NEASA and Sakeliga will appeal flawed Employment Equity judgment.

Dear employer

NEASA and Sakeliga will appeal directly to the Constitutional Court to set aside a deeply flawed judgment by the Pretoria High Court yesterday after the court refused our application for an interdict against the new employment equity quotas.

In light of this judgment, NEASA and Sakeliga 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. Below, we outline NEASA and Sakeliga’s next steps, followed by important recommendations for employers.

NEXT STEPS BY NEASA AND Sakeliga

NEASA and Sakeliga are now proceeding in three primary ways:

1. Direct appeal to the Constitutional Court on Part A: We will appeal directly to the Constitutional Court to set aside the High Court’s decision and grant us the interdict requested in Part A of our application. Part A seeks to interdict and/or suspend the implementation of the targets and regulations, which are due for implementation from 1 September 2025.

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.

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

2. Proceeding as planned with Part B: We are continuing as planned with the second part of the court case to stop the Act and quotas regardless of the urgent (first) part of the application. Part B seeks to have several sections of the Employment Equity Act declared unconstitutional and have the Minister of Employment and Labour’s regulations and sectoral numerical targets set aside.

3. Assisting employers with minimising harm: NEASA and Sakeliga 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.

    

RECOMMENDATIONS TO EMPLOYERS

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

However, since in reality general compliance with the quotas is impossible, the High Court’s finding necessarily means 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.

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

We recommend that employers consider the following advice prepared by NEASA:

1. What employers should know and consider:

    

   • The classification of employees on the EEA1 form serves as the starting point for all Employment Equity (EE) reports, in order 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. Thus, employers may not take disciplinary action against employees who sign the form but nonetheless 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 (previous EEA1 forms or any other information the employer can use to classify employees).

2. What employers should do about Employment Equity 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 1-4 in line with actual business realities. It is crucial that employers do not set unrealistic targets solely to try and comply with arbitrary 5-year targets.

• Employers should add a condition to the EEA13 form that the 5-year targets are inserted only due to the obligatory nature of the EEA 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.

3. An option for employers acting under duress

    

Where employers find themselves forced to co-operate with these unlawful and impossible Employment Equity 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.

Employers may consider this template letter.