{"id":845877,"date":"2025-12-10T11:30:00","date_gmt":"2025-12-10T09:30:00","guid":{"rendered":"https:\/\/businesstech.co.za\/news\/?p=845877"},"modified":"2025-12-10T14:36:32","modified_gmt":"2025-12-10T12:36:32","slug":"government-denies-forcing-employers-to-use-apartheid-laws-to-classify-workers-by-race","status":"publish","type":"post","link":"https:\/\/businesstech.co.za\/news\/business-opinion\/845877\/government-denies-forcing-employers-to-use-apartheid-laws-to-classify-workers-by-race\/","title":{"rendered":"Government denies forcing employers to use apartheid laws to classify workers by race"},"content":{"rendered":"\n

Business lobby group Sakeliga revealed this week that the Department of Employment and Labour wants employers in the country to use repealed apartheid-era laws to racially classify their employees.<\/p>\n\n\n\n

However, the department says this is not the case, labelling the claim as “incorrect” and “misinformation”.<\/p>\n\n\n\n

The blowout comes in the context of South Africa’s new Employment Equity laws, which require designated employers\u2014those employing 50 people or more\u2014across 18 segments in South Africa to plan how they will reach representative workforce targets over the next five years.<\/p>\n\n\n\n

The targets are percentages based on race, gender and disability, with the aim to make workforces more “demographically representative” of the population of South Africa.<\/p>\n\n\n\n

However, Sakeliga noted that South Africa has no legal means to classify employees by race, and employees in South Africa are not obligated to classify their own race or disabilities.<\/p>\n\n\n\n

Because of this, Sakeliga asked the DEL on what basis employers should then classify employees by race to meet the targets.<\/p>\n\n\n\n

In a letter sent to Sakeliga in response<\/strong><\/a>, the DEL told the group that businesses should use the Employment Equity Act, the Citizens Act and the 1950 Population Registration Act <\/strong>to racially classify employees.<\/p>\n\n\n\n

Specifically: “Employers must use the definition of the designated groups defined in the Employment Equity Act as amended, which must be read in conjunction with historical racial classification legislation, e.g., the Population Registration Act of 1950<\/strong>.”<\/p>\n\n\n\n

The Citizen’s Act <\/strong><\/a>makes no reference to classifying South Africans by race, while the Employment Equity Act <\/strong><\/a>refers only to “black people” as a generic term to refer to Africans, Coloureds and Indians.<\/p>\n\n\n\n

Neither set of laws gives employers any basis on which to classify workers by race.<\/p>\n\n\n\n

The 1950 Population Registration Act, meanwhile, was explicitly used by the apartheid government to classify South Africans by race.<\/p>\n\n\n\n

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\u2019s race classification boards.<\/p>\n\n\n\n

Classification was done on, among others, physical appearance, home language, social acceptability, and even habits. It was also the origin of the infamous “pencil test”.<\/p>\n\n\n\n

It was an incredibly damaging piece of law that underpinned and formalised apartheid’s racial segregation. It was repealed in 1991 as the dawn of democracy in South Africa approached.<\/p>\n\n\n\n

Now, more than 30 years after being excised from South African law, Sakeliga said these harmful apartheid definitions are making a comeback at the behest of the DEL, through the instruction it was sent.<\/p>\n\n\n\n

“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,” the group said.<\/p>\n\n\n\n

In a separate response to a business<\/strong><\/a>\u00a0inquiry about classification, the DEL also made it clear that businesses have no option in the matter and that employers will be required<\/span> to classify employees by race to comply with the laws.<\/p>\n\n\n\n

“Compliance with this requirement is a statutory responsibility and not subject to employer discretion,” the letter said.<\/p>\n\n\n\n

The department said that South Africa’s courts have repeatedly found that racial categorisation for the purposes of monitoring transformation is constitutionally recognised as legitimate.<\/p>\n\n\n\n

It forms part of the government’s exercise in redressing historical inequalities and thus remains constitutionally sound and legally binding, it said.<\/p>\n\n\n\n

Department of Employment and Labour Responds<\/h2>\n\n\n\n
\"\"<\/a>
Labour Minister, Nomakhosazana Meth<\/figcaption><\/figure>\n\n\n\n

BusinessTech asked the Department of Employment and Labour to confirm the legitimacy of the letters and to clarify or explain why it contained references to the repealed apartheid laws.<\/p>\n\n\n\n

Both letters were sent to the department to confirm their legitimacy.<\/p>\n\n\n\n

The DEL confirmed that the communications sent to Sakeliga did come from the department, but references to the 1950 Act were not instructions to use the Act itself.<\/p>\n\n\n\n

It said the claims made by Sakeliga to this effect are “incorrect”.<\/p>\n\n\n\n

“The Population Registration Act has no legal standing, and the Department neither references nor relies on it for any purpose,” it said.<\/p>\n\n\n\n

The department said that employers are required to comply solely with the Employment Equity Act, 1998, as amended, together with its published Regulations, Codes of Good Practice, and reporting guidelines.<\/p>\n\n\n\n

“The established and accepted method for EE reporting remains employee self-identification, supported by appropriate internal processes,” it said.<\/p>\n\n\n\n

“Assertions that the department is ‘resurrecting’ racial classification or exposing employers to legal or reputational risk are without basis.”.<\/p>\n\n\n\n

Explaining the mentioning of the 1950 Act in its communication, it said that reference was made to “data guided by historical legislation”, solely because the legal position in this area has been informed by the High Court.<\/p>\n\n\n\n

This was specifically the case in the Chinese Association of South Africa and Others v Minister of Labour and Others [2008] ZAGPHC 174<\/em> judgement. <\/p>\n\n\n\n

In that case, the High Court examined the historical racial classification of Chinese South Africans, including references to the 1950 Act and its 1967 amendment.<\/p>\n\n\n\n

Here, the court relied on this historical context to determine that Chinese persons were subjected to apartheid-era discrimination and therefore fall within the definition of \u201cBlack people\u201d for purposes of the Employment Equity Act, despite the 1950 Act already being repealed. <\/p>\n\n\n\n

“In taking it into consideration, the department is just following the directive of the court in the cited case,” it said.<\/p>\n\n\n\n

The department said its mandate is to “promote equitable representation in the labour market within the framework of South Africa\u2019s democratic legislation and not to revive discriminatory systems abolished more than three decades ago”.<\/p>\n\n\n\n

Challenging the laws in court<\/h2>\n\n\n\n
\"\"<\/a>
Sakeliga CEO, Piet le Roux<\/figcaption><\/figure>\n\n\n\n

Sakeliga is challenging the government’s Employment Equity targets in the Supreme Court and the Constitutional Court simultaneously.<\/p>\n\n\n\n

The group maintains that the targets are de facto racial quotas, which are unlawful, with the five-year aim to limit the hiring and placement of individuals based on race, particularly white males.<\/p>\n\n\n\n

The department has consistently hit back at the characterisation of the laws as rigid quotas due to the targets being flexible, being part of a long-term plan, and giving employers a multitude of justifications to be exempt.<\/p>\n\n\n\n

However, this does not remove the obligations for designated employers to report and file their Employment Equity Plans each year.<\/p>\n\n\n\n

Sakeliga said that the compulsory obligations set by the department, along with the extreme sensitivity around racial classifications, open employers up to massive liability.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

These range 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.<\/p>\n\n\n\n

“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,” Sakeliga said.<\/p>\n\n\n\n

“It is Sakeliga and NEASA\u2019s position that employers should not be required to classify their employees by race, that no legal mechanism to do so exists.”<\/p>\n\n\n\n

The group said that both the requirement to classify and to meet the racial employment quotas contained in the Employment Equity Act are unfeasible, unconstitutional, and unacceptable.<\/p>\n\n\n\n

DA spokesperson on employment and labour, Michael Bagraim, said that the party is “examining every legal avenue available” to put an immediate stop to the instruction.<\/p>\n\n\n\n

He added that the party is also pushing ahead with its own legal challenges to the Employment Equity Act and the government’s Employment Equity targets.<\/p>\n\n\n\n

This article has been updated to add the DEL’s further clarity on the letter and references to the 1950 Act.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

The Department of Employment and Labour says it is not resurrecting apartheid-era race laws, and that mention of the laws in its communications is being misconstrued.<\/p>\n","protected":false},"author":10,"featured_media":682095,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[4444,14851],"class_list":["post-845877","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-business-opinion","tag-department-of-labour","tag-sakeliga"],"_links":{"self":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts\/845877","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/comments?post=845877"}],"version-history":[{"count":13,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts\/845877\/revisions"}],"predecessor-version":[{"id":846044,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts\/845877\/revisions\/846044"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/media\/682095"}],"wp:attachment":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/media?parent=845877"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/categories?post=845877"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/tags?post=845877"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}