws aimed to assist.

That changed this week when the Pretoria high court ruled that Chinese South Africans were once again to be deemed non-white when it came to empowerment benefits.

The Chinese have faced a murky race-based relay since arriving in South Africa in the late 1600s. They have been Asiatic, non-white, coloured, and Chinese coloured, but never white or black.

Even ANC president Oliver Tambo included the Chinese and other Asians - excluding the Japanese - in the apartheid government's definition of "non-people" in a paper delivered in London in 1964.

After 1994, the group were still on the sidelines of the country's new legislation and its trailblazing EE Act in 1999.

The same "black" beneficiaries' definition - African, coloured, Indian - was used in the BBBEE Act implemented in 2004.

Willem van der Colff of Edward Nathan Sonnenbergs - attorneys for the Chinese Association of SA (Casa), who the court ruled for - said a loophole was created after the Chinese were not named in the acts despite being classified as coloured during apartheid.

The government also later went on record as saying Chinese South Africans were not included in the definition of black beneficiaries.

As far back as 2000, Casa had started engaging the government to find clarity on the status of Chinese South Africans.

In 2004, it made four formal representations to parliament's labour portfolio committee.

Two years ago, Edward Nathan Sonnenbergs wrote to the ministers of Labour, Trade and Industry, and Justice and Constitutional Development to again seek clarity.

With no adequate response forthcoming, a high court application was launched last December citing all three as respondents.

Wednesday's court ruling was a landmark judgment that ended an eight-year battle for recognition. Not only did the government not oppose the matter, it footed the bill.

The media celebrated the judgment with catchy headlines. "In South Africa, Chinese is the New Black"; "Chinese black like me"; and the rather demographically confused "Court rules Chinese in South Africa are minority, Like blacks".

However, Van der Colff clarified that Chinese South Africans were now regarded as "black" only under the acts which used the term to define empowerment beneficiaries.

"It's actually a bit misleading - black is for the purposes of the acts, the same as coloureds are defined black for the purposes of the acts," he said.

Reaction has been mixed.

Freedom Front youth leader Cornelius Jansen van Rensburg said this week: "A rich person immigrating from China will enjoy more privileges than a poor Afrikaner whose forefathers have lived here for over 300 years."

But the ruling applies only to those of ethnic Chinese descent who were citizens before 1994, a group said to number a mere 10 000 people.

Confusion, misconception and conflation has dogged public and official perception of Chinese South Africans, said Professor Karen Harris of the University of Pretoria's Department of History.

"The Chinese have been part and parcel of this country since the 1600s and their situation has really been one of being in an untenable place. According to the law books, they were classified as coloured, and coloured was non-white. The facts are there plain and clear and that's why the government could not contest it."

The misconception that the Chinese had benefited under apartheid was skewed by the "honorary white" status conferred on the Japanese in South Africa.

While not an official policy, it was an economic decision based on booming trade with Tokyo.

This was further dogged by strong ties with Taiwan - one of the few countries that officially recognised the pariah state.

The fact that even apartheid's foot-soldiers were unable to distinguish between people of different Asian descent - whether trade allies or second-class citizens - meant that the situation became more untenable.

By 1950, segregation on colour lines was clinically in place in South Africa. Mixed marriages or relationships were illegal and the Group Areas Act had separated different groups into specific areas.

And the Population Registration Act had classified South Africans into three major categories. These were the coloured (not white or native); the native (a member of an aboriginal race or African tribe); and the white (specified to exclude a person who could look white, but was accepted as coloured).

By 1959, the baffling logic of apartheid's obsession with precise race groups had further refined the definition "coloured person" to include seven sub-categories.

The "Chinese" were named among the "Cape coloured", "Malay", "Griqua" and "Indian" - with any hazy areas covered by the far-reaching totality of "Other Asiatic" and "Other coloured".

In 1984, the Group Areas Amendment Act meant that the Chinese were no longer subject to the full discrimination of the act.

But, added Harris, they had to get permission right down to the neighbours. "It was always: 'if you please, if you don't mind'. And the other legislation remained in place."

The apartheid government was still reclassifying people in 1984. In that year, the BBC recorded that 518 coloured people were defined as white; two whites were called Chinese; one white was reclassified Indian; one white became coloured, and 89 coloured people became African.

"The Chinese were in an invidious position throughout the previous century and one was hoping that post-1994 they would be in a better space. They've always fallen through the cracks - always a fringe, sideline position," said Harris.

"These people are South African and have been denied their South Africanness for far too long. This was their final straw. At last it makes them feel as if they belong in the new South Africa."

The now clarified equity status of Chinese also means that companies will no longer have to rely on individual interpretation, says equity expert Jan Munnik of EES-Siyakha.

This applied to BEE scorecards, employment and skills development quotas.

"It basically means that the 10 000 South African Chinese will now be regarded as black. People are generally always looking for value-adding black partners, therefore, it's an opportunity as now a company with a low BEE score can include Chinese in this equation."

Wednesday's judgment was not the first time the Chinese community had broken its traditionally low profile.

By 1907, Chinese residents of Johannesburg lobbied with Mahatma Ghandi's non-violent, passive resistance campaign - satyagraha - against a law that forced Indians and Chinese to register and carry passes.

Three years earlier, the Cape Colony had passed the Chinese Exclusion Act of 1904 which required registration with authorities, the carrying of a document and permission to travel between regions.

And this was followed by various national and regional laws affecting movement, education, immigration, mixed marriages, land ownership and skilled work.

Joburg businessman Walter Pon recalled how the government could suddenly decide at a whim to allow Chinese flight attendants to fly on routes other than to Hong Kong.

No Asians, including the Chinese, were allowed to travel through the Orange Free State for more than 24 hours. And wives had to get permission to move to Joburg from the Eastern Cape.

"Everywhere you went you were treated as a second-class citizen. No-one knows what we went through. It was like fighting a boxing match with one hand tied behind your back," said Pon.

"People are saying we are jumping on a bandwagon. It's not a case of us wanting to be black. Black should be in inverted commas. That's a legal definition. We're Chinese. All we want is acknowledgement that we've been discriminated against."

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