On 14 June 2023, the Democratic Alliance (“DA”)launched an application in the Pretoria High Court, challenging some of themost 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 section15A dealing with the determination of sectoral numerical targets. Thisamendment empowers the Minister of Employment and Labour to identify nationaleconomic 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 numericaltargets 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.

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, declaredunconstitutional and invalid. One of the grounds for this claim is that itamounts to the power to set quotas, which is contrary to what is allowed forand envisaged by the EEA and section 9 of the Constitution, since theapplication of quotas in practice may give rise to unfair discrimination.

The application leaves the balance of the EEA amendmentsuntouched. Neither the new definitions of “designated employers” or “peoplewith disabilities”, nor the further additions or deletions to theprovisions 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 forEmployment Equity, the Speaker of the National Assembly, and the Chairperson ofthe National Council of Provinces, are opposing the application.

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

Regarding the potential outcomes:

• Should the     application be 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.

• Should the DA 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.

We will keep you abreast of how this matter progresses.

Authors: Hugo Pienaar, Asma Cachalia, Alex van Greuning

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