Understanding the Employment Equity Amendment Act and the DA’s Legal Challenge

In recent weeks, South Africa’s transformation agenda has been at the centre of a high-profile legal battle as the Democratic Alliance (DA) took the government to court over the Employment Equity Amendment Act, signed into law in 2022 and gazetted in 2024. The case is being heard in the Gauteng Division of the High Court and has drawn strong opinions from both sides of the political spectrum.

What Is the Employment Equity Amendment Act?   

The Employment Equity Amendment Act seeks to enhance workplace transformation by introducing five-year numerical targets for employment equity across 18 economic sectors. These targets are focused on the top four occupational levels—junior, middle, senior, and top management—and aim to improve the representation of designated groups: black South Africans, women, and persons with disabilities.

The Minister of Employment and Labour is empowered to set these targets after consultation with sector stakeholders and advice from the Employment Equity Commission. Importantly, the Act provides flexibility, allowing employers to justify non-compliance based on reasonable grounds—contrasting the concept of rigid quotas.

The DA’s Concerns   

While the DA maintains it supports workplace transformation, its core arguments against the Act are constitutional and procedural:

• Rigid targets vs. quotas: The DA argues that sector-specific targets amount to quotas, which are prohibited by the Constitution. They assert that the original Act provided more flexibility by allowing employers to set their own equity plans based on internal assessments.

• Unfair impact on minorities: The party believes the amended Act could unfairly disadvantage coloured and Indian populations, especially in provinces where they form a significant demographic (e.g., Western Cape, KwaZulu-Natal).

• Ministerial overreach: The DA argues Section 15A gives the Minister excessive discretion without adequate legal guidelines, breaching principles of administrative justice (specifically, the Dawood principle).

• Incorrect legislative process: They also challenge the Act’s passage under Section 75 of the Constitution, claiming it should have followed Section 76, which requires provincial consultation. If proven, this could invalidate the entire Act on a technicality.

The State’s Rebuttal   

The Department of Employment and Labour defends the amendment as both lawful and necessary for accelerating transformation. Key points from the state’s position include:

• No rigid quotas: The targets are designed as benchmarks, not strict quotas. Employers remain able to explain deviations based on valid operational reasons.

• Justifiable transformation: Given that white South Africans still hold a disproportionate number of top management roles (62.1% in 2024 despite being only 7.3% of the population), the state argues the pace of transformation under the old framework has been insufficient.

• Legislative authority: The state insists that the Minister’s powers are guided by consultations and recommendations, ensuring checks and balances.

• Constitutional validity: The government maintains the Act is consistent with Section 9 of the Constitution, which permits fair discrimination to advance equality.

Political Tensions   

The case has exposed ideological rifts. The DA frames its position as a defense of fairness and economic rationality, while the ANC and the Department of Employment and Labour accuse the party of resisting transformation and protecting historical privilege.

Minister Nomakhosazana Meth criticised the DA’s challenge as an “anti-transformation stance” that undermines post-apartheid gains in workplace equity. According to the Ministry, the Act balances fairness with transformation and is vital for reversing structural inequalities entrenched by decades of systemic exclusion.

What Comes Next?   

With arguments from both sides presented, the High Court has reserved judgment. If the DA’s constitutional and procedural objections succeed, the entire amendment may be struck down or sent back to Parliament for reprocessing. If not, employers in affected sectors will be expected to implement the sectoral targets as outlined.

A Reasoned Perspective   

Workplace transformation remains a critical but complex issue in South Africa. Balancing affirmative action with constitutional rights is not easy, especially in a diverse society with historical disparities and evolving economic realities.

Recommendation: Employers should stay informed and begin aligning their employment equity plans with sectoral targets—but also document any legitimate constraints. Simultaneously, ongoing dialogue between government, business, and civil society is essential to refine equity tools that are both effective and fair.

While the outcome of this legal challenge remains uncertain, businesses are still required to comply with the current Employment Equity legislation. At Chamlabour, we understand the complexities involved and are here to support your compliance journey. We offer flexible monthly packages to help employers develop, implement, and manage Employment Equity plans aligned with legal requirements. Whether you need guidance on sector targets or assistance with reporting, our team is ready to assist.