The High Court in Pretoria has dismissed an urgent application by the National Employers’ Association of South Africa (NEASA) and Sakeliga seeking to prevent the implementation of the numerical targets set in terms of the Employment Equity Act (EEA).
A consequence of the judgment is that from 1 September, “designated employers” must implement employment equity plans that align with the numerical targets.
Section 15A of the amended EEA, which became effective on 1 January 2025, empowers the Minister of Employment and Labour to identify national economic sectors and set numerical targets for them.
On 15 April, the minister, Nomakhosazana Meth, published Government Notice No. 6124, identifying 18 economic sectors and setting numerical targets, along with related regulations in Government Notice No. 6125.
The regulations set race and gender targets across 18 economic sectors at the top four occupational levels (top management, senior management, professionally qualified, and skilled technical). Designated employers – those with 50 or more employees – are required to align their workforce demographics with the targets, with potential fines and other penalties for non-compliance.
NEASA, which represents about 7 000 employers, and business lobby group Sakeliga jointly filed an urgent two-part application in July. Part A sought to interdict or suspend the implementation and enforcement of the numerical targets and related administrative regulations until the final determination of Part B. This part sought a judicial review of the minister’s procedural acts in setting the targets and challenged the constitutionality of the relevant sections in the EEA.
The thrust of the applicants’ case was that the minister did not consult, or failed to consult adequately, with employers before publishing the targets. They also contended that the targets were set arbitrarily.
They alleged the targets will result in mayhem, with large numbers of employees being displaced or dismissed from 1 September.
On 28 August, the High Court dismissed Part A of the application, which means that the regulations remain in effect pending the outcome of Part B, which is still to be heard.
The Court also dismissed an application by trade union Solidarity to be admitted as an amicus curiae (friend of the court).
The following day, NEASA and Sakeliga said the judgment was “deeply flawed”. They will appeal directly to the Constitutional Court to set aside the High Court’s decision and grant the interdict requested in Part A of the application. “For procedural reasons, this direct appeal will be supplemented with a parallel appeal to the Supreme Court of Appeal.” The two organisations will also proceed with Part B of their application.
Meth welcomed the judgment, saying it was “a significant affirmation of the department’s commitment to fostering inclusive and fair labour practices”.
“This ruling is a victory for equity, justice, and the rule of law. It affirms that the department has acted within its legal mandate to advance transformation in the workplace. We urge all employers to comply with the employment equity regulations and prepare for the submission of their 2025 EE reports,” Meth said.
The reporting period for 2025 employment equity reports opens on 1 September and closes on 15 January 2026.
Interdict and suspension are inappropriate
Judge Graham Moshoana found that neither interdiction nor suspension was appropriate relief.
Explaining why interdictory relief was inappropriate, Judge Moshoana cited the Constitutional Court in United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others (2022): an interdict is not a remedy for “the past invasion of rights”; it is appropriate only when future injury is feared.
The minister exercised her statutory powers, lawfully or unlawfully, in April. This was “a typical case of past invasion”, Judge Moshoana said.
The Constitutional Court, in Tshwane Metropolitan Municipality v AfriForum and Another (2016), held that one of the crucial requirements for an interim interdict is a reasonable apprehension that irreparable and imminent harm will eventuate if the order is not granted.
“Within the context of a restraining order, harm connotes a common-sensical, discernible, or intelligible disadvantage or peril that is capable of legal protection.”
The applicants alleged that mayhem would ensue when a designated employer sets numerical goals in compliance with the numerical targets set by the minister. “The alleged mayhem is not only indiscernible or unintelligible, but it is also one that is not capable of legal protection,” Judge Moshoana said.
He drew a distinction between the numerical targets, which are set by the minister, and the numerical goals, which are set by the designated employers. Numerical targets are numbers that the minister aims for in any sector. Numerical goals are numbers that a designated employer aims to achieve, as set out in the employment equity plan required by section 20(1) of the EEA.
“By way of example, a minister may aim for the appointment of 10 managers over a period of five years in a particular sector. A designated employer may aim to achieve the appointment of two of the 10 managers every year for a period of five years.”
Judge Moshoana said: “On the applicants’ version, the alleged mayhem will be caused by the setting of numerical goals as opposed to the setting of numerical targets. […] It is perspicuous that if any harm will occur, it is one which may be occasioned by the setting of numerical goals.”
He also refused to suspend the minister’s administrative action, holding it had no authority to suspend the lawful exercise of statutory power, because this would violate the separation of powers.
The applicants contended that the minister acted unlawfully, but that has yet to be determined, and Judge Moshoana commented that the prospects of the applicants succeeding with their judicial review case (Part B) are “extremely weak”.
Consultation was adequate
The Court interpreted section 15A, finding the minister’s consultation adequate and compliant.
The applicants contended that the minister failed to consult, or did not consult adequately, with employers and employees. Judge Moshoana interpreted the ordinary meaning of “consult” and “consultation” and the definition of “sector” in section 1 of the EEA (as amended).
The Act defines a sector to mean an industry or service or part of any industry or service. The applicants contended that sector must include only an employer and employees. “There is no merit in this contention because the legislature afforded the word ‘sector’ a technical meaning.”
Judge Moshoana said the Act defines a sector as “an industry or service or part of any industry or service”, which is not confined to employers and employees. A sector must include other stakeholders.
He said consultation – the process of seeking information or advice – is different to negotiation, which aims to achieve agreement. “The duty to consult requires no more than that the views of interested persons be obtained.”
There was evidence of a consultation process since 2019.
Section 15A does not prescribe when or how the consultation must happen – as long as it occurs before the minister exercises her powers. The applicants’ view that consultation must be similar to public participation envisaged in the Constitution and municipal legislation was incorrect, Judge Moshoana said.
Draft notice for comment not required
The applicants contended that the targets published in April 2025 differed drastically from the draft targets published in May 2023 and February 2024. Despite this, the April notice was not published for renewed public comment for at least 30 days, as required by section 15A(4) of the Act.
Judge Moshoana said interested parties, which included employees, were afforded an opportunity to comment on the 2023 and 2024 drafts. He said the 30-day period to comment should be reckoned from the publication of the 2023 and 2024 drafts.
“To the extent that the numerical targets set on 15 April 2025 are different from those set out in 2023 and 2024, this Court agrees with the minister that they are bound to differ. The 2023/24 numbers are proposed and not cast in stone. Logic dictates that the process of permitting remarks and expression of opinion must lead to change of data. This Court is not bemused by the change of numbers after the 2023/24 notices; it was bound to happen. It serves as proof of permitting remarks and expression of opinions. The 2023/24 notices qualify as drafts of any notice within the contemplation of the sub-section.”
Numerical targets were not set arbitrarily
The Court rejected the applicants’ argument that the numerical targets were set arbitrarily.
Section 15A endows the minister with discretion to set different targets based on occupational levels, sub-sectors, regions, or any relevant factor. The minister is required to engage in sectoral consultations, obtain advice from the Commission for Employment Equity (CEE), and have regard for the Standard Industrial Classification Codes published by Statistics South Africa.
“With all the above statutory safety pins, it is difficult to fathom arbitrariness in the process of setting numerical targets,” Judge Moshoana said.
The applicants contended that the arbitrariness of the 2025 targets is shown particularly in those sectors in which women will be substantially disadvantaged by these targets.
Judge Moshoana said the Court could not be called upon to determine whether the minister’s calculations were arbitrary. “More importantly, owing to the fact that the legislature chose the minister as a functionary to set the numerical targets, this Court cannot determine a specific sectoral numerical target that should apply. Such would equate judicial overreach and a disrespect of the separation of powers doctrine.”
Further, Judge Moshoana found that the alleged disadvantage to women arises not from the minister’s targets but from employers’ potential setting of goals. It pointed to section 15(3) of the EEA, which specifically permits numerical goals and excludes quotas, noting that quotas might only arise in employers’ goal-setting processes.
He noted the CEE’s role under section 30(2)(b) of the EEA, which requires it to advise the minister on norms and benchmarks. The CEE would have advised the minister if the numerical targets to be set by the minister disadvantaged women to a point of unfair discrimination. The applicants did not contend that the CEE failed for advise the minister or that its advice was deficient.
Judge Moshoana referred to statutory safeguards for employers. Section 42(4) of the EAA allows an employer to raise any reasonable ground to justify its failure to comply, and section 53(6)(b) enables the minister to issue a compliance certificate if such justification is provided.
Where an employer, in setting numerical goals chooses not to comply with the numerical targets set by the minister because this will discriminate against women, such a ground is reasonable to justify failure to comply. Thus, employers have a valid alternative remedy, negating the need for interim relief such as an interdict, because there was “simply no basis for an irreparable harm to be suffered by employers”, Judge Moshoana said.
