Employment Equity: Legal challenges proceed despite ConCourt setback

The Constitutional Court has declined Sakeliga’s and NEASA's urgent application for direct leave to appeal a flawed High Court judgment in our Employment Equity matter.

The court's decision pertains solely to whether the matter warrants urgent and direct access to the Constitutional Court and does not constitute a ruling on the merits of the interdict initially sought in the High Court.

Meanwhile, in a positive development, Sakeliga and NEASA were successful this week in obtaining an order from the Pretoria High Court compelling the Minister of Employment and Labour to deliver the record and reasons of decision in the setting of Employment Equity sectoral numerical targets. These records are essential for proper judicial review of the department's race and gender quotas.

The Minister's long and continued failure to comply with the rules of court necessitated a court order compelling compliance. The court granted a punitive cost order (on an attorney-client scale).

Litigation continues

Notwithstanding the Constitutional Court's refusal, our application for leave to appeal at the Supreme Court of Appeal (SCA), which was brought in parallel to the direct appeal to the Constitutional Court, is still proceeding.

Meanwhile, the substantive constitutional challenge of the relevant Employment Equity Act amendments, regulations, and targets remains firmly alive and is proceeding.

Sakeliga’s and NEASA’s legal challenges against the Employment Equity quotas are split into two parts:

• Part A is an application for an interdict to halt the implementation of the EE targets and relevant regulations until the substantive constitutional challenge (Part B) is resolved.

• Part B is a review application in which we seek to have several sections of the Employment Equity Act declared unconstitutional and have the Minister of Employment and Labour’s regulations and sectoral numerical targets set aside, on grounds of procedural irregularity, irrationality, and unconstitutionality.

This direct application to the Constitutional Court for leave to appeal pertained to Part A of Sakeliga’s and NEASA’s legal challenge and follows the High Court's deeply flawed decision in August 2025 to deny an urgent interdict against the EE regulations and numerical sectoral targets.

Background

The Employment Equity quotas, which became operational on 1 September 2025, require every designated employer with 50 or more employees to submit Employment Equity Plans that commit to conforming their staff profile to the racial and gender demographic profile of the country.

These requirements are irrational and harmful. They are unacceptable and actually impossible for most businesses to comply with, pose a grave threat to operational viability over the medium term, greatly hamper business planning and investment, and will be disastrous for employment and job creation.

Sakeliga and NEASA will continue to resist these unconstitutional employment quotas for the benefit of employers, employees, and all communities across the country.

Resources:

• Constitutional Court order
• Sakeliga and NEASA's recommendations to employers