Affirmative-action measures must ‘not go too far’, argues DA in court

The DA’s legal representative, Ismail Jamie, has argued that the Employment Equity Amendment Act is rigid and a one-size-fits-all, and that it should not be allowed to proceed in its current state.

President Cyril Ramaphosa signed the Employment Equity Amendment Act into law in April 2023.

The Presidency said at the time that the Act’s aim was to reduce the regulatory burden for small employers, allowing them to focus on job creation.

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Small businesses that employ fewer than 50 employees are no longer bound to comply with Chapter III of the Employment Equity Act, 1998 (EEA), for example, regarding the submission of their EE reports starting from the 2025 EE Reporting period.

The Act also empowers the labour minister to regulate the sector-specific numerical EE targets.

On Tuesday, the DA was in the High Court in Pretoria, challenging thirteen respondents, including the minister of Employment and Labour, Commission for Employment Equity, speaker of the National Assembly, chairperson of the National Council of Provinces and all premiers.

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The Amendment Act is not yet in effect.

Employment Equity Amendment Act: ‘Be careful’

The DA argued in court that although the constitution permits the adoption of affirmative-action measures to realise the constitutional promise of substantive equality, it must be approached with caution.

“Affirmative-action measures must be approached with caution because they can invade the dignity of those who are not preferred by them,” argued the DA.

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The party said these measures must “not go too far” and unduly invade the human dignity of those affected by them

“Whether an affirmative-action measure is constitutionally permissible depends on the context, and so, rigid or one-size-fits-all approaches are generally unconstitutional.”

The Act, in its unamended state, requires every employer with 50 or more employees to conduct an analysis of its workforce to determine the extent to which people from designated groups (i.e., people of colour, women and people with disabilities) are underrepresented at various occupational levels.

It calls on employers to prepare and implement an employment equity plan, which must include numerical goals to remedy any underrepresentation identified in the analysis.

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“Currently, and crucially, this obligation is context-sensitive. Every designated employer is required to formulate and implement numerical targets which are responsive to its unique position, including the degree of underrepresentation in its workforce and the availability of suitably qualified people from designated groups to remedy that underrepresentation,” argued the DA.

Amendment Act in ‘rigid’

However, the Amendment Act would replace this approach with one that is “rigid and one-size-fits-all”, argued the DA.

“If the Amendment Act comes into effect, every designated employer would have to follow ‘numerical targets’ set by the labour minister, regardless of the degree of underrepresentation it suffers from and its ability to remedy that underrepresentation.”

If an employer fails to make its workforce fit the particular demographic composition required by the relevant ministerial target, the employer will face severe penalties, including the inability to do business with the state, the cancellation of existing state contracts, compelling orders and fines.

The case continues.

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