The Pretoria high court has dismissed the urgent application by the National Employers’ Association of SA (Neasa) to suspend the government’s new employment equity regulations.
Neasa, which represents about 7,000 employers in different sectors, and business lobby group Sakeliga initiated a legal challenge in July seeking an interim order to suspend the employment equity regulations pending a review application.
The regulations were published in April after the Employment Equity Amendment Act (EEAA) came into effect in January. Employers will now have to report based on the new regulations, which have numerical targets for employment sectors from September 1.
Neasa and Sakeliga argued the regulations had “impossible requirements” and employers will suffer harm because there are penalties of “fines as high as 10% of turnover and eventual prosecution of executives”.
The applicants wanted the court to suspend operation of the regulations pending the review of the regulations which affects the EEAA in part B of their application.
Judge Graham Moshoana dismissed the urgent application on Thursday, two weeks after the hearing.
The legal showdown was pinned on alleged failure to consult employees and discrimination of women in numerical targets.
“This court concludes that an interdictory relief is not appropriate in the circumstances of the present case. The application for an interdict or suspension falls to be dismissed,” said Moshoana.
He cited previous cases which stipulated an interdict is delivered in cases of future breach of the law. In this case, the regulations were signed into law in April and the case was initiated almost three months later. This created a conundrum for an interim interdict order because the law has already been in effect, Moshoana said.
“This court was at a complete loss regarding the powers that the court has to suspend an exercise of statutory powers. Particularly in an instance where the power was exercised many moons ago,” he said.
“Counsel for the applicants conceded, correctly so, the remedy of an interdict may be problematic, in an instance where the minister has already exercised what the applicants consider to be unlawful exercise of statutory power. Thus, an interdict would necessarily call for the unscrambling of an egg, as it were.”
Moshoana maintained that the available remedy for the applicants was the review application, which would test lawfulness of the regulations.
The regulations stipulate that within five years the top management of agriculture, forestry & fishing should be 13.2% male and 20.8% female and 3% of staff have to be people living with disabilities.
In the financial and insurance top management, the requirement is 27.8% male and 35.3% female, and with an overall 3% people living with disabilities.
Moshoana cited a Constitutional Court judgment which said before an interim interdict is granted one of the most crucial requirements for the applicant to meet was reasonable apprehension of irreparable and imminent harm.
“The applicants allege that from September 1 there will be untold mayhem that will see employees in large scales being displaced or dismissed. Even if the alleged mayhem will unfold, such will have been as a direct consequences of the application of the law. Until that law is declared invalid constitutionally, the rule of law demands compliance,” he said.
The state disputed the mayhem sentiment and allegations of harm that employers would be sanctioned should they not meet the targets. The department of employment & labour said there was a provision for employers to state reasons for not meeting targets.
“Generally no-one is above the law. The majority of apartheid legislations were invalid, yet they were applied because they were valid in the eyes of the law at the time,” said Moshoana.
The judge disagreed with the applicants that the alleged mayhem will be caused by the setting of numerical goals as opposed to the setting of numerical targets. “Numerical goals are set by the designated employers and not the minister. The minister has already done so and no untold mayhem is alleged to have taken place.”
He described the applicants’ case that the court has powers to suspend statutory powers to grant the relief as weak.
“In seeking to advance what respectfully appears to this court as a feeble case of this court allegedly having powers to suspend exercise of statutory powers, counsel for the applicants placed heavy reliance on the case of Head of Department, Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another.”
The judge said the circumstances in the school’s case were different from the applicants’. “There is no law that empowers a court to suspend a lawful exercise of statutory powers. The minister did not act in breach of section 15A.”
Each party was asked to pay their own legal costs.
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