The DA challenged the Employment Equity Amendment Act at the Gauteng High Court, Pretoria, arguing that the law would worsen the unemployment rate.
Image: Oupa Mokoena / Independent Newspapers
The DA is challenging the constitutionality of of the new draft employment equity targets proposed in the recently gazetted Employment Equity Amendment Act.
Section 15a of the Employment Equity Amendment Act seeks to introduce numerical targets for the representation of black people, women and people with disabilities in companies with more than 50 employees.
Advocate Ismail Jamie SC representing the DA on Tuesday in the Gauteng High Court, Pretoria, argued that rigid racial quotas are harming employment opportunities.
He said that the previous iteration of the Employment Equity Act (EEA) 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 said that a woman looking for work in the financial sector in Gauteng can only be employed if she is coloured while an Indian women in the financial sector would struggle to find employment under the draft numerical targets in the Employment Equity Act (EAA).
Attorneys representing the DA said the party is challenging 'job-killing quotas'.
The DA contends the amendments to the EEA replace a context-sensitive approach, where employers set their numerical targets for employment equity, with a rigid, one-size-fits-all system of minister-determined targets. Non-compliance could result in severe penalties.
The DA argues this violates Section 9 of the Constitution, which governs equality and affirmative action. While Section 9(2) permits affirmative action, it must be approached cautiously and not unduly infringe on dignity or establish absolute barriers.
The DA asserts the Amendment Act's mandatory targets are blunt and rigid, potentially amounting to unconstitutional quotas.
Furthermore, the DA claims the Amendment Act is entirely invalid due to incorrect tagging during the parliamentary process. Bills substantially affecting provinces should follow Section 76 of the Constitution, but this Bill was passed under Section 75.
"The targets are so rigid or so rigidly applied that they constitute a quota, that is not constitutional," Jamie said, adding that it also affected the dignity of those who were affected.
He said that different employers in a particular sector have different employment needs based in their local markets.
"Section 85a permits them to lump all these employees together and force them to hire the same specified ratio of various race and gender combinations, which is what it does."
He said this particular piece of legislation 'has the potential to create an absolute barrier for members of particular racial groups in a particular area. This is fundamental to our challenge," Jamie said.
While the party’s main argument was that Section 15a of the amended act violated the rights of coloureds, Indians and white people, another argument was that the draft law was tagged incorrectly, therefore making it invalid.
The party, through its lawyers, argued that the EEA should be declared unconstitutional as it was tagged under Section 75 and not Section 76.
"What was a careful, considered approach to the impression of achieving world representativeness has now been turned into one where targets are set by the national minister," Jamie said.
The case is ongoing with the State’s argument on behalf of Minister of Employment and Labour Nomakhosazana Meth expected to make the case that the DA's challenge is an attempt to reverse progress made since 1994 and maintain the unfair status quo.
"The Amendment Act empowers the minister to set numerical targets for equitable representation after consulting relevant sectors and with the advice of the Commission," Meth said last week.
She further emphasised that the Amendment Act introduces flexible employment equity targets, allowing designated employers to set annual numerical targets in their employment equity plans, which must follow sectoral targets.
She accused the DA of sabotaging transformation goals pursued since the end of apartheid.