Minister published draft sectoral numerical targets for Comment – Solidarity lodges legal challenge to the Setting of sectoral numerical targets

July 2023

This act amends the Employment Equity Act of 1998 “EEA”. One of the main objectives of the amendments introduced is to empower the Minister of Employment and Labour (Minister) to, among other things, identify and set employment equity numerical targets for each national economic sector.

On Friday, 12 May 2023, the Minister published the draft five-year numerical targets for the identified national economic sectors, allowing interested parties 30 days to comment.

The numerical targets focus on top and senior management, as well as professionally qualified and skilled levels and people with disabilities. The targets are tabulated according to economic sector on the according to race and gender, with both national and provincial percentages indicated. The national targets will apply to designated employers operating nationally, while the respective provincial targets will apply to employers operating in the respective province. A designated employer may not apply both the national and provincial targets. The Minister has not published targets for the semi-skilled and unskilled levels. However, designated employers are required to take into account the economically active population demographics in respect of these levels (either nationally or provincially) in their employment equity plans in terms of section 20(2)(C) of the EEA.

Some parties have concerns that the sectorial numerical targets set by the Minister may constitute a rigid quota and therefore potentially render the application of the sectorial numerical targets unconstitutional. In this regard, Solidarity, a trade union, has lodged an application in the Labour Court challenging the relevant provisions of the EEA amendments relating to identifying and setting numerical targets, as well as the extent to which designated employers are required to implement these targets and align their employment equity plans with the targets.

Solidarity argues that these amendments are inconsistent with the Constitution in that they reinforce the racial categorisation of employees and applicants for employment by imposing a quota-based regime on designated employers and for purposes of the EEA, which amount to rigid quotas and absolute barriers based on race. Furthermore, Solidarity contends that the EEA amendments confers extensive powers on the Minister to set these targets, which lack the nuanced approach to affirmative action required by the Constitution. Finally, the trade union contends that these amendments are inconsistent with South Africa’s obligations under international law.

K. Cowley
(Vice-Chairperson – (CEA – TESD)