An Employment Equity faux pas?

In terms of the now infamous section 15A, the Minister of Labour may, for the purpose of ensuring the equitable representation of suitably qualified people from the designated groups at all occupational levels in the workforce, by notice in the Government Gazette set numerical targets for any national economic sector.

At first glance, nothing untoward or peculiar emerges from this section. 

That is… until the final sectoral targets were published on 15 April 2025, together with the new employment equity regulations. The sectoral targets casually refer to five-year percentage targets, per male and female genders, applicable to the top four categories of employment in the workplace, for “designated groups”. By way of example, one of the sectoral targets appear as follows, which format is follows for 18 (eighteen) sectors:

When considering the EEA, as embellished with its most recent alterations, it is evident that the focus has shifted to compliance with the section 15A numerical targets. This is apparent from, inter alia, sections 15A, 20(2A), 42(1)(aA) and 53(6) of the EEA. These sections, again, buttress the focus on the numerical targets as published in terms of section 15A.

The sectoral targets take an aggregated approach to “designated groups”, treating them as a single category without distinguishing between sub-groups with different histories of systemic exclusion. Importantly, the definition of “designated groups” has remained unchanged and still reads as follows:

“black people, women and people with disabilities who —

• are citizens of the Republic of South Africa by birth or descent; or
• became citizens of the Republic of South Africa by naturalisation —
• before 27 April 1994; or
• after 26 April 1994 and who would have been entitled to acquire citizenship by naturalisation prior to that date but who were precluded by apartheid policies”

Accordingly, the term “designated groups” includes, as it always has in the past, South African citizens (i) who are white women and (ii) males and females of all races who suffer from disabilities.

On this basis, a designated employer could, in theory and on a literal interpretation, satisfy the new sectoral targets, by employing only white females and white males who suffer from valid and acceptable disabilities, since both these categories of persons fall within the definition of “designated groups”.

This undesirable, albeit hypothetical scenario, is however, somewhat tempered by section 42 of the EEA (assessment of compliance), together with regulation 9(5) of the EEA regulations published on 15 April 2025:

• section 42(1)(a) provides that, in determining whether a designated employer is implementing employment equity in compliance with the Act, the Director-General or any person or body applying the Act “may” (not “must”), in addition to the factors stated in section 15, take into account the extent to which suitably qualified people from and amongst the different designated groups are equitably represented within each occupational level in that employer’s workforce in relation to the demographic profile of the national and regional economically active population (“EAP”);
• regulation 9(5) provides that, when developing EE Plans and setting annual numerical targets in their workplaces in terms of section 20(2) of the EEA, designated employers must “take into account”:
• their workforce profile;
• the relevant 5-year sectoral numerical targets; and
• the applicable EAP.

However, section 42(1)(a) is cautiously worded and clearly not peremptory, as indicated by the use of the term “may”. In practice, the application of this provision is neither visible nor consistently enforced—it seldom features in open regulatory engagements and, at best, appears to be considered behind the scenes, perhaps during the review of designated employers’ annual reports. Similarly, regulation 9(5) merely requires that the applicable EAP “be taken into account”, but it does not go so far as to mandate that the EAP be applied or followed. Against the above, the apparent (on the face of it) faux pas in the new sectorial targets (and relevant sections of the EEA), by referring to “designated groups” as opposed to “black people” (as defined), raises some interesting questions and conundrums:

• will compliance with the sectoral targets only, be sufficient to constitute compliance with the EEA?
• have the sectoral targets diminished the incentive to employ black people?
• have the sectoral targets unintentionally achieved the opposite of their intended outcome?
• which category of persons is more important in terms of the EEA: designated groups VS black people?
• what is the position, risk and associated consequence if a designated employer complies only with the sectoral targets, but not the EAP, with the result that its workforce is not transformative or representative of the EAP, but yet clearly complies with the sectoral targets?
• are the sectoral targets and EAP reconcilable with one another? 

Challenges to sectoral targets

During 2025, there has been considerable ire and uproar from various factions within the country, in response to the sectoral targets and the Minister’s ability unilaterally to set and impose such targets on designated employers. However, has this apparent faux pas been carefully considered and appreciated, or has it simply been overlooked on account on focusing primarily on the Minister’s ability to “set” and thrust numerical targets, almost akin to quotas, upon designated employers?

Simply put, the attainment of the sectoral targets could be abused and skewed by, theoretically, employing white females and white males who suffer from legitimate and acceptable disabilities, since both these categories of persons fall within the term “designated groups” and would thereby contribute to the attainment of the targets. Accordingly, the risk arises that, in attaining the targets in this unintended fashion, any prior gains on transformation and equitable representation, from a race perspective, will potentially be reversed and/or diminished, which would then expectedly culminate in backlash from the other historically oppressed category of persons, such as black people.

These targets will not, on the face of it, pay credence to the different characteristics of the different categories of historically oppressed persons, which could result in lobsided hiring habits that would lead to those who have been more intensively oppressed, at best, not receiving the proportionate economic and employment assistance needed (since an employer does not benefit from hiring a heavily oppressed group more so than a comparatively more lightly-oppressed group). At worst, the more heavily historically oppressed and marginalised groups (such as African persons) may ultimately receive less assistance from the sectoral targets.

A practical way forward?

This leaves us with a pressing question: will this apparent oversight be left unaddressed, or will the legislature and/or the Minister take steps to clarify and resolve the resulting ambiguity, uncertainty, and potentially far-reaching consequences?

Of course, in the interim and despite what is set out above, it would be wise for designated employers to treat the sectoral targets as one of several compliance tools, rather than the sole benchmark. In our view, designated employers should continue aligning their workforce with  the EAP targets, either nationally or provincially, since this has always been the EEA’s main objective and focus, and correlates with its preamble and overall goals.  This approach not only supports the spirit of the EEA but also guards against reputational risk and potential future regulatory interpretation.