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Constant questions are always raised about the definition of black people. On the surface

this seems to be a straight forward question however when this gets uncovered there are

complexities. This definition is important because it identifies who are the beneficiariesof Black Economic Empowerment (BEE) initiatives which has an effect on the BEE

recognition that enterprises can receive.

Let us explore the history of the definition of black people as it relates to Black Economic

Empowerment. The first legislative instrument that highlighted the need to define black

people was the interim Constitution of 1993 which stated under sections 8 (2) and 8 (3)(a) that no person shall be unfairly discriminated against, but this provision does not

preclude measures designed to achieve adequate protection and advancement of persons

or groups or categories of persons previously disadvantaged by unfair discrimination, in

order to permit their full and equal enjoyment of all rights and freedoms. However theterm previously disadvantaged people was not specifically defined in section 233 of the

interim Constitution.

The general understanding of previouslydisadvantaged people/individuals was

that it referred to people who were byvirtue of their racial classification due to

the political and legal dispensation

prevailing in South Africa prior to thenational elections held in April 1994,

prohibited from exercising a right to vote

for any of the houses of the erstwhile

tricameral parliament of South Africa orany predecessor thereof.

In 1998 the Employment Equity Act defined Black people as Africans, Coloureds,Indians. However the application of employment equity was wider through using the

term designated groups which comprised black people, women and people with

disabilities. These groups were discriminated against through both legal and structuralmeans when it came to employment opportunities. Included in these groups would be

people from other African countries who are residents in South Africa. Therefore the

legislations aim is to address that broader discrimination in the workplace.

Given the use of designated groups the term historically disadvantaged people began

to be used widely. This t effectively included everyone who was discriminated against on

the basis of race, gender and disability. This term has been used in the PreferentialProcurement Policy Framework Act of 2000 and its variation in the Minerals and

Petroleum Resources Development Act of 2002 and most legislation passed around prior

to 2004. Effectively included in this definition are white women and white disabledpeople, which would mean that they would be beneficiaries of BEE initiatives in the

context where this definition is used.

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The BEE Commission report released in 2000 did not come up with a specific definition

of black people but one could deduce from the analysis of the statistics within the report

that it included Africans, Coloureds and Indians. In 2003 the dtis BEE Strategydocument was released and it referred to blacks as indigenous Africans, Coloureds and

Indians. This definition is more in line with one espoused in the RDP policy document.

The BEE Strategy was aimed at providing more clarity on the definition of black,because on occasion there has been unnecessary confusion of defining who is black

The strategys definition was followed by the Broad-based BEE Act of 2003 definition

which uses the Employment Equity definition. In the public hearings before the passingof the BEE Act, some of the submissions called for further differentiation of the

beneficiaries of BEE from the current collective term which includes African, Coloured

and Indian.

The codes of good practice on Broad-based BEE provide more clarity on the definition,

which includes Africans, Coloureds and Indians who are South African citizens by birth,

descent or naturalization before the passing of the interim Constitution in 1993. This

means that people from other parts of Africa who were not naturalized prior to 1993 orwho do not have South African parents would not qualify. However if their children were

born in South Africa, their children would qualify as black.

With more clarity that is provided further questions arise. How does one classify other

Asians born in South Africa who are not necessarily Indian? What about South AfricanArabs? What about spouses of South African exiles who were not naturalized prior to

1993 as protest against the previous government? These become important issues for

example when it comes to the quantification of BEE contribution. In trying to answer

these questions it becomes necessary to go back to the apartheid laws to see how thedifferent race groups were classified in order to see in which racial category they fit in.

On the surface it is scary and nonsensical to dig back to the gory apartheid laws but if the

quest for equitable and unbiased approach to BEE is important then it may be necessaryto do so.