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Article 13/2026

Employment equity compliance certificates will be issued if a designated employer achieves the annual and eventual sectoral targets by 2030.  Such compliance certificates will also be issued if there are justifiable reasonable grounds for non-compliance in terms of Regulation 16(5) of Government Gazette 52515 of 15 April 2025 (Gazette 2).  If these grounds exist, an employer will therefore be able to justify why it deviated from its employment equity targets. 

What are these justifiable reasonable grounds for not complying with employment equity targets?

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Regulation 16(5) of Gazette 2 contains the following grounds:

  • insufficient recruitment opportunities – the lack of recruitment opportunities simply means the designated employer has been deprived of the opportunity of filling identified positions so as to ensure compliance with the employment equity plan targets
  • insufficient promotion opportunities – in short, a flat, horizontal organisational structure does not create the same promotion opportunities as a vertical organisational structure
  • insufficient target individuals from designated groups with relevant formal qualifications, prior learning, relevant experience or the capacity to acquire, within a reasonable time period, the ability to do the job – employment equity is not about filling positions from designated groups, but filling such positions with suitably qualified people from such designated groups (at all occupational levels in the workplace). There is no duty on a designated employer to fill positions unless the incumbents are indeed suitably qualified people in terms of s20(3), read with s20(4), of the EEA
  • impact of CCMA award/court order
  • transfer of businesses
  • mergers/acquisitions
  • impact of economic conditions on the employer

The harsh reality is that no business will be in a recruitment and employment mode if fertile economic conditions do not exist.

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?