After Helen Zille called the law ‘totalitarian’ and damaging to minorities in provinces like KZN and the Western Cape, the ANC hit back, reigniting a fundamental dispute over how transformation should occur in South Africa.
The DA takes Labour Minister Nomakhosazana Meth to the Gauteng Division of the High Court on Tuesday, 6 May to challenge an amendment to the Employment Equity Amendment Act (affirmative action) which it says borders on the “totalitarian”.
DA Federal Executive chairperson Helen Zille said the amendment introduces race quotas rather than targets, and runs foul of the fairness prescripts of the redress laws and the Constitution. This was said on the eve of the party’s clash with the ANC minister, a fellow member of the Government of National Unity (GNU).
“[The amendment] sets absolute barriers [to work, for people] for the circumstances of their birth,” said Zille in a briefing on the court action. “It’s the very opposite of redress and transformation.”
The DA will argue that the draft law should have “tagged” or alerted parliamentarians to its impact on provinces by invoking section 76 of the Constitution. Section 76 governs how Bills affecting provinces must be passed, and its focus is to ensure that provincial interests are considered.
“It’s unconstitutional because it is manifestly unfair to, for example, Indians in KwaZulu-Natal or coloured people in the Western Cape,” said Zille. Labour Court judgments have found that the incorrect application of employment equity laws has excluded people from so-called minority groups.
“You can’t have national targets applied provincially,” said Zille. “These are totalitarian powers without a place in a democracy.”
DA supporters in Cape Town gather in protest against the Employment Equity Amendment Act and the government’s newly drafted race-based water licensing rights regulations on 26 July 2023. (Photo: Ziyanda Duba)
More than 1,000 DA supporters march to Parliament to protest against the Employment Equity Act Draft Regulations on 26 July 2023. (Photo: Brenton Geach / Gallo Images)
Toughening up employment equity laws
The amendment law aims to toughen up affirmative action measures by allowing Meth to determine “sectoral numerical targets” — specific racial percentages for specified economic sectors.
Here’s what it says: “The Minister may, after consulting the relevant sectors and with the advice of the [Employment Equity] Commission, for the purpose of ensuring the equitable representation of suitably qualified people from designated groups at all occupational levels in the workforce, by notice in the Gazette set numerical targets for any national economic sector identified.”
Annual Employment Equity Commission reports show that executive and senior levels of staff at companies across the economy don’t represent South Africa’s population and remain dominated by white people, especially men.
Under the cosh, businesses have baulked at the amendment because it introduces yet another layer of bureaucratic compliance work for companies already creaking under the weight of the regulatory state. The Labour Department excluded companies employing fewer than 50 people after it faced a wall of opposition from small business owners who said they couldn’t cope with the cost of complying with all of South Africa’s red tape.
However, DA labour spokesperson Michael Bagraim said this wasn’t sufficient to stop the amended law’s deleterious impacts on the economy, which is forecast to grow at just over 1% this year and continues to experience job shedding.
Bagraim, an experienced labour lawyer, said small business owners would keep their employee numbers below 50 to avoid the new laws, which also give Meth the power to impose a fine of 10% of turnover for not meeting the target. The draft law allows 30 days for comment before the labour minister can gazette and implement a numerical sectoral target.
The final nail in the GNU coffin?
In four policy-related cases in a season of high lawfare, the DA is in court against the ANC, its senior partner in the GNU. President Cyril Ramaphosa, the ANC chief whip, Mdumiseni Ntuli, and the party’s caucus are incensed at the DA over this latest case against the Employment Equity Amendment Law.
It was reported at the weekend that a caucus majority wants the ANC to divorce the DA. “We are not in the GNU to please the ANC or anyone else,” said Zille. She said the party would be where it could make the most significant impact (meaning either in government or opposition).
On the VAT victory, the Expropriation Act (against which the DA is also in court against the government) and Bela (the education law, which almost caused a political war between the parties), she said it was better to be inside than outside.
“The only people we are trying to please are our current and future voters,” said Zille, adding that DA structures and procedures could, in time, decide the party would be better served outside the GNU.
Writer’s Comment: A different perspective
Employment equity has been the most successful part of the network of South Africa’s black economic empowerment (BEE) laws.
Without this law, which has its roots in the Constitution’s redress and transformational clauses, South Africa would not have its now sizeable black middle class. This class has fuelled growth, shifted the country’s culture and ensured remittances to the black communities left behind by derisory statecraft.
Depending on which definitions you use or surveys you consult, SA now has a broad black middle class of around 8.9 million people. It’s insufficient and should be more prominent to provide further hope for the future, but without the laws, the economy would not have changed in this essential and positive way.
This social shift has fuelled growth and employment as those of us who were newly middle class bought homes, kitted them out, made different lives than our forebears and cared for those left behind by the policies of the apartheid state, which linger well into the years of freedom. The net positive is clear to see.
Then came State Capture and its lost decade, and South Africa tracked backwards, ending the growth years and taking a hammer to employment.
The reasons workplaces would not have changed without the leverage of employment equity law and regulation span from unconscious bias to inherited network privilege to the lingering nature of racial bias and racism that are still prevalent, let’s be frank.
The DA case will come across as an attack on employment equity in general, but it is being fought on a clever tactical basis. It considers the provincial impacts and fights the employment equity amendments on the grounds that they violate section 76 of the Constitution.
The case will be an interesting ventilation of questions of transformation, provincial power versus national, progress, and how far (or not) we have walked on the long road to freedom.
It may also sound the death knell for the GNU, as it will expose diametrically opposed differences in the how of transformation between the ANC and DA.
Zille disputes any notion of the success of employment equity — though she was an adherent in earlier days when working at UCT and as a younger politician. Now more critical, she said, “What’s created a black middle class is state transformation (through black employment by the state). What we’ve built is a middle class through state preference, but it has not led to a [more] capable state. Don’t for one minute think State Capture is different.”
Zille said cadre deployment, the ANC system of placing supporters in key positions in the state, was legitimised using employment equity laws