Neasa and Sakeliga mount legal challenge against employment regulations

The National Employers' Association of South Africa (Neasa) and Sakeliga have jointly filed an urgent application for an interdict against the implementation of the 2025 Employment Equity sectoral numerical quotas and accompanying administrative regulations, as well as calling for the judicial review and setting aside thereof.

The Minister of Employment and Labour, Dr Nomakhosazana Meth published the employment equity regulations of April 15. These quotas require employers with 50 or more employees to restructure their entire workforce to reflect national gender and racial demographics of the country. 

The application challenges the legality and constitutionality of the newly introduced employment equity framework. The legal challenge firstly aims for a judicial review of the procedural acts of the Minister in setting the quotas, which the organisations alledge were fraught with irregularities and inadequacies in process.      

Secondly, the challenge also entails a constitutional challenge of the substance of relevant sections in the Employment Equity Act (EEA), which allow for and facilitate the setting and enforcement of these quotas.

In the founding affidavit, Neasa and Sakeliga argue that the Minister did not act in accordance with the Promotion of Administrative Justice Act, as she failed to adhere to the prescriptions of Section 15A of the EEA prior to the setting and publishing of the 2025 sectoral numerical quotas. They claim this renders Meth's actions unlawful and invalid.

The court papers, filed in the Gauteng Division of the High Court, also contend the Minister failed to properly identify, and gazette for public comment, the 18 national economic sectors for purposes of setting quotas, as required by Section 15A(4). 

Neasa and Sakeliga also argue that there was not proper consultation. Instead, they say stakeholders across numerous sectors were either not invited or not given adequate notice of virtual “consultations”, all of which were limited to only 1 000 attendees.

"Some stakeholders were given the final quotas only hours before these so-called consultations, with most consultations allowing less than 15 minutes for feedback and discussions. The Minister completely neglected to consult with employees in the economic sectors who will be severely affected by the quotas. Consultation in this manner is woefully inadequate for the Minister to have come to a reasonable, non-arbitrary decision in respect of the quotas," they said.

Neasa and Sakeliga also say the final 2025 quotas differ drastically from the earlier draft quotas published in 2023 and 2024 respectively. Despite this, they were never published for renewed public comment as required by section 15A(4) of the Act. This is a legal requirement and failure to adhere to it renders the quotas invalid.

They also argue that the quotas are arbitary and  do not take into account the nature, circumstances and challenges of each sector.

"The Minister failed to obtain and consider a comprehensive socio-economic impact study on the consequences of introducing sectoral quotas... This cannot be rationally introduced as a legal requirement without a proper assessment of its socio-economic impacts," the legal challenge maintains.

The second leg of the legal challenge questions the constitutionality and legality of the concept of forced ministerial quotas, which will be comprehensively argued at a later stage.

"Unless the Court intervenes and grants the interim relief sought, every employer that employs 50 employees or more, in every sector of the economy, will be required by legislation to prepare and implement employment equity plans to make their workforce conform to the 2025 quotas," they said. "This filing marks the next important step in preventing these impossible, irrational, and harmful employment quotas for the benefit of employers, employees, and all communities across the country."

Attempts to get comment from the Department of Employment and Labour by the time of going to print were unsuccessful.

BUSINESS REPORT