Business Unity SA (Busa) has taken the government to court over its fresh employment equity targets, saying the rushed procedures and opaque data threaten to turn a policy meant to repair apartheid era injustices into an enforcement fiasco.
The employment & labour department gazetted the new employment equity regulations at the start of the year, empowering the minister to set sector-specific numerical targets for the representation of blacks, women and people with disabilities across the workforce.
The new regime, which took effect on September 1 under the Employment Equity Amendment Act, is the latest effort to inject momentum in workplace transformation as previous good faith measured has left progress patchy at best in senior ranks and some sectors.
Busa said while it supported transformation and the legislative framework adopted by Parliament, the regulations were “procedurally defective and substantively irrational”, risking undermining the policy aims and fragile trust that must exist between government and business.
CEO Khulekani Mathe said the department had not met the constitutional requirement of meaningful consultation.
“What took place was not meaningful consultation; it was a presentation,” said Mathe, referring to the less than a week given to employers to digest draft targets, many of whom received the proposals on the eve of scheduled meetings.
Opaque, inflexible and misaligned
The organisation contends that the department had not disclosed the methodology used to calculate the targets, citing as an example the increase of the disability target to 3% without reference to reliable data.
It further argued that the regulations adopted a one-size-fits-all approach, disregarded sectoral and regional differences and conflicted with broad-based black economic empowerment sector codes.
The legal challenge is grounded in section 195 of the constitution — which requires public administration to be transparent, accountable and responsive — as well as in the Promotion of Administrative Justice Act, which prohibits irrational or procedurally unfair administrative action.
Busa maintained that the regulations, if left unchallenged, would undermine the credibility of employment equity policy by imposing targets that are impractical and unenforceable.
Business Unity SA has taken the government to court over new employment equity targets, arguing they are rushed, lack transparency and ignore sector-specific realities. If upheld, the rules could force rigid quotas on businesses, risking legal overreach and damaging trust between government and the private sector.
The Employment Equity Amendment Act, passed in 2022 and brought into effect this year, empowered the minister of employment & labour to set sectoral numerical targets for designated employers.
It also introduces compliance certificates as a prerequisite for companies seeking state contracts. The minister’s authority to issue regulations derives from section 55 of the principal act, but the scope of that delegation is now under judicial scrutiny.
The high court will be asked to determine whether the regulations meet the constitutional standard of legality and rationality.
Busa is not alone. Neasa (National Employers’ Association of SA) and Sakeliga also initiated a joint high court bid to halt the sector targets, branding them unconstitutional, impractical and harmful to business autonomy.
Although the application was dismissed, both organisations have indicated their intention to escalate the matter to the Constitutional Court.
They accuse the department of imposing rigid racial and gender quotas that ignore operational realities or regional labour market conditions.
They argue that the regulations infringe on the constitutional rights to freedom of association and trade, and that the minister’s powers under the Employment Equity Amendment Act represent an overreach of executive authority.
The two organisations are seeking a full reversal of the regulations and legal protection for employers facing penalties under the amended framework.
The DA has launched a separate challenge in the Gauteng high court, arguing that the targets violate the rights to equality and freedom of trade.
The party maintains the targets function as quotas rather than flexible benchmarks and that the minister’s powers enable the imposition of national demographic ratios without regard to firm-level or regional context.
DA federal chairperson Helen Zille described the amendments as granting “totalitarian powers of social engineering” to the executive.
The Busa matter is currently before the high court, with the department of employment & labour expected to file its responding papers in the coming weeks. A hearing date has not yet been confirmed.
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