The department of employment & labour will defend the constitutionality of the Employment Equity Amendment Act right up to the Constitutional Court if it lost the case in the lower courts, a department official told MPs on Wednesday.
The act and its regulations impose employment equity targets for 18 economic sectors that have to be reached by the end of five years. The DA argues in its Western Cape High Court challenge the rigid targets amount to quotas, which are prohibited by the constitution, and wants the act declared unlawful and invalid.
The DA argues the law and its regulations fail to take into account the specific labour market dynamics faced by individual employers. Employment & labour minister Nomakhosazana Meth insists they are necessary to achieve equality in the workplace. She said the employment equity targets are flexible and not rigid quotas and the law is fully constitutional.
Acting deputy director of the department Thembinkosi Mkalipi told employment and labour committee MPs he was sure the DA would also take the matter to the Constitutional Court if it lost in the lower courts. “That is where the case will end up on both sides. We will fight to the end,” Mkalipi said, adding the department was confident it had a good case.
In terms of the regulations employers will set their own annual targets and will be assessed after a year to see whether they have achieved them. The first assessment will be in 2026 on the base reports submitted this year. The targets can be low, but Mkalipi pointed out in an interview with Business Day this means higher annual targets would be required in the later years to achieve the necessary 100% compliance with the sectoral targets after five years.
If an employer failed to meet its own annual target and failed to justify it in terms of the justifiable reasons listed in the regulations, it would be taken to court and a penalty imposed.
The department's director for employment equity, Ntsoaki Mamashela, provided the employment equity data for 2024 relative to the national economically active population (EAP) for each racial group in the public and private sector. This shows white males dominated the upper echelons of management while blacks were dominant in the lower semiskilled and unskilled categories.
While whites represented 61% of top management in the public and private sectors combined, they only constituted 7.5% of the EAP. Africans represented 18% of top management compared with their 81% share of the EAP. In the private sector the figures were 64.2% and 14.7%, respectively.
Whites accounted for 47.3% of senior management and Africans 28.8%. Women of all races were unrepresented in all upper levels of management.
Mamashela clarified there would be alignment between the employment equity requirements and those of the broad-based BEE scorecards as an employment equity certificate could be used to earn points on the scorecards.
DA employment and labour spokesperson Michael Bagraim said the data demonstrated government policies had failed, the laws were wrong and that tightening their screws would achieve the same results.
Of concern to opposition party MPs was the representation of foreign nationals at top management (2.8%), senior management (3.1%) and professionally qualified/middle management (2.3%). Multinationals frequently import their own managers and other businesses have sought foreigners because of the dearth of skills in SA.
Organised business has long complained about the barriers against the employment of skilled foreigners an issue that was recently addressed by reforms introduced by home affairs minister Leon Schreiber.
ANC, EFF and MK MPs agreed self-regulation of employment equity targets by employers had failed dismally leaving the economy untransformed. The new regulations under the act were meant to address this situation.
Committee chair Boyce Maneli urged that the targets be strictly enforced to ensure that there was redress and that they be implemented despite the court processes under way. Mamashela gave the assurance this was being done.
Maneli said the employment of foreign nationals had to be addressed and should only be allowed for scarce skills on condition a scarce skills transfer programme was in place. The use of foreign nationals in skilled and semiskilled positions should not be allowed.
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