Court battle looms over Employment Equity Act amendments

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On 14 June 2023, the Democratic Alliance (DA) launched an application in the Pretoria High Court, challenging some of the most recent amendments to the Employment Equity Act 55 of 1998 (EEA), as unconstitutional and invalid.

A key amendment to the EEA was the introduction of section 15A dealing with the determination of sectoral numerical targets. This amendment empowers the Minister of Employment and Labour to identify national economic sectors and, with the advice of the Commission for Employment Equity, set numerical targets to be reached by designated employers in those sectors.

The introduction of the Minister’s power to set numerical targets per sector occasioned ancillary amendments to the EEA, namely:

• the introduction of a definition for “sector” in section 1 of the EEA, meaning an industry or service or part of any industry or service;
  
• section 20(2A), which requires employment equity plans to align with sector targets;
  
• section 42(1)(aA), which introduces compliance with sector targets as a factor that designated employers will be measured against to establish employment equity compliance;
  
• section 53(6)(a) and (b), which makes compliance with sector targets a requirement for the issuing of compliance certificates needed to obtain state contracts.

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The aim of the DA’s application is to have sections 15A, 20(2A), 42(1)(aA), 53(6)(a) and 53(6)(b) of the EEA, described above, declared unconstitutional and invalid. One of the grounds for this claim is that it amounts to the power to set quotas, which is contrary to what is allowed for and envisaged by the EEA and section 9 of the Constitution, since the application of quotas in practice may give rise to unfair discrimination.

The application leaves the balance of the EEA amendments untouched. Neither the new definitions of “designated employers” or “people with disabilities”, nor the further additions or deletions to the provisions of the EEA, are being challenged. These amendments will stand, should the DA’s application be successful.

The Minister of Employment and Labour, the Commission for Employment Equity, the Speaker of the National Assembly, and the Chairperson of the National Council of Provinces, are opposing the application.

On 6 May 2025, the application will be heard in the Pretoria High Court. We anticipate that judgment will not be handed down on the day and will be reserved to be handed down on a later date.

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What are the potential outcomes?

If the application is successful, it will have to go to the Constitutional Court for confirmation of the unconstitutionality and invalidity of the amendments related to the introduction of sectoral numerical targets.

If the DA does not succeed in the High Court, it may elect to pursue an appeal before the Supreme Court of Appeal, or appeal directly to the Constitutional Court. Either way, we expect this matter is far from over.