From today, 1 September 2025, designated employers are required to implement employment equity plans that comply with the sectoral targets set by the Minister in April 2025. Much has been said and written about these targets and debates about their fairness, efficacy and practicality will likely continue well into the future.
Last week, on 28 August 2025, the High Court was called upon to determine a last gasp attempt to interdict the implementation of these sectoral targets. The Court was asked by the National Employers’ Association of South Africa (“NEASA”) and Sakeliga NPC (“Sakeliga”) to determine whether the Minister of Employment and Labour had acted unlawfully and arbitrarily when setting the sectoral targets.
NEASA and Sakeliga took issue with several aspects of the Minister’s alleged conduct, alleging, amongst other things, that the Minister had failed to consult with relevant employees or employers prior to implementing the sectoral targets.
Before dealing with these issues, however, the Court was obliged to determine whether the relief sought by NEASA and Sakeliga i.e. an interdict, was appropriate. The Court indicated that both NEASA and Sakeliga had conceded that an interdict would be a problematic remedy, especially in circumstances where the Minister has already exercised their powers by setting the numerical targets. In those circumstances, the Court found, the proverbial horse had already bolted and there was nothing left for it to stop by way of an interdict.
Turning to the question as to whether the Minister had acted unlawfully, the Court found that when the Minister published the notice in April 2025, they did so in accordance with the powers afforded to them under the Employment Equity Act 55 of 1998 (“the EEA”). There was no suggestion from either NEASA or Sakeliga that the Minister had acted in bad faith when doing so. In the circumstances, the Court found that until the law enacted by the Minister is set aside or declared constitutionally invalid, the ‘rule of law demands compliance’.
The Court also found that the EEA grants the Minister a wide discretion when setting the numerical targets. In doing so, the Minister may set the targets based on a wide variety of factors, including ‘any other relevant factor’. The Court also found, however, that the Minister was not at liberty to ‘roam freely or have unfettered discretion’. They were required to consult with the relevant sector, obtain advice from the Commission for Employment Equity, and finally have regard to the relevant code published by Statistics South Africa prior to issuing these targets.
Given the above, the Court found that it was ‘difficult to fathom arbitrariness in the process of setting numerical targets’ and there was no basis to conclude that the Minister had failed to consult or publish the notice, as required by the EEA, prior to the sectoral targets being set. The application was accordingly dismissed.
Sakeliga and NEASA have indicated their intention to approach the Constitutional Court directly to challenge the High Court’s decision regarding the implementation of the targets.
Analysis
The approaches adopted by NEASA and Sakeliga are not unexpected, as the sectoral targets will immediately impact firms. Other challenges to the targets are likely to emerge in the coming months, but little is likely to change and despite the ongoing legal proceedings, designated employers are still required to submit their reports in line with the new targets.
Designated employers who are risk-averse have no doubt already designed and adopted their employment equity plans, taking account of the new sectoral targets set by the Minister. News reports have suggested that the Department of Employment and Labour has employed several thousand new inspectors to ensure that employers comply with employment laws, especially employment equity.
The penalties for non-compliance are severe, and designated employers that have up to this point tried to avoid their employment equity obligations may soon be on the receiving end of an inspection by the Department of Employment and Labour. The High Court’s judgment in NEASA means that the focus for designated employers with their new employment equity plans must shift to monitoring compliance with their obligations under the EEA.
The EEA is almost 30 years old. Unfortunately, the approach adopted by our law makers has for many years been to penalise employers who fail to meet their affirmative action obligations, instead of incentivising them to comply. The legislature, sadly, seems content to let employers drown in a sea of regulation and compliance, without throwing them any life rafts. Perhaps a rethink is needed.
