Racial classification, redress and citizenship: The case of the Chinese South Africans

Introduction

This opinion piece is written in the aftermath of a court challenge launched by the Chinese Association of South Africa (CASA) and two other applicants¹ against the South African government² in response to the exclusion of the Chinese from the definition of previously disadvantaged groups in the Employment Equity (EE) and Black Economic Empowerment (BEE) legislation. While the respondents initially submitted a Notice of Motion to Oppose CASA’s application, by January 21, 2008 the Minister of Justice and Constitutional Development filed a Notice indicating that it would not oppose the Notice of Motion but would abide by the court’s decision. On April 7, 2008 the respondents consented to Prayer 1 of the Notice of Motion and agreed that the matter could be set down on an unopposed basis (Edward Nathan Sonnenbergs Inc 2008:3). An order was subsequently issued by the Pretoria High Court on June 18 that Chinese South Africans fall within the definition of ‘black people’ contained in the Employment Equity Act 55 of 1998 and the Broad-Based Black Economic Empowerment Act 53 of 2003.

This court order has unleashed an alarming backlash in the media. Some black business and professional organisations have referred to the ruling as ‘surprising, irrational, shallow, opportunistic and inexplicable’ (Chilwane 2008). The Labour Minister, who ironically was one of the respondents who did not oppose CASA’s application, made baffling statements such as: ‘What I know is that coloureds don’t speak Chinese’ (Sapa 2008). Perhaps revealing his true feelings about the court order and his lack of understanding of the essence of the case, he also commented: ‘I suppose if I stand up now and say I want to be classified as pink, so maybe a court will agree that you are pink, even if you are not pink’ (Sapa 2008).

CASA’s application and the backlash reflected in the media are complex issues that require unpacking and careful study as they speak to how we as South Africans remember our history; how we view race and race classification; and towards whom we channel frustrations about unemployment, economic inequalities, and the process of black economic empowerment. This opinion piece serves as an attempt to tease out some of these complexities by providing background to the CASA case and discussing three issues that we feel the case speaks to: racial classification, redress, and citizenship and belonging.

Tensions between current policies of redress and the ongoing nation-building project form the conceptual framework for this brief paper. If, as Bentley and Habib argue, both redress and the achievement of a cosmopolitan non-racial citizenship are legitimate national projects (Bentley and Habib 2008:7), then this paper seeks to consider the issues from the perspective of the Chinese South African minority. We seek to reflect on recent events using a lens of race and citizenship, identifying the particular impact these have on the Chinese and what this, in turn, says about present-day South Africa.

Background to the CASA case

The cornerstone of apartheid’s system of racial (re)classification, the Population Registration Act 30 of 1950, divided South Africans into three race categories: White, Coloured and Native/Bantu/Black (Union of South Africa 1950). In 1959, Proclamation 46 further divided the Coloured group into seven subgroups: Cape Coloured, Malay, Griqua, Chinese, Indian, Other Asiatic, and Other Coloured (Union of South Africa 1959).³

The Chinese were also subjected to other apartheid legislation, including the Group Areas Act 41 of 1950, the Immigrants Regulation Amendment Act 43 of 1953, the Prohibition of Mixed Marriages Act 55 of 1949, the Immorality Amendment Acts of 1951 and 1957, and the Reservation of Separate Amenities Act 49 of 1953. Furthermore, Chinese South Africans did not have the right to vote until South Africa’s first democratic election in 1994. With regard to the Group Areas Act, due in part to the small size of the Chinese community and in part to their active resistance, the Chinese were gradually allowed, on an individual permit basis, to move into white residential...