High court hears DA's case against employment equity amendment in critical examination of transformation
'Leave good enough alone.' This was the Democratic Alliance's (DA) argument in the Gauteng Division of the High Court on Tuesday, 6 May 2025, as the party challenged the constitutionality of the new draft employment equity targets proposed in the recently gazetted Employment Equity Amendment Act.
The courtroom was filled with members of the public, including prominent individuals like DA MP Willie Aucamp and Cosatu Secretary-General Solly Phetoe.
The DA's legal representative, Ismail Jamie, told the court that the previous iteration of the Employment Equity Act struck an appropriate balance between fostering transformation and protecting the rights of undesignated groups in that it was flexible, prohibited quotas, and gave employers the power to set their own targets based on their specific circumstances.
Jamie argued that the amended act violated Section 9 of the Constitution because it 'replaces a nuanced, flexible system with one that is blunt and rigid'.
In April, the Department of Employment and Labour gazetted the amendment act, which introduced five-year numerical targets for the top four occupational levels (junior, middle, senior and top management) across 18 sectors, ranging from finance to manufacturing.
'Rights violated'
While the party's main argument was that Section 15a of the amended act violated the rights of coloureds, Indians and white people, another key argument was that the draft law was tagged incorrectly, therefore making it invalid.
Jamie argued that the amendment bill was passed under Section 75 (which excluded provinces) of the Constitution instead of Section 76 (which governs legislation on a national level). Section 76 governs how bills affecting provinces must be passed, and its focus was to ensure that provincial interests were considered.
The party's representative maintained that if the court found that Section 15A of the amended act was indeed invalid because it had been tagged incorrectly, then a natural consequence of the finding would be that the entire amended act be deemed invalid on a technicality.
The DA also claims that:
Section 15A violates Section 9 of the Constitution by enabling discrimination based on race.
The minister's discretion under Section 15a lacks clear legal standards, contravening the Dawood principle of administrative law.
The implementation of demographic targets disproportionately prejudices coloured and Indian communities in certain provinces, particularly the Western Cape and KwaZulu-Natal.
Exemptions for small businesses and the government's settlement in the Solidarity case suggest an acknowledgement of the potential economic harm of the quotas.
Drama unfolds
While the proceedings were relatively calm, they were unceremoniously interrupted by two unidentified individuals, who said that they were aggrieved parties who deserved to submit to the court.
In a dramatic turn, the men told the judge that they would consider the case a mistrial if the judge refused to hear them, as Parliament had ignored their interests when drafting a law that worked against their interests.
The judge refused to hear them and summarily dismissed the pair.
The case is ongoing with the Department of Employment and Labour's representatives presenting the State's argument. DM
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