Repealed legislation from 1950 now used to classify employees by race

Sakeliga and NEASA can confirm that South Africa’s Department of Employment and Labour is instructing employers to apply the long-repealed 1950 Population Registration Act to racially classify their employees.

The unlawful instruction, delivered by the Department in a letter to NEASA on 5 December 2025, is a crucial revelation that the state has no legal means to classify employees by race and intends to place the burden of its racial classification policies on businesses rather than assuming the responsibility and concomitant legal and political risks itself.

The Population Registration Act, before it was repealed in 1991 by the National Party government at the time, established a state-run racial classification scheme in South Africa. The scheme provided for definitions of race, requiring state officials to classify every person in South Africa accordingly, subject to the right of appeal to the state’s race classification boards.

Whereas under the Population Registration Act in 1950, the state itself assumed responsibility for race classification, 75 years later, the ANC-led government seeks to resurrect state-mandated racial classification, but this time by forcing employers rather than state officials to carry it out and bear the associated local and international legal risks.

Context of the instruction

The instruction comes as part of the government’s attempt to enforce the Employment Equity Amendment Act of 2023.

Under the Act, employers in South Africa have been required to comply with strict employment quotas – called “sector numerical targets” in the statutes – since September 2025 based on race, sex, and disability. The quotas require employers to, among other things, ultimately limit the percentage of their white male employees to as little as 4%. For more information on the quotas, click here.

Sakeliga and NEASA are currently challenging the legislation and the subsequent regulations through urgent litigation in the Supreme Court of Appeal and the Constitutional Court simultaneously.

In pursuit of the state’s goal to have all employment conform to its demographic quotas, the Employment Equity Act and its regulations make it a legal obligation for employers to ensure accurate classification of the race, sex, and disability status of their employees. While employers may rely on information provided by employees, employees are not legally required to offer their own race and disability classifications. Even where employees do self-classify, employers remain liable for the accuracy of the information relayed to the Department of Employment and Labour in the employer’s compulsory employment equity plan.

Misstatement by an employer of the race or disability status of its employees, or not meeting the employment quotas, makes the employer liable for penalties ranging from fines of R1.5 million or 2% of turnover for first-time offenders, to a maximum of R2.7 million or 10% of turnover for repeat offenders, whichever is higher.

Despite the severe legal liability, neither the Employment Equity Act nor any of its regulations published so far, contained instructions to employers or employees on what constitutes accurate and inaccurate classifications of race and disability. In order to protect employers against the legal risks associated with classification, NEASA sought to obtain instructions from the Department, resulting in the Department’s confirmation that the Population Registration Act of 1950 should form part of the criteria and historical data applied in determining the race of employees.

It is Sakeliga and NEASA’s position that employers should not be required to classify their employees by race, that no legal mechanism to do so exists, and that both the requirement to classify and to meet the racial employment quotas contained in the Employment Equity Act are unfeasible, unconstitutional, and unacceptable.

Resources:

• Letter by the Department of Labour and Employment instructing employers to use the 1950 Population Registration Act. (5 December 2025)
• Letter by NEASA to the Department of Labour and Employment requesting guidance on racial classification. (4 December 2025)
• Letter by the Department of Labour and Employment informing an employer that it is legally required to racially classify its employees even if the employees refuse to co-operate. (25 November 2025)
• 5-minute explainer video of the new racial hiring quotas