National Employers' Association of South Africa and Another v Minister of Employment and Labour and Others (107022/2025) [2025] ZAGPPHC 865 (28 August 2025)

Case Note

National Employers’ Association of South Africa & Sakeliga NPC v Minister of Employment and Labour & Others
Case No 107022/2025, High Court of South Africa (Gauteng Division, Pretoria)
2025-08-28, per Moshoana J

Reportability

The judgment is expressly marked reportable because it clarifies the limits of judicial power to interdict or suspend the execution of law-making or administrative functions that have already been exercised by another arm of State. It squarely addresses the separation-of-powers doctrine, the interim-interdict test after OUTA, and the proper interpretation of the newly-inserted s 15A of the Employment Equity Act 55 of 1998 (EEA). These matters are of wide public, governmental and commercial importance, particularly for designated employers facing the newly-gazetted sectoral targets.

Further, the decision emphasises the availability of review proceedings — rather than urgent interdicts — as the constitutionally compliant avenue for addressing alleged illegality in the exercise of statutory powers. Its analysis of what constitutes “consultation” under s 15A, the role of the Commission for Employment Equity, and the intersection between numerical targets and numerical goals provides guidance that other courts and practitioners are likely to rely on when similar relief is sought.

Finally, Moshoana J canvasses the Biowatch-costs doctrine in the urgent-motion context and explains why it did not avail the applicants on these facts. The combination of constitutional, administrative-law and labour-law questions places the matter firmly within the category of precedents that will be cited well beyond the immediate parties.

Cases Cited

United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others (CCT 39/21) [2022] ZACC 34; 2024 (1) SA 21 (CC)
National Treasury and Others v Opposition to Urban Tolling Alliance and Others (CCT 19/22) [2023] ZACC 24; 2024 (1) SA 21 (CC)
Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA)
Gool v Minister of Justice and Another 1955 (2) SA 682 (C)
City of Tshwane Metropolitan Municipality v AfriForum and Another 2016 (9) BCLR 1148 (CC)
Head of Department, Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another 2010 (2) SA 415 (CC)
Electronic Media Network Ltd and Others v E-TV (Pty) Ltd and Others 2017 (6) SA 201 (CC)
Bress Designs (Pty) Ltd v G Y Lounge Suite Manufacturers (Pty) Ltd and Another 1991 (2) SA 455 (W)
S.A.B. Lines (Pty) Ltd v Cape Tex Engineering Works (Pty) Ltd 1968 (2) SA 535 (C)
Canca v Mount Frere Municipality 1984 (2) SA 830 (Tk)
Maqoma v Sebe NO and Another 1987 (1) SA 483 (Ck)
Tlouama and Others v Speaker of the National Assembly and Others 2016 (1) SA 534 (WCC)
Central African Road Services v Minister of Transport and Another (62873/2014) [2019] ZAGPPHC 56
Harksen v Lane NO and Others 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC)
South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (CC)
Biowatch Trust v Registrar Genetic Resources and Others 2009 (6) SA 232 (CC)

Legislation Cited

Constitution of the Republic of South Africa, 1996 — ss 1(c), 2, 7(2), 8(1), 9, 165, 167(7), 172(1)(b)
Employment Equity Act 55 of 1998 — Preamble; ss 2-3, 7, 15, 15A, 16-17, 20, 30, 42, 53, 62
Uniform Rules of Court — rules 6(12) & 16A
International Labour Organisation Convention No 111 (1958)

Rules of Court Cited

Rule 6(12) — Urgent applications
Rule 16A — Notice of constitutional issue

HEADNOTE

Summary

The applicants, two employer organisations, sought urgent Part A relief interdicting and/or suspending the sectoral numerical targets and certain regulations published by the first respondent under the amended Employment Equity Act. They contended that the Minister had failed to publish drafts properly, had inadequately consulted relevant stakeholders (especially employees), and had adopted targets that were arbitrary and discriminatory against women.

Moshoana J held that an interim interdict was not available because the impugned statutory action had already been taken on 15 April 2025. Interdicts protect against future harm, not past invasions, and the applicants’ proper remedy lay in the pending judicial-review proceedings (Part B). Moreover, the Court lacked the power to “suspend” the Minister’s lawful exercise of statutory power; such a step would offend the separation of powers and did not fall within s 172(1)(b) of the Constitution.

On the merits, the Court interpreted s 15A of the EEA and found that the Minister had complied with the section: economic sectors were identified in accordance with official statistical codes; extensive consultations and draft publications occurred in 2023-2024; and advice from the Commission for Employment Equity had been obtained. Allegations of arbitrariness and gender discrimination were premature, misconceived and, in any event, answerable through the statutory defences open to employers under ss 42-53 of the Act.

Key Issues

• Whether a High Court can grant an interim interdict or suspension in respect of a statutory instrument already in force.
• The proper interpretation of “consultation” and “draft notice” under s 15A of the EEA.
• The test for urgency and irreparable harm post-OUTA in public-law interdicts.
• The compatibility of the sectoral targets with constitutional equality guarantees, particularly as they affect women.
• The applicability of the Biowatch principle to costs in urgent motions not directly enforcing a constitutional right.

Held

1. Urgency was satisfied, but the substantive requirements for an interim interdict were not.
2. An interdict cannot “unscramble the egg”; the Minister’s action stands until set aside on review (Oudekraal applied).
3. Courts possess no free-standing power to suspend the lawful exercise of executive authority; s 172(1)(b) is inapplicable absent a constitutional determination.
4. Section 15A was properly complied with: consultation occurred, drafts were published, and targets were rationally set.
5. Allegations of arbitrariness and discrimination are matters for the review court and, even if proved, are mitigated by statutory justifications available to employers.
6. Part A was dismissed; each party to pay its own costs.

THE FACTS

The two applicant bodies represent mainly small- and medium-sized employers across the private sector. Following amendments to the EEA effective 1 January 2025, the Minister identified 18 national economic sectors and, on 15 April 2025, gazetted binding numerical targets for each occupational level within those sectors. Consultative drafts had previously been published in May 2023 and February 2024, and sectoral engagements were held from 2019 onwards.

Designated employers must, by 1 September 2025, submit updated employment-equity plans whose numerical goals “comply with any sectoral targets” (s 20(2A)). The applicants, contending that the Gazette notices were unlawful and would precipitate “untold mayhem” in the labour market, launched an urgent application in July 2025. Part A sought to interdict or suspend the targets and certain accompanying regulations pending a review and constitutional challenge (Part B).

The respondents — the Minister, the Director-General and the Commission for Employment Equity — opposed the relief. They argued that urgency was self-created, that the applicants had an adequate alternative remedy (review), and that the Court lacked jurisdiction to stay the operation of duly promulgated legislation. A prospective amicus application by Solidarity Union was dismissed at the start of the hearing.

THE ISSUES

The Court had to decide, first, whether it had jurisdiction and equitable discretion to grant interim relief that would effectively halt the implementation of statutory targets already in force. This required consideration of the classic Setlogelo/OUTA test: a prima facie right, irreparable harm, no adequate alternative remedy, and a balance of convenience.

Secondly, the Court had to interpret s 15A of the EEA to determine whether the Minister had complied with the procedural requirements of prior consultation, publication of draft notices, and rational, non-arbitrary determination of sectoral targets. Subsidiary to that was whether the targets unlawfully discriminated against women.

Finally, the Court had to consider the appropriate costs order and whether the Biowatch-principle shielding public-interest litigants applied in the urgent-motion context.

ANALYSIS

Moshoana J began by reaffirming that interim interdicts are forward-looking remedies; they do not undo completed administrative acts. Citing UDM v Lebashe, OUTA, and Gool, he emphasised that the “horse had bolted” when the Minister gazetted the targets. Any injury the applicants feared would flow, not from the Minister’s act, but from employers’ own subsequent setting of numerical goals. Such harm was speculative, avoidable, and legally insufficient to satisfy the irreparable-harm requirement.

Turning to separation of powers, the Court held it lacked authority to “suspend” the working of a statute lawfully promulgated by the executive pursuant to Parliamentary delegation. Section 172(1)(b) empowers a court to fashion just and equitable relief only when it is deciding a constitutional matter — which the Part A application was not.

On the merits, the Court embarked on a detailed, purposive interpretation of s 15A read with the EEA’s preamble, ss 2-3 and relevant ILO obligations. “Consultation”, it held, denotes a process of soliciting views, not negotiation or consensus-seeking. Publication of 2023-2024 draft notices, coupled with sectoral stakeholder meetings and advice from the Commission, satisfied the statutory threshold. The applicants’ insistence on fresh publication of the final 15 April 2025 notice misconceived the text, which requires drafts of “any notice”, not the final notice itself, to be exposed for comment.

As to arbitrariness and alleged gender discrimination, the Court found the attack premature. The Minister sets sectoral targets; individual employers translate them into goals through consultative employment-equity plans. Employers who consider compliance impracticable may rely on the justificatory defences in ss 42 and 53. Given these statutory safeguards and the technical advice of the CEE, the targets could not be labelled irrational or capricious on the papers.

Cost-wise, the Court exercised its discretion to grant a no-order-as-to-costs outcome. Although the applicants invoked the Biowatch principle, the Court held that the application, centred on interim relief rather than direct constitutional vindication, did not fit the paradigm but, having regard to the importance of the matter and ongoing Part B proceedings, each side should bear its own costs.

REMEDY

The Court dismissed Part A of the notice of motion in its entirety and ordered that each party pay its own costs. No interdict, suspension, or ancillary relief was granted. The applicants retain the right to pursue the pending review and constitutional challenge in Part B.

LEGAL PRINCIPLES

First, an interim interdict is not an appropriate mechanism to undo or suspend a statutory instrument that has already taken legal effect; the applicant’s proper remedy is judicial review. Courts must respect the separation of powers and cannot exercise a general suspension power absent a constitutional determination under s 172(1)(b).

Second, s 15A of the Employment Equity Act requires consultation with “relevant sectors” and publication of draft notices, but it does not mandate consensus or continuous republication of the final notice. Consultation is satisfied once interested parties have been afforded a real opportunity to comment.

Third, the Oudekraal principle remains a cornerstone: administrative action is valid and has legal effect until set aside by a competent court. Compliance with such action cannot, in itself, be interdicted as unlawful.

Fourth, allegations of arbitrariness or unfair discrimination in sectoral targets must be evaluated in the broader statutory context, including the advisory role of the Commission for Employment Equity and the justified-non-compliance defences available to employers under ss 42 and 53.

Finally, the Biowatch-costs rule does not automatically shield unsuccessful litigants in urgent proceedings that do not directly enforce a constitutional right. Costs remain a matter of judicial discretion, tempered by considerations of fairness, importance and the stage of the litigation.