Amendments to the Employment Equity Act of 1998

Dear colleagues

As President Cyril Ramaphosa proclaimed, the amendments to the Employment Equity Act (EEA) of 1998 came into effect on 1 January 2025. These translate into the Employment Equity Amendment Act of 2022. Regulations emanating from the Act and for implementation are still to follow.

On 12 May 2023, and again on 1 February 2024, the Department of Employment and Labour (DoEL) published draft regulations for public comment, identifying relevant sectors and suggesting various sectoral targets for designated groups. It is still unclear whether the February 2024 draft regulations will be finalised or a new version will be released for further public input.

With the amendments now taking effect, the Minister of Employment and Labour has the authority to identify relevant sectors again through a government gazette, consult with relevant industries, and issue a draft notice for public comment before finalising the sectoral targets. There will be a transitional period to implement the new sectoral targets.

Some of the most notable amendments include:

• Deletion of part of the definition that refers to a ‘designated employer’, meaning that currently, an employer (other than a municipality, state entity, or one designated through a collective agreement) is considered a designated employer under the affirmative action provisions of the EEA if they employ 50 or more employees. The employer's total annual turnover is no longer a factor.
• Amendment to the definition of ‘disabilities’ now aligns with the United Nations (UN) Convention on the Rights of Persons with Disabilities. The new definition is broader, encompassing individuals with intellectual or sensory impairments significantly limiting their ability to enter or advance in employment.
• Change in the role of the Health Professions Council of South Africa (HPCSA) regarding psychological testing. The requirement for HPCSA certification of psychological assessments has been removed to address capacity limitations at the HPCSA.
• Clarification of consultation requirements with representative trade unions. A designated employer now only needs to consult with the representative trade union, not with individual members of the representative union.
• The minister has the authority to identify national economic sectors and set numerical targets for these sectors. Designated employers must ensure their employment equity plans comply with these sectoral targets. The Director-General or any other authorised person applying the EEA will consider whether the designated employer complies with the sectoral targets when assessing their employment equity plan.
• The income differentials statement will no longer be submitted to the Employment Conditions Commission but will instead be submitted to the National Minimum Wage Commission.
• Expansion of labour inspectors’ powers to request and obtain written undertakings for compliance with obligations, including reporting on the failure of a designated employer to prepare an employment equity plan. Inspectors now also have the authority to ‘serve’ compliance orders instead of merely ‘issuing’ them.
• Introduced criteria for issuing a certificate of compliance from the DoEL. Employers need this certificate to enter into agreements with the state. While this section was previously introduced, it became effective as of 1 January 2025.
• In terms of section 53 of the EEA, every employer that makes an offer to conclude an agreement with any organ of state for the furnishing of supplies or services to that organ of state or for the hiring or letting of anything must – if it is a designated employer – comply with Chapters II and III of the EEA; and – if it is not a designated employer – comply with Chapter II of the EEA. A certificate issued by the minister should accompany the employer’s offer. In terms of the amendments, a compliance certificate may only be issued if the minister is satisfied that:
  • the employer has complied with sectoral numerical targets applicable to the employer or has raised a reasonable ground justifying its failure to comply;
  • the employer has submitted its annual employment equity report;
  • there have been no findings by the Commission for Conciliation, Mediation and Arbitration (CCMA) or a court that the employer breached the unfair discrimination provisions of the EEA in the previous 12 months, and
  • the CCMA has not issued an award against the employer in the previous 12 months for failing to pay the national minimum wage.

Action required from the University of Cape Town (UCT) to comply with these amendments once the regulations are gazetted:

• Update the Disability Policy and associated procedures.
• Review the current EE plan and numerical targets to ensure alignment with the proposed sectoral targets, ensuring institutional targets are realistic based on natural attrition.
• Conduct the EE barrier analysis as part of the new EE plan.
• Secure institutional approval of the EE plan for submission to the DoEL.
• Ensure that UCT complies with the National Minimum Wage Act, 2018 (Act No. 9 of 2018).
• Submit the annual EEA4 to DoEL and the National Minimum Wage Commission.
• Ensure that where UCT conducts business with the state, it does so in compliance with section 53 of the EEA.

Please note: An isiXhosa or Afrikaans version of this message is available. For more information or to request a translated version, please contact Cecil Peters.

Sincerely

Professor Elelwani Ramugondo
Deputy Vice-Chancellor: Transformation, Student Affairs and Social Responsiveness

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