REQUEST FOR AMENDMENT TO EMPLOYMENT EQUITY ACT


INTRODUCTION

The Chinese Association of South Africa (CASA) is recognised as the official representative body of the South African Chinese community.

We would like to thank the Labour Portfolio Committee for the opportunity to voice our concerns regarding the apparent exclusion of South Africans of Chinese origin in the Employment Equity Act of 1998 (EEA). This exclusion according to the Department of Labour was never intentional.

The EEA clause to which we are seeking an amendment is the following:

Chapter III, Paragraph 13, reads as follows:
"Duties of designated employers – (1) Every designated employer must,
in order to achieve employment equity, implement affirmative action
measures for people from DESIGNATED GROUPS in terms of this Act".

Included under definitions:
"Designated Groups" – means black people, women and people with disabilities;
"Black People" is a generic term which means Africans, Coloureds and Indians.

Prior to 1994, when identity documents referred to race, Chinese were initially classified as Coloured and later a separate category of "Chinese" was introduced. This is substantiated by Annexure A. The result of this classification resulted in Chinese being discriminated against under the apartheid laws (see Annexure B).

This matter was not pursued by the Chinese community when the EEA was first promulgated as it was presumed that the definition as stated under the Population Registration Act of 1950 as amended in 1967 would apply.

This has unfortunately not been the case. The current wording of the EEA together with the revoking of the Population Registration Act of 1950 has resulted in the Chinese being totally excluded from any Affirmative Action.


UNINTENDED CONSEQUENCES

This discrepancy in the EEA has led to the following situations being encountered by Chinese work seekers.

* In Port Elizabeth, Delta Motors have stated that they will not recognise Chinese as
HDI’s.

* There are cases where Eskom has overlooked a person of Chinese origin for
promotion because he was not deemed a HDI.

* Confusion regarding Chinese employees exists in legal practices because the EEA
does not include a definition for Chinese.

* De Beers has indicated that they will not recognise Chinese as HDI’s unless they
are able to prove that they were HDI’s prior to 1994.

* Shell SA has asked Chinese employees to decide their own classification since they
regard the Act as vague.

* Employment agencies have difficulty in placing Chinese workers because there is
uncertainty as to whether they are HDI’s.



VIEWS OF STATE DEPARTMENTS

After consultation with the Department of Labour, we have been informed that there was never any intention to exclude the Chinese as HDI’s.

The Department of Home Affairs concurs that prior to 1994, Chinese were classified under the group Coloured and are therefore HDI’s.

Most importantly, the Department of Finance (State Treasury) describes a 'historically disadvantaged individual" as "a South African citizen who had no franchise in national elections prior to the introduction of the Constitution of the Republic of South Africa, 108 of 1996 and/or who is a female; and/or who has a disability.


POSSIBLE AMENDMENTS

Today we are seeking an amendment to the EEA of 1998 to find a solution to the dilemma facing Chinese workers. Legal experts have recommended the following options which may be used to solve the problem:

Include in the EE definition of Designated Group, the words "any HDI".
Include in the EE definition of HDI, the words "any South African citizen who had no franchise in national elections prior to the introduction of the Constitution of the Republic of South Africa No. 108 of 1996 and/or who is female and/or who has a disability.
3. Include a definition of "coloured", the words "any person classified as coloured in terms of the Race Classification Act of 1950 as amended in 1967".

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At no stage do we believe it necessary to raise Chinese as a separate ethnic group in
the definition as this is not what the new South Africa promotes.

The amendment to the EEA would allow us as South Africans to believe that we are part of one nation.

We humbly request this committee to amend this Act to clear up any further misinterpretation of the spirit and letter of the EEA.

With sincere thanks,



PATRICK CHONG

CHAIRMAN


8 May 2003

ANNEXURE B



THE CHINESE OF SOUTH AFRICA

The Chinese in South Africa have the singular distinction of being the only population group in the country which has never ever been able to vote in any form of government, whether at national, provincial or local level.

During the 80s, the question of normal civil rights to the Chinese was raised at government level. CASA's response was that the Chinese would only consider that if it was a constitutional solution acceptable to ALL South Africans, as this was the only long term solution.

The Chinese in South Africa have been subjected to racial discrimination under the apartheid laws together with all other designated groups.

The following are but some examples of such discrimination:
1. We were prohibited from voting in any form.
2. We could not purchase any property in white areas.
3. We were unable to enter white government schools.
4. Attendance at universities and technicons were subject to special permits.
5. We were unable to sign apprenticeships in most trades.
6. We were restricted access to restaurants and theatres in white areas.
7. We were not allowed to use public transport designated for whites.
8. We were not allowed to marry across the colour line.
9. We were subject to job restrictions, resulting in widespread exploitation.

During the period from 1960 to 1980 the Chinese were fighting for equal opportunity. The frustration resulting from an unsympathetic government during this period led to a massive exodus of young Chinese.

Equal opportunity under the previous government was seen as:
(1) - participation in the Presidents Council by an appointed representative.
- the Chinese community refused to participate and did not recognise the
appointed representative.

(2) During the 1980’s Chinese were offered white status which was refused as we felt that until the law was applied equally to all we would not accept any token solutions.

The Association had to embark on a major education drive in 1994 to inform the community of their rights and obligations in registering and voting. To us, as South Africans, April 27 1994, represented the most important breakthrough to all that we had fought for.