The National Employers’ Association of South Africa (Neasa) and business lobby group Sakeliga have turned to the Constitutional Court in a bid to have the government’s employment equity regulations suspended.
Neasa, which represents about 7,000 employers in different sectors, and Sakeliga initiated a legal challenge last July seeking an interim order to suspend the employment equity regulations pending a review application.
Pretoria high court judge Graham Moshoana dismissed the urgent application in August. The application for leave to appeal against the judgment was also denied.
The organisations have now turned to the apex court and filed an appeal on an urgent basis. This marks the second time the organisations have applied to the court, the application in September having been refused.
Neasa and Sakeliga’s application to the Supreme Court of Appeal (SCA) was also dismissed in March.
Having exhausted their remedies in the lower courts, the organisations have now once again applied to the top court.
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In the court papers, Neasa CEO Gerhard Papenfus argues for the top court to issue an order suspending the regulations pending the review application.
The regulations were published last April after the Employment Equity Amendment Act came into effect in January 2025. Employers were required to submit reports based on the new regulations, which have numerical targets for economic sectors, in September.
Papenfus argues the review application will likely be heard in 2027.
“The applicants persist with the attempt to appeal urgently against the high court’s refusal of interlocutory relief, pending the review. The combined review and constitutional challenge to which this application relates will be a very large application. That application will almost certainly not be heard until deep 2027.
“The targets and impugned regulations require substantial changes to the workforce .... of every sector of the economy and public administration over the next five years,” he argues.
Papenfus contends the targets are unconstitutional and invalid. “The number of business and individuals that will be adversely affected, and the scale of irreparable harm that will be suffered, will equally be vast.”
Neasa and Sekaliga argued that the regulations make “impossible requirements” and employers will suffer harm because of penalties such as “fines as high as 10% of turnover and eventual prosecution of executives”.
The state has been opposing the application.
The legal showdown was pinned on the alleged failure to consult employees.
The regulations stipulate that within five years the top management in the agriculture, forestry & fishing sector should be 13.2% male and 20.8% female and 3% of staff must be people living with disabilities.
In the financial and insurance top management, the requirement is 27.8% male and 35.3% female, while an overall 3% must be people living with disabilities.
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