4 December 2025

Director

Employment Equity Directorate

Department of Employment and Labour

Also for the attention of:

Minister of Employment and Labour

Acting Director-General

Department of Employment and Labour

Dear Ms Mamashela

EMPLOYMENT EQUITY REPORTING – RACIAL CLASSIFICATION GUIDANCE AND LEGISLATED SECTORAL NUMERICAL TARGETS

In light of the 15 January 2026 Employment Equity (EE) reporting deadline, NEASA has no option but to address this letter to you at a time when economic sectors are shutting down for the festive season and meaningful engagement proves to be difficult.

We refer to your very recent response letters to employers regarding the accuracy of the information of employees’ self-classification or employers’ classification of their employees on the EEA1 form, for purposes of EE planning and reporting.

The racial-, gender- and disability designation of employees is not employers’ only concern with the EE scheme – it is but the start and only one of the irrational, impossible elements that doom the entire scheme to failure.

In your letter to employers, you state:

“Where employees elect not to self-classify, Regulation 8(2) unambiguously mandates that the designated employers must determine the employee’s designation using reliable historic or existing data, and persons with disabilities have the right not to declare their disability.”

and confirm:

“Compliance with this requirement is a statutory responsibility and not subject to employer discretion.”

The employers’ initial request for guidance did not relate to where this impossible obligation, that has been foisted on employers, could be found, but to how employers are practically supposed to comply with this obligation in the absence of any criteria as to how a person’s race should be determined.

Despite requests from employers, you have failed or intentionally neglected to define, indicate or provide guidance on which criteria should be utilised for classification purposes, simply electing to state that “reliable historic or existing data” should be used. However, no indication is given as to what data can be considered and used as “reliable historic or existing data”, nor can any guidance be found in legislation or the regulations as to what this may entail.

Once again, we pose the following questions to you:

• what data are you referring to when you refer to “reliable historic or existing data”;

• which criteria should be used to racially classify employees;

• how are employers supposed to accurately classify individuals if those individuals have the right not to declare their disabilities; and

• please elaborate on how employers are to plan and report on EE, if information such as the disabilities of employees may be withheld?

Also in your letter, you make the statement:

“The Department emphasises that the EE framework, including the requirement to report on race rests firmly within the parameters of the Constitution and established Constitutional Court jurisprudence.”

The requirement to report on race may be embedded in South African legislation, by virtue of the Employment Equity Act, but the instruction from Government to one individual (employer) to racially classify another individual (employee) and consequently treat that individual in a certain manner based on their perceived race, is still under legal scrutiny at this time.

Your attempt to justify Government’s irrational expectations on employers through case law does not strengthen your argument; on the contrary, you state that, “…the Court recognised the importance of demographic targets but held that measures must be applied flexibly and contextually, reinforcing the need for accuracy in workforce profiling.”

The 5-year numerical sectoral targets are mandatory and set for every designated employer in the 18 respective economic sectors. They are not flexible or contextually relevant to the different sectors and their individual, unique operational natures and challenges.

Your reference to the fact that employers may raise reasonable grounds to justify failure to comply with the targets, further illustrates the irrationality and impossibility of the targets, as well as your clear understanding of the unrealistic and unachievable nature thereof. If the Department is cognisant of and allows for the justification of non-compliance, where is the rationality of setting mandatory targets in the first instance?

Are we to assume that the labour inspectors who will be monitoring and auditing employers’ EE plans, will therefore understand the logic of employers not being able to set targets aimed at reaching the impossible 5- year targets, due to all relevant justifiable reasons and operational constraints?

Or is it the Department’s expectation that employers should set unreachable, unrealistic targets, aimed at reaching the 5-years targets for compliance’s sake, perpetually fail to reach said targets because of the sheer impossibility, and then rely on justifiable grounds?

If this is the case, the entire EE scheme remains, as we have deemed it to be from the start - an exercise in futility, an administrative, State-enforced compliance burden upon employers, as part of the skewed racial transformation obsession of a Government that fails to prioritise economic growth and job creation.

We await your guidance and response to the questions posed herein.

Kind regards

G.C. Papenfus

CHIEF EXECUTIVE

For more information

NEASA Media Department

media@neasa.co.za