Ernest Mabuza
Johannesburg

THE Pretoria High Court ruled yesterday that South Africans of Chinese descent should be defined as black for the purposes of the employment equity and broad-based black economic empowerment legislation.

The ruling means Chinese South Africans will now benefit under the country's black economic empowerment schemes, will have access to staff empowerment allocations by companies, and will be regarded as black for employment purposes.

There are about 10000 Chinese South Africans.

The ruling follows an eight-year battle by the Chinese Association of SA (Casa) to get Chinese South Africans included in the definition of "black people" in legislation designed to benefit previously disadvantaged groups.

Before 1994, Chinese South Africans were classified as coloured.

In the democratic era, the Broad-Based Black Economic Empowerment Act and the Employment Equity Act did not specify whether Chinese citizens qualified for consideration as disadvantaged people.

Employment equity and empowerment laws stated that "black people" was a generic term that meant Africans, coloureds and Indians.

Judge Cynthia Pretorius made the order drafted by the association an order of the court after Labour Minister Membathisi Mdladlana, Trade and Industry Minister Mandisi Mpahlwa and Justice Minister Brigitte Mabandla did not oppose the application.

The court order also ordered the ministers to pay the costs of the association, including the cost of two counsel.

George Bizos SC, for the association, told the court the issue was about the status of members of the Chinese community who were excluded from benefiting from the two acts.

"We contended that the provision was unconstitutional because members of the community of Chinese were in fact part of the discriminated people in the past. They were regarded as coloureds or Asians in the past," Bizos said.

He said it would be drastic if the association asked for the two acts to be declared unconstitutional on the grounds of inequality and suggested that amending them to include Chinese South Africans as black would solve the problem.

Bizos said although the ministers had originally filed a notice to oppose Casa's application, they eventually conceded the merits of the case in April and no longer opposed the application.

Casa chairman Patrick Chong said although the acts did not specifically exclude Chinese South Africans, the fact that Chinese were not mentioned created confusion.

Chong said that one bank classified Chinese South Africans as "black" for the purposes of the act while others declined to do so.

He said the association had been in discussions with the government to seek clarity on the status of Chinese South Africans. In 2006, a law firm representing Casa wrote a letter to Mdladlana, Mpahlwa and Mabandla demanding clarity on the status of Chinese citizens . When its endeavours failed, the association launched a high court application last year.

While the Freedom Front Plus welcomed the ruling, its youth leader, Cornelius Jansen van Rensburg, said that the ruling created an absurdity.

"A rich person immigrating from China will enjoy more privileges than a poor Afrikaner whose forefathers have lived here for over 300 years," he said.