Ramaphosa faces legal storm over South Africa’s new race laws
Trade union Solidarity says it will approach South Africa’s courts to hold President Cyril Ramaphosa in contempt, if he does not withdraw the recently published Employment Equity laws and sectoral targets.
The union argues that Ramaphosa, as head of state, represents the government in the matter, where it says the state is in breach of a settlement agreement signed over the laws in 2023.
The union said the published laws and targets go against the agreement by omitting certain provisions and re-framing others, making them null.
As a first step, Solidarity wrote a letter of demand to the President urging him to implement the agreement in full to avoid legal action.
Solidarity and the Department of Employment and Labour signed a ‘historic’ settlement agreement on 28 June 2023, establishing clear boundaries for the Employment Equity laws.
The agreement stemmed from a mediation process that started after Solidarity filed a complaint with the International Labour Organisation (ILO) against the South African government.
This was over the “rigid” application of affirmative action in South Africa, and the ever-narrowing conditions under which businesses must operate.
Instead of getting directly involved, however, the ILO recommended that the Commission for Conciliation, Mediation and Arbitration (CCMA) facilitate the dispute.
What resulted was the agreement signed by Solidarity and the department, under the supervision of the ILO.
It included specific criteria that need to be taken into account when applying the laws, and the specific conditions that employers can use as reasons for not complying with the laws.
It also specified that the Economically Active Population was only one of the criteria to be considered when applying the Employment Equity regulations, and businesses couldn’t be forced to fire employees.
According to the labour department, the agreement was in line with the Constitution and the new Employment Equity Amendment Act and standing BEE laws.
Legal experts said the agreement was superfluous.
However, Solidarity said the final regulations that have now come into effect only include some of these provisions, with others, like not forcing businesses to dismiss workers, left out.
“The government unilaterally removed provisions, such as that race laws must be temporary, that no one may be fired based on race laws, and that employers are obligated to take into account the inherent requirements of a job and the pool of available skills,” Solidarity said.
Solidarity Chief Executive Dr Dirk Hermann said that the union had gone to great lengths to work with the government to resolve the dispute through local mediation, but the state had proven to be an unreliable partner.
“The breach of this agreement came after the government also breached an agreement with Solidarity, at Nedlac, regarding the Basic Education Laws Amendment (BELA) Act,” he said.
“It is worrying that the sections that were omitted, among other things, stipulate that no one may be fired based on race laws, that race laws must be temporary, and that skills and the inherent requirements of the job must be taken into account.”
In addition to the contempt of court case, Solidarity said it would also challenge the rationality and legality of the regulations in court.
Solidarity will also once again approach the ILO to file a complaint against the government for breaching an agreement facilitated by the organisation.
What was taken out
According to Solidarity’s letter of demand to Ramaphosa, the published regulations go against the “spirit of the agreement” signed in 2023.
While the criteria signed in the agreement relating to the application of Employment Equity and justifiable grounds for not complying are in the laws, Solidarity argues that they are not compulsory, but rather discretionary.
“Employers are still obliged to use the Economically Active Population as a criterion for collecting information and preparing their employment equity plans,” it said.
“This linguistic shift is not innocuous; it makes mandatory obligations appear illusory and significantly undermines the legal and practical force of the agreement.”
“This deviation is not merely semantic. It reflects a substantive repudiation of the compromise reached in good faith between the parties and endorsed by a competent Court.”
Further to this, the union said that the regulations reintroduce, under a different guise, rigid demographic quotas, which the settlement agreement expressly prohibits.
“The requirement that employers must achieve specific sectoral targets remains an inflexible goal, not supported by any rational basis, which amounts to the imposition of a quota system,” it said.
The union has given the president until 30 April to withdraw the laws before it approaches the Labour Court to take the matter further.
Settlement agreement versus the Employment Equity Regulations, 2025
| 2023 Agreement | Employment Equity Regulations, 2025 |
|---|---|
| a) Affirmative action is a coherent packet of measures, of a temporary nature in line with the Constitution, aimed specifically at correcting the position of members of a target group as defined in the Employment Equity Act [55 of 1998 (EEA)] in the workplace, in order to obtain effective equality. | N/A |
| b) Affirmative action shall be applied in a nuanced way, as embodied in this agreement, and the economically active population statistics will only be one of many factors that will be taken into account in the compliance analysis of affirmative action in any workplace. | When determining their Annual EE targets towards achieving the 5-year sectoral numerical targets, a designated employer must set numerical targets for all designated groups in each of the four upper occupational levels in relation to the applicable sector targets and EAP, and for persons with disabilities. |
| c) No absolute barrier may be placed upon any employment practices affecting any persons from any group. | Designated employers are not required to take any decision regarding an employment policy or practice that would establish an absolute barrier to prospective or continued employment or advancement of people not from designated groups. |
| d) and e) see below | See below |
| f) No penalties or any form of disadvantage will be incurred by the employer if in the compliance analysis of affirmative action in any workplace, there are justifiable/reasonable grounds for not complying with the targets. | A designated employer will incur no penalty or any form of disadvantage if there are reasonable grounds to justify its failure to comply with any target, as contemplated by section 53(6)(b), read with section 42(4), of the Act. |
| g) No employment termination of any kind may be effected as a consequence of affirmative action | Designated employers are not required to take any decision regarding an employment policy or practice that would establish an absolute barrier to prospective or continued employment or advancement of people not from designated groups. |
d) The criteria that must be taken into account when applying employment equity include:
| 2023 Agreement | Employment Equity Regulations, 2025 |
|---|---|
| Inherent requirements of the job | The inherent requirements of a particular job |
| The pool of suitably qualified persons | The pool of suitably qualified persons |
| The qualifications, skills, experience and the capacity to acquire, within a reasonable timeframe, the ability to do the job | The formal qualifications, prior learning, relevant experience or capacity to acquire, within a reasonable time, the ability to do the job |
| The rate of turnover and natural attrition in the workplace | The rate of turnover and natural attrition within the workplace |
| Recruitment and promotional trends within a workplace | Recruitment and promotional trends within a workplace |
e) Justifiable and reasonable grounds for not complying with the targets include:
| 2023 Agreement | Employment Equity Regulations, 2025 |
|---|---|
| Insufficient recruitment opportunities | Insufficient recruitment opportunities; |
| Insufficient promotion opportunities | Insufficient promotion opportunities; |
| Insufficient target individuals from designated groups with the relevant skills, qualifications and experience | Insufficient target individuals from designated groups with relevant formal qualifications, prior learning, relevant experience or capacity to acquire, within a reasonable time, the ability to do the job |
| CCMA awards or court orders | The impact of a CCMA award or court order |
| Transfer of business | A transfer of a business |
| Mergers / Acquisitions | Mergers or acquisitions |
| Impact on business economic circumstances | The impact of economic conditions on the business |
Loading ...
