The Complexity of Complexion

Mariska Harding is a Technical Signatory

and Verification Manager at Authentic Rating

Solutions; a SANAS accredited verification

agency. She completed her BCom Law,

LLB, LLM - General Private Law - Dip

Aipsa degree at the University of Pretoria.

Following five years of practising law, Mariska

shifted her career focus to B-BBEE. With a

good understanding of legislative law and

in-depth knowledge of all the Codes, she

has successfully overseen the verification

process of organisations of all sizes, across

most sectors. Mariska has a keen interest

in training and development, which has

encouraged her to share her technical

knowledge and vast expertise with her

clients and peers alike.

For centuries human beings have been categorised at birth by the date

they were born, their nationality, gender, race and finally a given name.

Changing any aspect of one’s official classification at birth is, therefore,

strictly guided by processes dictated by law. Most common are

instances of adoption and marriage; however, there are more complex

changes such as age and gender.

Last year a Swedish man aged 70 was advised by his doctor that,

medically, his body was that of a 60-year-old man. This inspired

him to unsuccessfully apply to the powers that be to officially change

his date of birth to reflect him being ten years younger. In recent years

the World Health Organisation began supporting gender reclassification

in order to support and minimise discrimination against the

Trans-gender community.

In South Africa today, taking into account requirements of a B-BBEE

Beneficiary, the issue of race re-classification has been brought into the

fold. The crux of doing this is a person classified as a ‘White’ Person

undergoing DNA testing to establish their ethnicity.

In terms of The Constitution: (Section 9(3))

“The state may not unfairly discriminate directly or indirectly against

anyone on one or more grounds, including race, gender, sex,

pregnancy, marital status, ethnic or social origin, colour, sexual

orientation, age, disability, religion, conscience, belief, culture,

language and birth”

Since there is no documented percentage of ethnicity in being

categorised as a ‘Black’ Person, upon tracing any African, Indian,

Coloured or Chinese ethnicity in their DNA, a classified ‘White’ Person

could essentially reclassify themselves as a ‘Black’ Person. But, how

does this translate in terms of qualifying as a B-BBEE Beneficiary

and reflect on a B-BBEE Scorecard? The question is, can a person

previously classified as a ‘White’ Person claim to be a ‘Black’ Person to

meet B-BBEE criteria? The answer is short and straightforward in terms

of B-BBEE legislation; no they cannot.

Clause 2.2.1 of the B-BBEE Act states:

“The Broad-Based Black Economic Empowerment strategy is

a necessary government intervention to address the systematic

exclusion of the majority of South Africans from full participation in

the economy. The defining feature of Apartheid was the use of race to

restrict and severely control access to the economy by ‘Black’ People.

The accumulation process was one of restricted wealth creation and imposed underdevelopment in ‘Black’ Communities to ensure that they were, in the main, suppliers of cheap labour. The under development of ‘Black’ South Africans took the form of progressive destruction of productive assets; deliberate denial of access to skills and jobs; and the undermining of self-employment and entrepreneurship. In combination these policies restricted and suppressed wealth and skill endowments in black communities, thereby structurally inhibiting their participation in a legislatively race-based economy.

The fact that ‘Black’ Communities had little access to technical and scientific teaching and learning further exacerbated the obstacles in our rapidly developing industrialisation process. It is a testimony to the vitality of ‘Black’ Society that so much has been achieved in so short a space of time

This clause makes it clear that B-BBEE was intended to address the

systematic exclusion of ‘Black’ People who are defined as follows:

‘Black’ People in terms of the B-BBEE Act are defined as African,

Coloured, Indian and Chinese People who are either citizens of South

Africa by birth or descent, or became citizens by naturalisation:

> On or before 27th April 1994; or

> Born on or after 27th April 1994 and who would have been entitled

to acquire citizenship by naturalisation prior to that date, but were

precluded from doing so by Apartheid policies

Therefore, a person classified as a ‘White’ Person prior to 1994, that

was excluded from Apartheid policies would not be able to re-classify

their race to qualify them as a B-BBEE Beneficiary. An organisation

accepting re-classification as a B-BBEE tactic and a verification

analyst allowing such reclassification of race would be deemed to have

circumvented the B-BBEE Act.