Employment Equity Act targets not rigid, says state in rebuttal of DA’s challenge

Two years after the Democratic Alliance first instituted a legal challenge against the government over amendments to the Employment Equity Act, the party finally had its day in court on Tuesday.

This comes after the Department of Employment and Labour gazetted the amendment Act in April, introducing five-year numerical targets for the top four occupational levels (junior, middle, senior and top management) across 18 sectors, ranging from finance to manufacturing.

The party argued that while its case was not about challenging transformation in the workplace, but rather about how the new amendments replace a system that was once flexible with one that is rigid, blunt and unconstitutional.

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.

To drive his point home, Jamie used the example of an Indian woman looking to work in the financial sector in Gauteng to illustrate how the new affirmative action targets would be discriminatory to the hypothetical person.

He said the woman would struggle to find employment under the new targets because the legislation would prevent employers from hiring her. Jamie said that the woman would have to move to KwaZulu-Natal, where Indian people made up a larger part of the demographic, to find gainful employment.

This, Jamie said, would create absolute barriers and quotas, which were prohibited by the Constitution and the original Act.

The DA also argued that:

• The Section 15a contravened the Dawood principle in that the powers it gave the minister of labour and employment to set targets were too vague and broad;


• The consequence of non-compliance with the new affirmative action targets could result in “severe” penalties, which include being barred from conducting business with the government and incurring fines; and


• The amendment Bill was passed under Section 75 of the Constitution (which considers the effect legislation would have on a national level) instead of Section 76 (which takes provinces into account), meaning it was tagged incorrectly and was therefore invalid.

The party sought to have the amendment Act declared invalid in its entirety, due to the incorrect tagging and Section 15a declared unconstitutional as it violated Section 9 of the Constitution and the Dawood principle.

State’s argument

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.

The advocate referred to Jamie’s example of the Indian woman who would have to hypothetically move to KZN because the targets were exhausted in Gauteng, adding, “That argument is not available on the pure issue of whether the legislation itself, not its application, is unconstitutional.”

With both sides having made their arguments, the matter has been reserved for judgment. DM