• The Amendment Bill introduces Section 53 of the Employment Equity Act (EEA), which was never promulgated since the inception of the Act in 1998.

The South African Human Rights Commission (SAHRC) recently found that South Africa’s affirmative action and employment equity policies were unconstitutional.

The SAHRC specifically took issue with the Employment Equity Act’s definition of designated groups and South Africa’s system of data disaggregation.

Government’s failure to measure the impact of various affirmative action measures on the basis of need is also a failure of international legal conventions, it said.

In a statement released in August, the SAHRC said:

• The definition of designated groups as contained in the Employment Equity Act, and the current system of disaggregation of data could give rise to new imbalances in the labour market.
• Affirmative action measures must be targeted at groups and individuals who are subject to unfair discrimination, to eventually achieve substantive equality and a society based on non-racialism and non-sexism.
• Decisions based on insufficiently disaggregated data fail to target persons who have been disadvantaged by unfair discrimination.
• Without first taking the characteristics of groups into account, varying degrees of disadvantage and the possible intersectionality of multiple forms of discrimination faced by members of vaguely categorised groups cannot be identified.
• The Act must be amended to target more nuanced groups on the basis of need and should take into account social and economic indicators.
• Once the objective of affirmative action, namely substantive equality, is achieved, temporary special measures should cease.