Legal experts and other stakeholders have pointed out why the new BEE targets are 'meaningless' in the gazetted draft regulations published for public comment. Image: iStock
Business interest group Sakeliga has served a letter of demand on Minister of Employment and Labour Thulas Nxesi, requesting the immediate withdrawal of the draft Employment Equity Amendment Act (EEA) regulations published for comment on Friday, 12 May.
The gazetted draft regulations stipulate race and gender targets, determined by the minister, in various economic sectors per industry per province.
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The proposed targets would apply to companies employing more than 50 people to be more demographically representative, especially in management positions.
The tables of the gazetted notice show percentages split across:
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The department did not publish an explanatory note on how the targets are to be read and various commentators, such as Sakeliga, have already pointed out that the numbers don’t add up.
According to Sakeliga, the targets are “incoherent and incomprehensible”.
The draft regulations… seek to determine race and gender quotas per industry per province. However, the regulations have been so incoherently and incomprehensibly constructed that it is impossible to formulate meaningful comments on the proposed targets.
“Furthermore, no explanation was provided to assist in making sense of the numbers,” the group said in a statement.
In Sakeliga’s letter of demand to the minister, the business interest group intimated that if the regulations are promulgated, they will be susceptible to judicial review.
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Sakeliga’s comments were echoed by legal experts Imraan Mahomed, director of Employment Law practice, and Johannes Jacobus van der Walt, senior associate at Cliffe Dekker Hofmeyr (CDH), who highlighted some “meaningless” targets.
“A target of 0% can neither ‘target’ nor be designed to protect or advance anyone in our view. It is meaningless,” they were quoted as saying in a BusinessTech report.
The notice, on occasion, determines a numerical target of 0%. In the agriculture, forestry, and fishing sector in Limpopo for instance, the numerical target for both coloured males and females is 0%.
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On Monday, Democratic Alliance (DA) leader John Steenhuisen called the EEA the “most dangerous piece of racial engineering our country has seen since the dawn of democracy”.
He provided some examples of the “absurdity” of the targets, referring to the gazetted tables.
In Gauteng, according to Steenhuisen, employment by people classified as coloured is limited to below 1% in some areas in the draft regulations. In the case of employees classified by the state as Indian, the targets are often as low as 0.1% across economic sectors.
Consider the absurdity. A company with 50 employees that has even a single Indian person on the payroll will be in breach of the 0.1% limit, as one out of 50 is equal to 2% of that company’s total employees.
-DA leader
“Conversely, if that company fires its single Indian employee on the basis of race, it will also be in breach because it will then have 0% Indian employees.”
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According to Steenhuisen, the DA will challenge the act in the Constitutional Court and encouraged people to raise their objections to the targets with the department.
Trade union Solidarity also announced last week that it has served a court summons on President Cyril Ramaphosa, the Department of Employment and Labour, as well as Nxesi, disputing the constitutionality of the country’s new BEE and transformation laws.
Its court bid follows the president signing the Employment Equity Amendment Bill of 2020 into law on 12 April.
In its court papers, Solidarity states that the latest amendments to the Employment Equity Act do not adhere to international labour conventions. It further argues that by signing off on the amended laws, the government is guilty of being in contempt of such conventions, as well as South Africa’s Constitution.
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