Employment Equity Act Faces Constitutional Challenge That Could Force Year-Long Rewrite if DA are correct
- John Botha
- 3 hours ago
- 2 min read
DA Court Challenge Could Force Government to Restart Employment Equity Amendment Process
The Employment Equity Amendment Act (EEAA) faces a critical constitutional challenge that could send lawmakers back to the drawing board for up to 12 months. The Democratic Alliance's court case, centered on legislative procedure, may require a complete restart of the equity law implementation process.
In a case that highlights the technical but crucial aspects of South Africa's legislative process, the DA argues the EEAA was incorrectly processed under Section 75 (national competence) rather than Section 76 (provincial input required) of the Constitution. If successful, this procedural challenge would force the Department of Employment and Labour to engage in extensive provincial consultations that could reshape the law's implementation.
This isn't just about procedure—it's about whether provinces can shape policies that affect their unique demographics. A rewrite could fundamentally alter the EEAA's scope.
If the court rules against the government, a structured remediation process would be required, which could involve
Re-tagging & Parliamentary Reintroduction (1-2 months): The bill would be reclassified through the Joint Tagging Mechanism and reintroduced under Section 76 procedures
Provincial Consultations (3-4 months): All nine provinces would conduct public hearings and develop negotiating mandates
NCOP Process (2-3 months): Provincial final mandates and potential mediation between chambers
Presidential Approval (1-2 months): Final enactment after constitutional compliance
The importance of achieving equitable representation of designated groups is generally agreed across most stakeholders. It is the “how” and “what” that are the subjects of much debate, and this process of litigation will likely exacerbate tensions. Employers need to ensure that strong leadership prevails and that any form of unfair discrimination or harassment will not be tolerated. We will continue to provide updates on this landmark constitutional case as it develops.
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