Nonprofit organisations Sakeliga and the National Employer’s Association of South Africa (NEASA) have announced that they will appeal directly to the Constitutional Court to set aside what they believe is a “deeply flawed” judgment by the Pretoria High Court, issued on August 28, after the court refused their application for an interdict against the new Employment Equity (EE) quotas. 

“In light of this judgment, Sakeliga and NEASA will pursue further countermeasures. We will not stop until this harmful and unjustified State intervention is reversed or rendered moot. Responsible employers should seek to minimise the harm of these absurd regulations,” the organisations said in a joint statement issued on August 29.

Sakeliga and NEASA have noted that they will now proceed in three primary ways.

The first step will be a direct appeal to the Constitutional Court to set aside the High Court’s decision and grant the parties the interdict requested in Part A of their application.

Part A seeks to interdict and/or suspend the implementation of the targets and regulations, which were due for implementation from September 1.

“The High Court ruling errs in not appreciating the constitutional nature of the matter, the suitability of an interdict against the operation of unlawful regulations and the requirements for consultation before promulgation of regulations, among others,” the parties said. 

For procedural reasons, this direct appeal will be supplemented with a parallel appeal to the Supreme Court of Appeal.

Second, the two organisation will proceed as planned with Part B of the court case to stop the EE Act and quotas regardless of the urgent first part of the application. Part B seeks to have several sections of the Act declared unconstitutional and have Employment and Labour Minister Nomakhosazana Meth’s regulations and sectoral numerical targets set aside.

Third, Sakeliga and NEASA will assist employers with maximising resistance and minimising the harm of the regulations to them, their employees and the public. This will be a multi-year effort, they said.

RECOMMENDATIONS TO EMPLOYERS

The court’s refusal to grant an urgent interdict means that companies with 50 or more employees are expected to submit EE plans in accordance with the prevailing 2025 regulations and targets. 

However, the parties have argued that general compliance with these quotas is impossible. Therefore, given the High Court’s finding, the organisations have noted that tens of thousands of employers must now pursue strategies aimed at minimising the harm incurred to their businesses, their employees and the public.

“No serious businesses anywhere can be expected to run their hiring off a government spreadsheet. The roughly 50% quotas for men and women, regardless of their differences, are obviously impossible to meet, and the racial quotas are even more far-fetched and disruptive to businesses, workplace harmony and staff relations,” the parties said.

Moreover, these regulations apply to all local employment by organisations with 50 or more staff, even international ones.

Sakeliga has recommended that employers consider the following labour law advice prepared by NEASA.

According to the two organisation, employers should know and consider the following:

The classification of employees on the EEA1 form serves as the starting point for all EE reports to create a workplace profile illustrating the current racial, gender and disability composition of the employer’s workforce.

The EE regulations place no legal obligation on employees to racially classify themselves on the form. Therefore, employers may not take disciplinary action against employees who sign the form but refuse to self-classify with regard to their race or disability.

In the event of employees refusing to classify themselves when completing the EEA1 form, or doing so inaccurately, the EE regulations require the employer to then racially classify its employees.

Although there are no criteria or guidelines on how to racially classify individuals, effectively rendering the performance of classification fraught with practical and legal pitfalls, employers may use historical or current data in an effort to classify employees, such as previous EEA1 forms or any other information the employer can use to classify employees.

NEASA and Sakeliga have recommended that employers should do the following about their EE reporting and planning:

Employers should add a condition to all EEA1 forms that they cannot be held accountable for the racial classification performed on the form, as there are no criteria or guidelines according to which the racial classification can be done.

Employers should add a condition to their EEA12 form that historical and current data has been used to classify employees and that they cannot accept responsibility for the racial classification of employees.

Employers should set targets for years one to four in line with actual business realities and not set unrealistic targets solely to try and comply with “arbitrary” five-year targets.

Employers should add a condition to the EEA13 form that the five-year targets are inserted only owing to the obligatory nature of the EE Act and its regulations, and that the targets cannot realistically be met.

“Individual cases require careful consideration, and we recommend that employers contact NEASA for personalised advice. Where employers find themselves forced to cooperate with these unlawful and impossible EE regulations, they would be acting under duress.

“We recommend that employers reserve their rights and minimise their future legal liability against employees and others by recording a formal objection with the Department of Employment and Labour, once they have completed their online EE report,” NEASA and Sakeliga implored.