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Article 8/2026

Item 3 of Government Gazette 52514 of 15 April 2025 (Gazette 1) specifies that the manner in terms of which employers must take the 5-year sectoral numerical targets into account, in applying affirmative action measures, must be with reference to the provisions of the EEA, the General Administrative EE Regulations (General Administrative Regulations) and the Codes of Good Practice issued ito the EEA.

What are some of the more important provisions of the EEA, the General Administrative Regulations and the aforesaid Codes of Good Practice that have to be taken into account?

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EEA

The following are some of the more important provisions of the EEA that designated employers must take into account in applying affirmative action measures:

  • s19(2): requiring a workforce analysis to determine underrepresentation in relation to the demographic profile of the national and regional economically active population (EAP)
  • s20(2): numerical goals in employment equity plans (EE plans) are to achieve equitable representation relative to the EAP demographics
  • s20(2A): the employer must set numerical goals that must align with the ministerial sectoral targets derived from EAP data
  • s42(1): compliance is assessed using EAP comparisons (during reviews)
  • s53(6): EAP-aligned target compliance is a prerequisite for obtaining government contracts

Code of Good Practice: Preparation, Implementation and Monitoring of Employment Equity Plans (1999)

The following are some of the more important provisions in the above Code that employers must take into account in applying affirmative action measures:

  • item 7.2.12: employers must disclose relevant local, regional and national demographic information relating to EAP during consultation
  • item 7.3.2(b): employers must use EAP data when identifying underrepresentation of designated groups by occupational categories and levels
  • item 8.4.2: employers must consider provincial and national EAP data when setting numerical targets

Code of Good Practice on the Integration of Employment Equity into HR policies and practices (2005)

The following are some of the more important provisions of this Code that designated employers must take into account in applying affirmative action measures:

  • item 5.3.11: the workforce profile should be compared to EAP at national and provincial level – for setting numerical targets for each occupational category and level
  • item 5.3.13: employers are required to make reasonable progress towards achieving numerical targets by achieving equitable representation, so measured against EAP benchmarks

General Administrative Regulations (Gazette 2 of 15 April 2025 – Government Gazette 52515)

The following are some of the more important provisions of these regulations, inclusive of relevant forms, that designated employers must take into account in applying affirmative action measures:

  • regulations 8(5) to 8(6): employers must use EEA8 (EAP data) and EEA9 (occupational levels) for analysis – EAP data must be used as a benchmark to identify under- or over-representation of each race group (African, Coloured, Indian and White) and gender (as well as people with disabilities) at each occupational level
  • regulations 9(5), 9(8) to 9(12): EE plans and numerical targets must take into account, inter alia, EAP – annual and 5-year targets per race group and gender (inclusive of disability) at each level: the employer must avoid overrepresentation above EAP in any particular occupational level
  • Form EEA2: the reporting form is to reflect actual, as compared to, target numbers for each group and indicate whether EAP targets were achieved/exceeded
  • Form EEA4: the income differential statement – to be utilised to track pay equity with reference to EAP
  • Form EEA8: reflecting national and provincial EAP data – the official source to be used during analysis and benchmarking (Table 1 and Table 2 of the CEE Annual Report)
  • Form EEA12: the analysis template for workforce profile – requiring a comparison of current representation to EAP percentages for each race group and gender
  • Form EEA13: the EE plan template – it must include specific numerical targets for each race group and gender aligned with EAP benchmarking
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)?