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Article 7/2026

What are some of the important principles contained in Government Gazette 52514 of 15 April 2025 (Gazette 1) dealing with employment equity?

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These important principles can be summarised as follows:

  • in terms of s15A(1) of the Employment Equity Act (EEA), the Minister may identify national economic sectors for the purposes of the EEA, having regard to any relevant code in the Standard Industrial Classification of all Economic Activities, published by Statistics SA
  • item 1 of Gazette 1 identifies the 18 national economic sectors without any identification of sub-sectors – some indication of what should be taken into account in identifying the national economic sectors is to be found in EEA17
  • in terms of s15A(2) of the EEA, the purpose of sectoral numerical targets is to ensure equitable representation of suitably qualified people from designated groups at all occupational levels in the workplace – this provision has been incorporated into item 2 of Gazette 1
  • in respect of the implementation of affirmative action, item 3 deals with the following important issues:
    • 5-year sectoral numerical targets for the various population groups and gender from top management, senior management, professionally qualified, middle-management and skilled and technical is provided, as well as employees with disabilities – these targets are not intended to add up to 100%, as such targets exclude white males with no disabilities and foreign nationals (non-designated persons)
    • the manner in which designated employers must take targets into account in applying affirmative action is defined with reference to the EEA, the General Administrative EE Regulations (General Administrative Regulations) and the Codes of Good Practice issued ito the EEA
    • a designated employer will not incur penalties or any form of disadvantage if, in the assessment of compliance of affirmative action, it shows that there are reasonable grounds for non-compliance with the EE targets
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)?