Sometimes, late at night, it is very difficult to come up with an interesting title. So this one will have to do.
I have been doing a little research on the Mining Charter. The first thing you notice about it is its title " Broad-Based Socio-Economic Empowerment Charter for the South African Mining Industry". It's the Broad-based SOCIO-economic etc. Very different to B-BBEE, in fact this charter pre-dates the B-BBEE Act by a year. It is therefore not surprising that the charter does not mention the B-BBEE Act.
As we all know this charter is not a charter, it forms part of the Mineral and Petroleum Resources Development Act. This means that in if you are desirous in complying with the Act then you have to follow the charter. I'm not going to go through the charter but I do want to talk about this term - historically disadvantaged person, or historically disadvantaged South African or historically disadvantaged individual; or as they are known as in acronym form - HDP (not very common), HDSA or HDI.
I remember meeting Kevin a few years ago and speaking about a certain Ivy regulation that required 50% black ownership. Kevin gave me that knowing look and followed it with the words "HDSA - historically disadvantaged South African". What Kevin was saying to me was that the term HDSA incorporates white women and white disabled people. This is what I want to throw out to you. What is the accepted understanding of the term HDI, HDSA as it refers to the Mining Charter?
The Minerals Act defines HDP as "any person, category of persons or community, disadvantaged by unfair discrimination before the Constitution took effect". The first thing you'll notice is the use of the word "person". This is a very broad term, it could include any person who was discriminated against at the time. It could include any person from any other country in the world. And then there is the term "disadvantaged by unfair discrimination". What exactly does this mean? For sure it means much more than not having the franchise. Could I as a white male claim that I was discriminated against because I was conscripted?
We have to look to legislation to dig deeper. One of the first remedial acts was the Employment Equity Act which stated
Recognising-
- that as a result of apartheid and other discriminatory laws and practices,there are disparities in employment, occupation and income within the national labour market; and
- that those disparities create such pronounced disadvantages for certain categories of people that they cannot be redressed simply by repealing discriminatory laws
The act then went on to define designated groups as "black people, women and people with disabilities". Just to be clear, the terms women and people with disabilities refer to all people who fulfill those criteria irrespective of race or nationality.
The most important point here is that the EE Act recognised that all women had suffered discrimination. The Act was promulgated in 1998 - at least four years earlier than the Minerals Act.
The next act to look at is the Competition Act, which was promulgated after the EE Act. The purpose of this act is, inter alia,
It has been amended a few times since and has yet to actually define what "historically disadvantaged persons" actually means. Which leads me to conclude that that definition exists elsewhere - exactly where I'd love to know.
Now onto the legendary PPPFA. Well not the act itself but its 2001 regulations that use the term HDI and define it as
(1) who, due to the apartheid policy that had been in place, had no franchise in national elections prior to the introduction of the Constitution of the Republic of South Africa,1983 (Act No 110 of 1983) or the Constitution of the Republic of South Africa,1993 (Act No 200 of 1993) (“the Interim Constitution”); and / or
(2) who is a female; and / or
(3) who has a disability:
Individual incorporates South African citizen. These are the 2001 regulations and like the EE Act they are very clear that white women and disabled people are included.
Now we come to the Minerals Act
The objects of this Act are to substantially and meaningfully expand opportunities for historically disadvantaged persons, including women, to enter the mineral and petroleum industries and to benefit from the exploitation of the nation's mineral and petroleum resources (section 2(d)
The definition of HDP in the Act does not expressly include women, but the intention is to include all women.
Where does this leave us? My conclusion is that if the EE Act recognises that a "designated group" includes all women and it is designed to remedy the discrimination these designated groups suffered in the past; then white women must fit in the definition of HDP as defined in the Minerals Act. (It must be noted that the term designated groups was updated in a later EE code of good practice uses the B-BBEE codes' definition of black people for designated people - but I don't think that that is pertinent to the Minerals Act).
That's my opinion - I would really appreciate any other opinion in the comments section below.
Interestingly - under HDSA / HDP / HDI - What would the position of Gay people be? They also had no rights prior to the adoption of the constitution? They endured more discrimination than white women did once it (their sexual preference) became known they where more often than not heavily discriminated which often even led to suicide?! Interesting how quickly the likes of Mr Manyi (sp) disregard all these and only end up with "black" as only meaning African, Coloured and Indian. BEE does not override the underlying legislation - often it only gives it teeth and direction. However this is often forgotten when one uses as a self-promoting podium.
Posted by: Sakkie O'Neil | February 16, 2009 at 10:27 AM