• 1 SabinetLaw, « Employment Equity Amendment Bill Under the Spotlight », January 12, 2023.
• 2 Ibid.

1In May 2022, parliament in South Africa « gave the green light » to the Employment Equity Amendment Bill B14B - 20201. The Bill, which amends the provisions of the Employment Equity Act 55 of 1998 (the EEA), currently awaits presidential assent, and it is anticipated that the amendments will come into force on 1 September 20232.

• 3 Other relevant legislation includes the Promotion of Equality and Prevention of Unfair Discriminati (...)
• 4 Section 9(2) of Constitution of the Republic of South Africa, 1996 provides that « [e]quality inclu (...)
• 5 For context on the need for affirmative action, and for an overview of the statutory framework in S (...)
• 6 « Equality » is defined in section 1 of the PEPUDA to include « equality in terms of outcomes ».
• 7 Section 2(b) of the EEA.

2The EEA forms part of the non-discrimination law framework in South Africa3, underpinned by a Constitutional commitment to substantive equality4. The EEA includes provisions for the implementation of affirmative action measures in the workplace5, and specifically, Chapter III of the EEA is designed to achieve equality of outcome6 through the implementation of affirmative action to « redress the disadvantages in employment experienced by designated groups (…) to ensure their equitable representation in all occupational levels in the workplace »7.

• 8 The EEA currently identifies the following « designated employers », who are required to implement (...)
• 9 Section 42(a) of the EEA.

3To achieve equitable representation « designated employers »8 are required to comply with the affirmative action provisions of the EEA, and must implement affirmative action measures until such time as the employer’s workforce is equitably representative at each occupational level « in relation to the demographic profile of the national and regional economically active population [EAP] »9.

• 10 The CEE is established by Part IV of the EEA and its functions include advising the Minister on pol (...)
• 11 Commission for Employment Equity (CEE) 21^st Annual Report (2020-2021), p. 6. For a review of an ear (...)
• 12 Employment Equity Amendment Bill B14B, 2020, p. 6 (§ 1).
• 13 « Black people » is defined as « a generic term which means Africans, Coloureds and Indians ». Sect (...)
• 14 Currently employers, in consultation with trade unions and employees, determine the employer’s targ (...)
• 15 Section 53 of the EEA.
• 16 Section 8 of the EEA, as the Council « does not have the capacity or procedures to undertake this c (...)
• 17 Section 14 of the EEA.

6The Commission for Employment Equity (CEE)10 has expressed concern with the slow pace of transformation in terms of race and gender demographics in the workplace and indicates that the Amendment Bill has been informed by recommendations « to speed up the pace of transformation »11. The Memorandum on the Objects of the Amendment Bill identifies the purpose of the Bill as being four-fold12. The first of the objects is to empower the Minister of Labour « to determine sectoral numerical targets for the purpose of ensuring the equitable representation of suitably qualified people from designated groups (blacks women and persons with disabilities)13 at all occupational levels in the workforce »14. Secondly, the Amendment Bill seeks to operationalise a provision of the EEA15 that requires proof of compliance with the provisions of the EEA by way of a certificate issued by the Minister of Law as a condition for third parties seeking to do business with the state. Thirdly, the Amendment Bill removes a requirement for the Health Professions Council of South Africa to certify psychological testing and similar assessments of employees16; and fourthly the Bill (« to reduce regulatory burden on small employers ») removes a provision in the EEA17 that permitted reporting on voluntary compliance by smaller employers with the affirmative action provisions of the EEA.

• 18 An opposition party Member of Parliament has referred to the Bill as a « pernicious piece of social (...)
• 19 S. Gaibie and P. Naidoo, « The Employment Equity Amendment Bill 2018: Grappling with an Evaluation (...)
• 20 S. Fredman, « Reimagining power relations: Hierarchies of disadvantage and affirmative action », Ac (...)

7Response to the Bill has been mixed, and in many respects the reaction has been critical18. In particular, the focus of the EEA and the Bill on achieving proportionate representation based on gender and race demographics has raised concerns that socio-economic factors have been overlooked, with scholars generally calling for « a more nuanced, contexualised approach instead of one that is mandatory, rigid and numerical »19. This echoes Fredman’s argument that « status [race and gender] should not be regarded as simply a proxy for socio-economic disadvantage » and that achieving substantive equality requires more that « simply changing the racial or gender composition of existing structures »20.

• 21 In this regard, the EEA 17 form in the Draft Regulations, 2018 identifies the following 18 sectors: (...)

8The Amendment Bill reflects a policy shift towards a quota system for affirmative action measures, with quotas to be determined at a sectoral level by the Minister of Labour21. Whereas section 15 of the EEA currently provides a relatively flexible framework for individual employers to determine appropriate affirmative action measures and targets and expressly does not require quotas, s 15A, introduced in the Bill, empowers the Labour Minister, through a process of consultation, to determine and set sectoral numerical targets within a sector.

• 22 For a contrary view, see M. Brassey : « The Employment Equity Act: Bad for employment and bad for e (...)
• 23 SAHRC, « Achieving Substantive Economic Equality through Rights-based Radical Socio-economic Transf (...)

9While scholars in South Africa generally support the implementation of affirmative action measures22, there is a concern that the approach is increasingly rigid and that the amendments fail to prioritise the least advantaged persons within the groups entitled to protection. Pertinently, it would seem that the amendments fail to address the South African Human Rights Commission (HRC) concerns that the EEA’s « definition of “designated groups” and South Africa’s system of data disaggregation is not in compliance with constitutional or international law obligations (…) [and that] (…) Government’s failure to measure the impact of various affirmative action measures on the basis of need and disaggregated data, especially the extent to which such measures advance indigenous peoples and people with disabilities, likewise violates international law obligations »23.

• 24 HRC Report 2016, p. 50.

11In the context of persons with disabilities, the HRC highlights the limited employment opportunities and the intersectional experience of discrimination for persons with disabilities24.

• 25 Art. 2 of the CRPD.

12Although South Africa has ratified the UN Convention on the Rights of Persons with Disabilities, 2007 (CRPD), the provisions of the CRPD have yet to be fully domesticated in South African law, and the Amendment Bill is a missed opportunity to do so, and in particular to legislate the CRPD principle that « discrimination on the basis of disability » « includes all forms of discrimination, including denial of reasonable accommodation »25.

• 26 HRC Report 2016, p.34.
• 27 Ibid. Although the Traditional and Khoi-San Leadership Act 3 of 2019 was recently enacted, it is no (...)
• 28 Already in 2005, the UN Special Rapporteur on the human rights and fundamental freedoms of indigeno (...)

13In the context of indigenous communities in South Africa, the HRC has expressed concern with the « virtual political and social invisibility » of the Khoi and San persons as indigenous people in South Africa, and has called on Government « to take urgent steps to address the current situation in relation to the Khoi and San persons in South Africa »26. The current legislative framework for affirmative action in essence adopts an apartheid South Africa approach in which Khoi and San persons are « forcibly classified as “Coloured” »27, and the HRC calls for urgent steps to address this28.

• 29 The EAP statistics reflect white, coloured, African and Indian South Africans, without reflecting p (...)
• 30 CEE 22nd Annual Report (2021-2022).
• 31 Clause 12B of the Employment Services Amendment Bill, 2021.
• 32 Stellenbosch University, « Submission on the Social Justice Implications of Draft National Labour M (...)

14Finally, in the context of foreign nationals, the EEA limits the beneficiaries of affirmative action to South African citizens, with the obligation on employers being to ensure that their workforce mirrors the race and gender demographics of the economically active South African population at each occupational level29. The CEE specifically « urges employers to give preference to South African Nationals in order to deal with the substantial high levels of unemployment in our country »30 and expresses support for related policy and proposed legislation that will impose a « a maximum quota for the employment of foreign nationals »31. However, there are concerns with this approach and whether the restrictions on the employment of foreign nations comply with South African’s international law obligations, and the extent to which these instruments unfairly discriminate against foreign nationals32.

• 33 HRC Report 2018, noting, p. 34, that « indigenous people, those whose ethnic descent may be from mi (...)
• 34 HRC Report 2018, p. 33. The HRC references the CERD General Recommendation 32: « The meaning and sc (...)
• 35 HRC Report 2018, p. 35.
• 36 HRC Equality Report 2018, p. 30. In this regard, the CERD General Recommendation 32 (§ 17) provides (...)

15The HRC has emphasised deficiencies with the EEA race classifications that are at the heart of the design of affirmative action measures in South Africa33, and has raised concerns that the implementation of the EEA may be « leading to new imbalances »34. The HRC points out that the insufficient disaggregation of data results in « measures [that] are not capable of being targeted at the most vulnerable groups in society (…) [and cannot] (…) respond to new forms of discrimination, or to compounded discrimination »35; adding that « measures should be designed and implemented on the basis of need », which requires a consideration of socio-economic conditions36.

• 37 CERD General Recommendation 32 (§ 16) states that « [s]pecial measures should be appropriate to the (...)

16The Amendment Bill introduces substantial changes to the regulatory framework for affirmative action, yet the design and stated purpose of the Bill have not addressed concerns regarding the alignment of the EEA with prevailing international law principles on the implementation and termination of special measures37. This is a matter of public interest and as such the forthcoming sectoral numerical targets and revised employment equity regulations require careful scrutiny from the legislature and stakeholders alike to ensure that the amendments are in fact on target.