New equity targets are constitutional, counsel for labour minister tells court

Mail & Guardian

06-05-2025

Minister of Labour and Employment Nomakhosazana Meth. (File photo)
Fana Nalana SC on Tuesday told the Pretoria high court it was not unconstitutional for the minister of employment and labour to set numerical redress targets for companies.
Appearing for Minister Nomakhosazana
Ismail Jamie SC, for the DA, argued that the Act imposed rigid, one-size-fits-all sectoral targets, whereas affirmative action legislation should be carefully crafted to avoid an attack on the dignity of those who did not belong to the preferred demographic group.
Jamie said whether an affirmative-action measure is constitutionally permissible depends on the context.
'If the amendment Act comes into effect, every designated employer would have to follow numerical targets set by the labour minister, regardless of the degree of underrepresentation it suffers from and its ability to remedy that underrepresentation,' he said.
Enforcement of demographic targets unfairly discriminated against coloured and Indian people, particularly in provinces such as Gauteng, Jamie argued.
It would be difficult for Indian professionals to find jobs in Gauteng because demographically they were a minority in that province, and anywhere else except KwaZulu-Natal.
The DA's labour spokesperson, Michael Bagraim, on Monday told a media briefing ahead of the court hearing that the regulations gazetted by Meth could see companies let staff of a particular demographic go to comply with the prescripts of the new Act and to avoid steep fines.
Therefore, he said, the Act risked worsening employment, which is just below 32%.
Bagraim and DA federal council chairperson Helen Zille said the DA believed affirmative action policies had already caused extensive harm to the economy over decades, because laws aimed at racial redress were exploited by the corrupt.
Speaking to the
Mail & Guardian
, Nalana said it was not true that the minister would impose inflexible quotes, because companies would be given leeway if they were able to provide reasons why they could not comply.
'For instance, [a reason could be that] I couldn't get the number of people that we are looking for in the top five positions but I tried.
'It doesn't mean if you don't comply then that's it and you are now going to be fined and lose your contracts, which is the narrative that is being pushed — that this is going to be draconian and the minister is going to go there and say: 'You do this or you are out'.'
Under the Act, companies' level of compliance would be checked every five years, he added. The department would then determine whether their targets should be revised up or down.
'The minister can set sectoral targets to say, these are the targets you must aim for over five years. We say he can do that because that is part of his job. He must make sure that affirmative action thrives and that barriers are destroyed so that people can rise in the organisation.'
Nalana added that the law has for some time made provision for companies that did not meet affirmative action targets to be fined.
He told the court that there was no risk of current employees being fired because they belong to a certain group.
'You have to come up with ways to say, maybe if somebody is retiring, you replace them, you get a new candidate who is black and that is why it is left to you on how you do this. The minister will not say 'Hire this one, fire this one'.'
He said the ministry was not going to venture into a scenario raised by the DA of members of a particular demographic struggling to find work in a particular sector in a province.
'We are not going to argue about the examples the applicant raised about an Indian lady who wants to apply for a job in Gauteng but because the quotas as they call it have been exhausted that lady must now move to KZN.'
Judgment has been reserved.