By Lehlohonolo Lehana.
The Pretoria High Court has reserved judgment in the Democratic Alliance’s (DA) challenge to the Employment Equity Amendment Act.
DA has launched a constitutional challenge to the Employment Equity Amendment Act, which it says introduces rigid national race quotas in the workplace.
The new section 15A introduces sectoral numerical targets, which are expected to come into effect in September 2025.
This section establishes specific racial and gender-based numerical targets for businesses across four occupational levels (junior, middle, senior, and top management) within 18 industries in South Africa, to be achieved over the next five years.
Each category includes three percentage targets: one for “designated groups” males (non-white), one for “designated groups” females (including white females), and one for “disability only.”
Able-bodied white males are not explicitly mentioned and are considered the remaining percentage after the designated groups are accounted for.
The federal council chair Helen Zille said, the DA wants the court to allow companies to continue setting their own equity targets based on their specific context and the available labour force.
She added that the DA would never allow businesses to be forced to meet government-imposed demographic targets.
During the proceedings, Advocate Ismail Jamie SC, representing the DA, told the court that the amendment to the Act, specifically Section 15a, gave the Minister of Employment free rein to set sector-specific numerical targets that didn’t take into account the unique circumstances and challenges the employer might face.
Jamie said the previous iteration of the Act (before the amendments were introduced) allowed employers to develop their affirmative action measures for people in designated groups (non-white people, women and people living with disabilities). This was done by:
- Consulting with employees in alignment with Section 16;
- Conduct an analysis as required by Section 19;
- Preparing an employment equity plan as required by Section 19; and
- Reporting to the director-general on progress in the implementation of the Employment Equity Plan
In essence, the DA argued that while the previous Act was employer-driven, the new one forced rigid targets on to companies to the detriment of would-be employees and the sectors the new regulations would affect.
The (amended) targets are so rigid or so rigidly applied that they constitute a quota. That is not constitutional,” Jamie said.
However, the current demographic make-up of top management positions in South Africa highlights how the unamended Act has failed to significantly transform the workplace.
The DEL’s 2024 employment equity report found that despite comprising just 7.3% of the population, white workers held 62.1% of all top management positions.
Jamie said that by taking a national framework and ignoring the demographic differences among the provinces, the new targets would expressly exclude coloured and Indian people from having equitable access to jobs.
The state argued that the amendment to the Act did not create quotas, but rather was a flexible affirmative action measure because it set targets that aimed to track transformation.
Advocate Fana Nalane, representing the minister of employment, argued that while the DA was challenging the targets and how they would be implemented, the court had to determine if Section 15a of the amended Act passed constitutional muster and not how employers would implement the new regulations.
Nalane said just because the targets favoured a particular grouping over another, it did not mean that Section 15a was unconstitutional.
Nalane maintained that the Act grants the minister the authority to implement numerical equity targets tailored to the specific needs of different sectors to promote transformation.