IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA


Case Number: 107022/2025









In the matter between:


NATIONAL EMPLOYERS’ ASSOCIATION OF SOUTH AFRICA First Applicant

SAKELIGA NPC Second Applicant


and

MINISTER OF EMPLOYMENT AND LABOUR First Respondent

DIRECTOR-GENERAL OF THE DEPARTMENT

OF EMPLOYMENT AND LABOUR Second Respondent

COMMISSION FOR EMPLOYMENT EQUITY Third Respondent


Flynotes: Interdict/suspension of an exercise of a statutory power. The exercise
of statutory power had happened – interdict not a suitable remedy. Court lacks
powers to suspend the statutory action of another arm of government –
principle of separation of powers upheld . Section 172(1)(b) of the Constitution
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: YES
______________ ____________ ___
DATE SIGNATURE
28 August 2025

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not applicable. Interdict pendente lite not available as a remedy. The
requirements of irreparable harm not established. The available adequate
remedy is that of judicial review. Costs – Biowatch principle discussed but not
applied. Judicious discretion applied. Held: (1) Part A of the application is
dismissed. Held: (2) Each party must pay its own costs.


JUDGMENT
MOSHOANA, J


Introduction
[1] This is an opposed urgent application that was launched by the applicants in two
parts. In the first part (Part A), the applicants are seeking interdictory reliefs pending
the finalisation of declaratory and judicial review remedies (Part B). What came for
determination is the Part A relief. Owing to that, this judgment shall direct its attention
to the reliefs sought in Part A. The pertinent portions of the notice of motion read thus:

“2 Pending the final determination of Part B , interdicting and/or suspending the
operation and implementation of the following:
2.1 the sectorial numerical targets published by the first respon dent in Government
Notice No. 6124 in Government Gazette No. 52514 on 15 April 2025; and
2.2 Regulations 9(1), 9(2), 9(5) , and 9(7) to 9 (14) of the General Administrative
Regulations published in Government Notice No. 6125 in Government Gazette No. 5215
on 15 April 2025.”

[2] The applicants issued a notice in terms of rule 16A of the Uniform Rules of the
High Court suggesting that a constitutional issue had arisen in Part A. Allegedly, such
notice prompted Solidarity Union, to launch an application seeking to be admitted as
an amicus curiae (friends of the Court) . The application was opposed by the
respondents. At the commencement of the hearing, this Court directed that the amicus
application be heard first. After hearing it, this Court , in an ex-tempore judgment,
dismissed the amicus application with no order as to costs. Counsel on brief for
Solidarity Union remained in attendance on a watching brief instruction. It is

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unnecessary to, in this judgment, augment the reasons already advanced ex tempore
for refusing the amicus application.

Pertinent factual matrix
[3] Since this judgment concerns itself with Part A of the application, it is obsolete
for this Court to punctiliously narrate all the facts appertaining the entire dispute
between the parties . There are two applicants before me. The first applicant is the
National Employers’ Organisation of South Africa ( NEASA). As the name suggests,
NEASA is an employer’s organisation, acting in the present application on behalf of its
members, who mainly are employers. The second applicant is SAKELIGA NPC
(Sakeliga). Sakeliga is a non-profit organisation, acting in the present application in
the interests of its members, who mainly are businesses.

[4] The present application is launched against three respondents . Those are, the
Minister of Employment and Labour (Minister); the Director-General of the Department
of Employment and Labour (DG); and the Commission for Employment Equity (CEE).

[5] Effective 1 January 2025 , section 15A of the Employment Equity Act (EEA)1,
became law in South Africa. Pertinent to the present application, section 15A endowed
the Minister with certain powers. Amongst others, the Minister is empowered to identify
and set numerical targets for any national economic sector. It is common cause that
on 15 April 2025, the Minister identified 18 economic sectors and set numerical targets
for them.

[6] Equally common cause is that on 12 May 2023, the Minister published a notice
which proposed for the 18 economic sectors certain numerical targets . Again, on 1
February 2024, another draft of a similar nature was published. Although the
applicants dispute the adequacy of the consultations held with the relevant sectors, it
is common cause that for a period, sector stakeholder engagements had taken place.

[7] It is also common cause that effective from 1 September 2025, as required by

[7] It is also common cause that effective from 1 September 2025, as required by
section 20 of the EEA , designated employers must prepare and implement an

1 Act 55 of 1988 as amended.

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employment equity plan which will achieve reasonable progress towards employment
equity in that employer’s workforce . I pause to mention that the legal requirement to
prepare and implemen t the employment equity plan has been there for designated
employers for several years. Section 20(2A), which took effect from 1 January 2025 ,
provides that the numerical goals set by an employer in the employment equity plans
must comply with any sectorial targets in terms of section 15A that applies to that
employer.

[8] For present purposes the designated employers in the 18 economic sectors,
when complying with the old legal requirement in section 20(1) and (2) of the EEA,
must comply with the numerical targets set in the notice of 15 April 2025. The NEASA
and Sakeliga, took a view that the setting of the numerical targets is unlawful and the
Minister ought to be interdicted for having set those numerical targets. Some months
after the 15th of April 2025, on or about 28 July 2025, the present application was
launched.

Analysis
[9] In opposing the present application, the respondents contended that the
application falls to be struck off the roll for want of urgency. Urgency is regulated by
rule 6(12) of the Uniform Rules of this Court. Two requirements ought to be established
before an application could be entertained on an urgent basis. Those are (a) sufficient
reasons why an urgent relief is required must exist; and (b) reasons why a substantial
redress may not be achieved in due course must be advanced . The respondents
submitted that the urgency claimed by the applicants is a self -created one. The
applicants waited from 15 April 2025, and only launched the present application three
months later, so went the submission . On the other hand, the applicants submitted
that on 1 September 2025, which is around the corner, should an interdict not issue ,
designated employers would be compelled to comply with the unlawful and arbitrary
exercise of public powers by the Minister.

exercise of public powers by the Minister.

[10] Hearing an application as one of urgency involves an exercise of judicial
discretion. Having had regard to the circumstances of the present application and the

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importance of the matter to these parties, this Court exercised its discretion in favour
of hearing the application as one of urgency.

Issues arising out of the present application.
[11] Although the applicants submitted prolix heads of argument, as correctly pointed
out by Mr D’ Oliveira, appearing for the applicants, the present application fulcrums on
three points. Those are (a) the alleged failure of the Minister to publish the proposed
draft notice; (b) the alleged failure of the Minister to co nsult (with particular emphasis
on the failure to consult employees) or appropriately consult with the relevant
employers; (c) the alleged arbitrariness of the numerical targets set by the Minister
(discriminating against women) . In my view, these issues propel this Court to an
interpretation exercise of section 15A of the EEA. Before attempting an interpretation
of the section, it is apposite to deal first with the relief sought by the applicants.

Is an interdictory relief appropriate?
[12] In United Democratic Movement and Another v Lebashe Investment Group (Pty)
Ltd and Others (UDM)2, the following was stated by the Constitutional Court:

“An interdict is an order by a court prohibiting or compelling the doing of a particular act
for the purpose of protecting legally enforceable right, which is threatened by continuing
or anticipated harm…

In granting an interdict the court must exercise its discretion judicially upon consideration
of all the facts and circumstances. An interdict is not a remedy for the past invasion of
rights. It is concerned with the present and the future . The past invasion should be
addressed by an action of damages. An interdict is appropriate only when future injury
is feared.”

[13] Counsel for the applicants conceded, correctly so, that the remedy of an interdict
may be problematic, in an instance where the Minister has already exercised what the
applicants consider to be unlawful exercise of statutory power. Thus, an interdict would

applicants consider to be unlawful exercise of statutory power. Thus, an interdict would
necessarily call for the unscrambling of an egg, as it were . The proverbial horse has
bolted. It was for that reason that the notice of motion was couched in such ambivalent

2 (CCT) 39/21) [2022] ZACC 34 (22 September 2022) at para 47 and 48.

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terms, by mentioning an interdict and or suspe nsion. Clearly, the Minister has
exercised statutory powers, lawfully or unlawfully, in April 2025 already. To my mind,
this is a typical case of the past invasion. On the authority of UDM, an interdict is not
an appropriate remedy . During argument, this Court enquired from counsel for the
applicants as to what legally protectable rights are the applicants seeking to protect
by way of an interdict. In retort, counsel stated that it is the right to judicial review and
the rights allegedly mentioned in section 172(1)(b) of the Constitution.

[14] Regarding the right to judicial review, which I must emphasise is the only
adequate and available remedy for the applicants, since the gripe about the exercise
of statutory or public power is sharply raised. The Constitutional Court in the famous
case of National Treasury and Others v Opposition to Urban Tolling Alliance and
Others3, had the following to say:

“Under the Setlogelo test, the prima facie right a claimant must establish is not merely
the right to approach a court in order to review… It is a right to which if not protected by
an interdict irreparable harm will ensue.

…Therefore, the harm that the applicants rely upon will not be caused by the past
decisions they impugn in the review. There is a misalignment between the decision they
seek to review and the source of the harm they fear.

[15] Since the Oudekraal4 decision, a principle exists in our law that an administrative
action remains valid and is adorned with legal consequences until set aside by a Court
of competent jurisdiction. Therefore, the administrative action of 15 April 2025 remains
valid until set aside by a Court of competent jurisdiction. Complying with the decision
of 15 April 2025 does not amount to an unlawful conduct, which is preventable by way
of an interdict. In Gool v Minister of Justice and Another (Gool)5, the following was
stated:

stated:


3 (CCT 19/22) [2023] ZACC 24; 2023 (10) BCLR 1189 (CC); 2024 (1) SA 21 (CC) (12 July 2023)
4 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others (41/2003) [2004] ZASCA 48; [2004] 3 All SA 1 (SCA);
2004 (6) SA 222 (SCA) (28 May 2004).
5 1955 (2) SA 682 (CPD), which was cited with approval in OUTA.

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“The present is however not an ordinary application for an interdict. In the first place, we
are in the present case concerned with an application for an interdict restraining the
exercise of statutory powers. In the absence of any allegations of mala fides, the Court
does not readily grant such an interdict...”

[16] In City of Tshwane Metropolitan Municipality v AfriForum and another
(AfriForum)6, the Constitutional Court expressed itself in the following terms:

“Before an interim interdict may be granted, one of the most crucial requirements to meet
is that the applicant must have a reasonable apprehension of irreparable and imminent
harm eventuating should the order not been granted…

Within the context of a restraining order, harm connotes a common-sensical, discernible
or intelligible disadvantage or peril that is capable of legal protection … And that
disadvantage is capable of being objectively and universally appreciated as a loss
worthy of some legal protection…”

[17] There can be no doubt that in the administrative action of 15 April 2025, the
Minister did not act unlawfully. The law empowered the Minister to act accordingly as
he so did on 15 April 2025. There are no allegations that in taking that action in the
exercise of statutory power, the Minister acted with any mala fides. Regarding the
harm, the applicants allege that from 1 September 2025, there will be untold mayhem,
that will see employees in large scales being displaced or dismissed . Even if the
alleged mayhem will unfold , such will hav e been as a direct consequences of the
application of the law. Until that law is declared invalid constitutionally, the rule of law
demands compliance. Allegedly, the mayhem will ensue when a designated employer
sets numerical goals in compliance with the numerical targets already set by the
Minister. The alleged mayhem is not only indiscernible or unintelligible, but it is also
one that is not capable of legal protection. Generally no one is above the law. Thus,

one that is not capable of legal protection. Generally no one is above the law. Thus,
no one may be spared from the application of the law unless that law has been
declared invalid. The majority of apartheid legisl ations were invalid, yet they were
applied because they were valid in the eyes of the law at the time.


6 2016 (9 BCLR 1148 (CC) at para 55 and 56.

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[18] On the applicants’ version, the alleged mayhem will be caused by the setting of
numerical goals as opposed to the setting of numerical targets. Numerical goals are
set by the designated employers and not the Minister. The Minister only set numerical
targets. He has already done so and no untold mayhem is alleged to have taken place.
It is perspicuous that if any harm will occur, it is one which may be occasioned by the
setting of numerical goals. The Minister has nothing to do with the employees of
designated employers . The legal position as outl ined in section 20(2A) is that an
employer must comply with the 15 April 2025 administrative action. It must be so that
the alleged untold mayhem harm will be a self-inflicted one. As it shall be demonstrated
in due course, the alleged untold mayhem harm is avoidable by the selfsame
designated employers. Statutory mechanism to do so exists.

[19] Until section 20(2A) is declared invalid, designated employers have no option but
to comply with the action of 15 April 2025. Accordingly, for all the above reasons, an
interdict is not an appropriate remedy, and it must be refused.

Is suspension of the administrative action appropriate?
[20] This Court was at a complete loss regarding the powers that the Court has to
suspend an exercise of statutory powers. Particularly in an instance where the power
was exercised many moons ago. On application of the doctrine of separation of
powers, a Court is not empowered to, for the sake of what appears to be the
convenience of a party, simply suspend powers lawfully exercised by another arm of
the State. A temporary interdict pending the outcome of an action, or review is the only
available relief 7. The purpose of such an interdict is to ensure that pending a full
investigation by the Court the wrong complained of should not be committed or
continued8. The conundrum in the applicants’ case is that application of the law is

continued8. The conundrum in the applicants’ case is that application of the law is
incapable of being considered a legal wrong. It may be a legal wrong in an instance
where the law was exercised unlawfully. That stage has not been reached. In part B,
the applicant is attempting to make a case of unlawfulness. To my mind, the prospects
of success on the judicial review case is extremely weak. Since part B is still pending
determination, it will be unwise for this Court to expatiate on why it takes a view that

7 Bress Designs (Pty) Ltd v G Y Lounge Suite Manufacturers (Pty) Ltd and Another 1991 (2) SA 455 (WLD) and
S.A.B Lines (Pty) Ltd v Cape Tex Engineering Works (Pty) Ltd 1968 (2) SA 535 (CPD).
8 See S.A.B case supra at 537E.

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the pending judicial review is emaciated prospects wise. The case punted for by the
applicants is not one of the clearest case s of unlawfulness. This Court was advised
that a decision pends in this Court where the constitutionality of the law applied by the
Minister is to be determined. Advisedly, this Court expresses no view on whether there
are any prospects of success in the constitutionality challenge.

[21] In support of this suspension relief, reliance was placed on section 172(1)(b) of
the Constitution. This Court disagrees with a submission that section 172(1)(b) finds
application herein. In the first instance, the section only applies in an instance where
a Court is deciding a constitutional matter. In this application there is no constitutional
matter involved. The applicants are seeking an interdictory relief and no more. In terms
of section 167(7) of the Constitution, a constitutional matter includes an y issue
involving the interpretation, protection or enforcement of the Constitution. Section
172(1)(b) empowers a Court to make any order that is just and equitable. It cannot be
just and equitable for a Court to suspend the exercise of statutory power by another
arm of the state. In this instance, the Minister is not acting unjustly or inequitably. As it
shall be demonstrated in due course, the Minister did not act in breach of section 15A
of the EEA. That being the case, a Court is not entitled to use its powers to make a
just and equitable order in this instance . Accordingly, for all the above reasons, this
Court refuses to exercise suspension powers if it possesses such powers. In terms of
section 165(2) of the Constitution, Courts are subject to the Constitution and the law.
There is no law that empowers a Court to suspend a lawful exercise of statutory
powers. According to section 2 of the Constitution, the Constitution is the supreme law
of the Republic ; law or conduct inconsistent with it is invalid, and the obligations

of the Republic ; law or conduct inconsistent with it is invalid, and the obligations
imposed by it must be fulfilled. Section 1(c) of the Constitution prescribes that
supremacy of the Constitution and the rule of law are values upon which the Republic
of South Africa is founded. One of the elements of a rule of law is the respect for the
law. The Minister must respect the provisions of section 15A . The question whether
section 15A is valid or invalid is sub judice. It must be emphasised that section 7(2)
of the Constitut ion imposes a duty on the Minister as a State functionary to protect,
promote and fulfil the rights in the B ill of Rights. This Court takes a view that in
exercising powers emanating from section 15A the Minister is carrying out an
obligation imposed by section 7(2) read with section 8(1) of the Constitution . It must

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be remembered that in terms of section 62 of the EEA, the EEA binds the State. The
Minister as a State functionary had no option but to comply with section 15A.

[22] In seeking to advance, what respectfully appears to this Court as, a feeble case
of this Court allegedly having powers to suspend exercise of statutory powers, counsel
for the applicants , placed heavy reliance on the case of Head of Depart ment,
Mpumalanga Department of Education and another v Hoerskool Ermelo and another
(Ermelo)9. Unfortunately, unlike in th e present matter, the Ermelo case involved a
legality review, where the school and its governing body sought a setting aside of a
withdrawal of a function. The present part of the case does not involve a setting aside
of the exercise of the statutory powers of the Minister, but the case seeks to suspend
such exercise that has already occurred. Counsel for the applicants, drew the attention
of this Court to paragraph 97 of Ermelo, which read:

“It is clear that s172(1)(b) confers wide remedial powers on a competent court
adjudicating a constitutional matter. The remedial power envisaged in s172(1)(b) is not
only available when a court makes an order of constitutional invalidity of a law or conduct
under s 172(1)(a). A just and equitable order may be made even in instances where the
outcome of a constitutional dispute does not hinge on cons titutional invalidity of
legislation or conduct . This ample and flexible remedial jurisdiction in constitutional
dispute permits a court to forge an order that would place substance over mere form by
identifying the actual underlying dispute between the parties and requiring the parties to
take steps directed at resolving the dispute in a manner consistent with constitutional
requirements…”

[23] What sets this matter apart from Ermelo, is that there is no constitutional matter
or dispute involved herein. In part B of this case, a constitutional matter or dispute is

or dispute involved herein. In part B of this case, a constitutional matter or dispute is
conspicuously present. Accordingly, what Ermelo did was to forge an order after a
finding was made that the HoD acted improperly by withdrawing a function. The Court
in Ermelo had structural interdicts and supervisory orders in mind. Such remedies are
clearly impermissible in the present application.

The interpretation of section 15A

9 2010 (2) SA 415 (CC).

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[24] This section came into operation as law applicable in South Africa on 1 January
2025. Before the section may be referenced, it is apposite to reference other relevant
parts of the EEA. The first is the preamble of the Act. It states:

“Recognising – that as a result of apartheid and other discriminatory laws and practices,
there are disparities in employment, occupation and income within the national labour
market; and that those disparities create such pronounced disadvantages for cert ain
categories of people that they cannot be redressed simply by repealing discriminatory
laws;
Therefore, in order to – promote the constitutional right of equality and the exercise of
true democracy; eliminate unfair discrimination in employment ; ensure the
implementation of employment equity to redress the effects of discrimination; achieve a
diverse workforce broadly representative of our people; promote economic development
and efficiency in the workforce; and give effect to the obligations of the Republic as a
member of the International Labour Organisation.”

[25] Regard being had to the above, it cannot be gainsaid that elimination of unfair
discrimination in emplo yment is at the forefront of the EEA. The second section to
consider is section 2 of the EEA. It states:

“Purpose of this Act
2. The purpose of this Act is to achieve equity in the workplace by –
(a) promoting equal opportunity and fair treatment in employment through the
elimination of unfair discrimination; and
(b) implementing affirmative action measures to redress the disadvantages in
employment experienced by designated groups, in order to ensure their equitable
representation in all occupational levels in the workforce.”

[26] Regard being had to the purpose of the Act, it cannot be doubted that its purpose
is to ensure implementation of affirmative action me asures. The implementation is
purposed to ensure equitable representation in all occupational levels . The third

purposed to ensure equitable representation in all occupational levels . The third
section to consider is section 3 of the EEA. It states:

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“Interpretation of this Act
3. This Act must be interpreted –
(a) In compliance with the Constitution;
(b) So as to give effect to its purpose;
(c) Taking into account any relevant code of good practice issued in terms of this Act
or any other employment law;
(d) In compliance with the international law obligations of the Republic, in particular
those contained in the International Labour Organisation Convention (No. 111)
concerning Discrimination in Respect of Employment and Occupation.

[27] For completeness sake, section 7(2) of the C onstitution, obliges the state to
respect, protect, promote and fulfil the rights in the Bill of Rights. Section 8(1) provides
that the Bill of Rights binds the legislature as well as the executive. Article 5(2) of the
Convention concerning Discrimination in Respect of Employment and Occupation10
(Convention No. 111) specifically provides that:

“2. Any Member may after consultation with representative employers’ and workers’
organisations, where such exists, determine that other special measures designed to
meet the particular requirements of persons, who, for reasons such as sex, age,
disablement, family responsibilities or social or cultural status, are generally recognised
to require special protection or assistance, shall not be deemed to be discrimination.”

[28] Undoubtedly, affirmative action measures suggested in section s 15 and 15A of
the EEA , cannot be considered to be discrimination when compliance with the
Convention No. 111 is considered.

[29] Having considered the above statutory provisions, I now turn to the provisions of
section 15A of the EEA. Section 15A states the following:

15A Determination of sectoral numerical targets
(1) The Minister may, by notice in the Gazette, identify national economic sectors for
the purposes of this Act, having regard to any relevant code contained in the Standard
of all Economic Activities published by Statistics South Africa.

of all Economic Activities published by Statistics South Africa.

10 Convention No.111 Convention concerning Discrimination in Respect of Employment and Occupation, 1958.

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(2) The Minister may, after consultation with the relevant sectors and with the advice
of the Commission, for the purpose of ensuring the equitable representation of suitably
qualified people from designated groups at all occupational levels in the workforce , by
notice in the Gazette set numerical targets for any national economic sector identified in
terms of subsection (1).
(3) A notice issued in terms of subsection (2) may set different numerical targets for
different occupational levels, sub-sectors or regions within the sector or on the basis of
any other relevant factor.
(4) A draft of any notice that the Minister proposes to issue in terms of subsection (1)
or subsection (2) must be published in the Gazette, allowing interested parties at least
30 days to comment thereon.”

[30] Commencing with subsection (1), the Minister is endowed with a power to identify
national economic sectors. It is undisputed that the Minister has already exercised this
power by identifying 18 sectors. Section 1 of the EEA defines a sector to mean an
industry or service or part of any industry or service. The applicants contends that
sector must include only an employer and employees. There is no merit in this
contention because the legislature afforded the word sector a technical meaning . In
Canca v Mount Frere Municipality (Canca)11, the erudite Davis J expressed himself in
the following sagacious manner:

“The question whether a word in a particular section of a statute should be given its
statutory definition or the ordinary mean ing has come up for decision in a number of
cases… The principle which emerges is that the statutory definition should prevail unless
it appears that the Legislature intended otherwise and, in deciding whether the
Legislature so intended, the court has generally asked itself whether the application of
the statutory definition would result in such injustice or incongruity or absurdity as to lead

the statutory definition would result in such injustice or incongruity or absurdity as to lead
to the conclusion that the Legislature could never have intended the statutory definition
to apply.”

[31] Accordingly, in my view, for definitional purposes , reliance ought to be placed
onto the statutory definition of the word sector. As a noun the word industry means an
economic activity concerned with the processing of raw materials and manufacture of

11 1984 (2) SA 830 (Tk) followed in Hoban V ABSA Bank Ltd t/a United Bank and others [1999] 2 All SA 483 (SCA);
ABP 4x4 Motor Dealers (Pty) Ltd v IGI Insurance Co Ltd 1999 (3) SA 924 (SCA) at paras [17]-[18]; and University
of the North and Others v Ralebipi and Others [2003] 11 BLLR 1120 (LAC) at para [21].

14

goods in factories. Service means assistance or advice given to customers during and
after the sale of goods. When regard is had to the dictionary meaning of the words
industry and service, there is a clear reason why the word sector should not be defined
in the manner suggested by the applicants. An industry or service cannot be confined
to an employer and an employee only. There are various other stakeholders in an
industry and service. Broadly, a sector must include those various stakeholders.

[32] The identification of the national economic sectors cannot happen whimsically.
The Minister is impelled to have regard to a code independently developed and
published by Statistics South Africa. Howbeit, it is not the case of the applicants that
the identification (exercise of statutory power) was done whimsically by the Minister.

[33] Turning to subsection (2), the gripe of the applicants is that the Minister did not
consult at all or consulted deficiently. As a departure point, the Minister is required to
consult with the relevant sectors. As indicated above, a sector does not , in my view,
necessarily include employees. It is, as defined, referring to industry or service. The
word consultation has not been afforded any technical meaning in the EEA. Therefore,
it must be given its ordinary grammatical meaning. The word consult means see k
information or advice12. The word consultation means a process of seeking information
or advice. The Constitutional Court in Electronic Media Network Limited and others v
E-TV (Pty) Ltd and others (E-TV)13, confirmed that a consultation is distinct from
negotiations and it is not geared towards reaching an agreement. It is not a consensus
seeking exercise. The duty to consult requires no more than that the views of
interested persons be obtained. Regard been had to the text of the subsection, the
envisaged consultation must precede the exercise of statutory power (setting of

envisaged consultation must precede the exercise of statutory power (setting of
numerical targets). The numerical targets involved herein were set on 15 April 2025 .
Such must imply that a consultation must have happened before 15 April 2025. There
was evidence of a consultation process since 2019. All of that preceded the setting of
the numerical targets. The section does not prescribe as to when and how the
envisaged consultation must happen. Of significance is that the exercise of statutory
power (setting of numerical numbers) ought to happen after the consultation process.

12 South African Concise Oxford Dictionary Oxford University Press 2005.
13 [2017] ZACC 17 (8 June 2017).

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It matters not as to when and how the consultation happens, as long as the exercise
of power happens after the consultation process. Then and in that event , the section
would have been complied with. The purpose of the consultation is to ensure that the
equitable representation of suitably qualified people from designated groups at the
occupational levels in the workforce is taken care of.

[34] The purpose of consultation is achieved if the equitable representation of suitably
qualified people is realised. Suitably qualified people refer to persons with formal
qualifications, prior learning, relevant experience , or capacity to acquire, within
reasonable time, the ability to do the job or the combination of these factors (sections
20(3) and (4) of the EEA). It is not the applicants’ case that the undisputed consultation
process did not achieve its purpose. The applicants have a view that consultation must
take the similar form of public participation envisaged in certain provisions of the
Constitution and Municipal legislations. It cannot be so. This Court is satisfied that the
consultation envisaged in the subsection has happened. The consultation
contemplated in this subsection must be considered with in the context of subsection
(4) as well . The publication contemplated in subsection (4) is another form of
consultation14. In E-TV, it was confirmed that publishing of a draft policy by notice in
the Gazette also satisfies the duty to consult.

[35] Given the meaning and purpose of a consultation, it is difficult for a Court to
emerge with a finding that a consultation process is not adequate. What a Court is
required to determine is whether consultation as a process happened or did not
happen. The question of adequacy will be close to equating consultation with
negotiations. The subsection did not prescribe the form a consultation with the relevant
sectors must take. All that is required is to ensure that voices are heard during a

sectors must take. All that is required is to ensure that voices are heard during a
consultation process. This Court takes a view that even if the word sector does not
necessarily refer to employers and employees , the process contemplated in
subsection (4) provides employees , as interested parties with an opportunity to

14 See 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); and Central African Road Services v The Minister of Transport and
Another (62873/2014) [2019] ZAGPPHC 56 (28 February 2019).

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comment. The employees as interested parties ought to respond to the invitation to
comment or give input by speaking exhaustively when given such an opportunity.15

[36] Subsection (3) refers to “a notice” as opposed to “any notice”. Clearly it refers to
a notice setting the numerical numbers as contemplated in sub -section (2). In the
present instance, it refers to the 15 April 2025 notice. The subsection endows the
Minister with a wide discretion as to how the setting of numerical targets should
happen. Of significance, the Minister may set the numerical targets on the basis of any
other relevant factor. This, in my view, puts paid to the nitpicking exercise engaged in
by the applicants. Counsel for the applicants was at pains to compare upward, and
downward percentages of targets set by the Minister in the various notices. This is
unnecessary because the Minister within his or her discretion may set the numerical
targets on the basis of any relevant factor . Taking into account that the setting of
numerical targets is supported by the advice of the relevant sectors and the
Commission for Employment Equity (CEE) before being set by the Minister, it is difficult
to accept that the suggested numerical targets would escape the hawk eye of the CEE
and all 18 economic sectors. Clearly, in setting the numerical targets, the Minister does
not roam freely or have unfettered discretion . First, the Minister must consult.
Secondly, the Minister must obtain advice of the CEE. Thirdly, in identifying the sectors
regard must be had to the relevant code , not only issued, but published by Stati stics
South Africa. With all the above statutory safety pins, it is difficult to fathom
arbitrariness in the process of setting numerical targets.

[37] Subsection (4) specifically refers to a draft of any notice as opposed to a draft of
a notice. The argument that the notice of 15 April 2025, in the final form it took, ought

a notice. The argument that the notice of 15 April 2025, in the final form it took, ought
to have been published within the contemplation of this subsection is without merit . It
is a submission that is in conflict with the clear language and the purpose of this
subsection. It is common cause that in 2023 and 2024, the Minister published notices
which contained numerical targets proposed for the 18 sectors already identified after
what appears to be a rigorous process . Taking into account the fact that the drafts
seek to source comments of interested parties , the notice of 15 April 2025 di d not
require to still undergo a comment process. After 2023 and 2024, it must axiomatically

15 E-TV para 43.

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follow that interested parties were allowed an opportunity to comment. Allow, does not
mean compel or even consult per se . Allow, means permit to do something. As
indicated earlier an employee in the sector qualifies to be an interested party . A
comment is a remark expressing an opinion or reaction. Since there is no dispute that
in 2023 and 2024 the proposed drafts were published, it must also axiomatically follow
that interested parties were permitted to remark or express an opinion or reaction. The
30 days period was , on the uncontested facts, without any doubt permitted by the
Minister. The view that the thirty-day period ought to be reckoned from the day the 15
April 2025 notice is published in a draft form, which it is common cause did not happen,
is rejected by this Court. It must be reckoned from the 2023/4 publications.

[38] To the extent that the numerical targets set on 15 April 2025 are different from
those set out in 2023 and 2024, this Court agrees with the Minister that they are bound
to differ. The 2023/24 numbers are proposed and not cast in stone. Logic dictates that
the process of permitting remarks and expression of opinion must lead to change of
data. This Court is not bemused by the change of numbers after the 2023/4 notices; it
was bound to happen. It serves as proof of permitting remarks and expression of
opinions. The 2023/4 notices qualify as drafts o f any notice within the contemplation
of the subsection.

[39] Given the above interpretation, this Court comes to an irresistible conclusion that
the Minister did not fail to consul t or publish as required by the law set out in section
15A of the EEA. Accordingly, there is no legal basis to interdict nor suspend the actions
of the Minister. The application for an interdict or suspension falls to be dismissed.
Before this Court concludes, it must pertinently deal with the arbitrariness allegation
and the issue of the targets discriminating women. I pause to remark that this issue

and the issue of the targets discriminating women. I pause to remark that this issue
snugly fits in part B as opposed to part A. However, since it was argued before this
Court, it must deal with it despite the preliminary view of its relevance at this stage.

The alleged arbitrariness and discrimination of women
[40] The power of the Minister is to set numerical targets and not numerical goals .
Numerical targets are numbers that the Minister aims for in any sector . Numerical
goals are numbers that a designated employer aims to achieve. By way of example,

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a Minister may aim for the appointment of 10 managers over a period of 5 years in a
particular sector. A designated employer may aim to achieve the appointment of 2 of
the 10 managers every year for a period of 5 years. Section 20(1) of the EEA obligates
a designated employer to prepare and implement an employment equity plan which
will achieve reasonable progress towards employment equity. The employment equity
plan must state the objectives to be achieved for each year , the affirmative action
measures to be implemented, and identify by numerical goals to achieve the equitable
representation of suitably qualified people from the designated groups and the
timetable within which to achieve the numerical goals set by an employer.

[41] Undoubtedly, numerical goals are set out by an employer in an employment
equity plan, which is required to be a product of consultation with employees (section
16, 17 and 20 of the EEA). In developing an employment equity plan, an employer
seeks to achieve reasonable progress towards employment equity. The purpose of
setting numerical targets is to ensure the equitable representation . Owing to the
rigorous process that precedes the setting of numerical targets, this Court rejects the
argument of arbitrariness. The numerical targets were not and could not have been
whimsically set by the Minister. Something is done arbitrarily, if it is based on random
choice or personal whim r ather than any reason or system . The relevant code
published by Statistic s South Africa, informs the setting of numerical targets. The
advice of the CEE is factored in when numerical targets are set. Consultation with the
relevant sectors also informs the setting of numerical targets.

[42] Regarding the discrimination of women, the case in the founding affidavit is that
the arbitrariness of the 2025 targets is shown in a particular way in those sectors in
which women will be substantially disadvantaged by the 2025 targets. What appears

which women will be substantially disadvantaged by the 2025 targets. What appears
to be the gripe of the applicants is that in their own interpretation of the numerical
targets in particular sectors women will be disadvantaged. For the purpose of part A,
what requires determination is whether the Minister acted outside the parameters of
the enabling section, to a point that the Minister’s action is to be interdicted and or
suspended. Discrimination does not necessarily equate disadvantage. Section 9(3) of
the Constitution specifically provides that the State may not unfairly discriminate.

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Impliedly, the discrimination, even if named disadvantaged in another name, must be
one that is unfair16.

[43] Of greater significance, section 9(2) provides that equality includes the full and
equal enjoyment of all rights and freedoms. In order to promote the achievement of
equality, legislative and other measures designed to protect or advance persons, or
categories of persons, disadvantaged by unfair discrimination may be taken. In
disputing the allegations of arbitrariness, the respondents testified that the setting of
sectoral numerical targets was not a mere thumbsuck as the applicants seem to
suggest. This C ourt agrees with the contention by the respondents that this Court
cannot be called upon to make a determination as to whether the calculations so
employed by the Minister are arbitrary. More importantly, owing to the fact that the
legislature chose the Minister as a functionary to set the numerical targets, this Court
cannot determine a specific sectoral numerical target that should apply. Such would
equate judicial overreach and a disrespect of the separation of powers doctrine.

[44] This argument of arbitrariness that disadvantages women clearly ignores the fact
that what the Minister is statutorily empowered to do is to set numerical targets as
opposed to goals . It will be the setting of numerical goals , which is the statutory
function of an employer, that may lead to a disadvantage of women. It is for that reason
that section 15(3) of the EEA, specifically permits numerical goals and exclude quotas.
It can only be in the process of setting numerical goals that a designated employer
may include consciously or unconsciously quotas17. Another aspect that seems to
escape the contentions made with regard to arbitrariness is that section 30(2)(b) of the
EEA empowers the CEE to research and report to the Minister on any matter relating
to the application of this Act , including appropriate and well -researched norms and

to the application of this Act , including appropriate and well -researched norms and
benchmarks for setting of numerical goals in the various sectors. Th e provisions of
section 30(2)(b) underscore the need of an advice from the CEE when the Minister
sets numerical targets. Clearly, it must be accepted that the CEE would advise the
Minister accordingly, if the numerical targets to be set by the Minister disadvantages
women to a point of unfair discrimination. It is not the case of the applicants that the

16 Harsken v Lane NO and others 1997 (11) BCLR 1489 (CC) at para 43.
17 South African Police Services v Solidarity obo Barnard (2014) ILJ 2981 (CC).

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CEE did not dispense with an advice or dispensed with a deficient one. Thus, this
Court must accept that , as an expert in the field, the CEE provided an appropriate
advice.

[45] Last but not least, section 42 (1)(aA) of the EEA , provides that i n determining
whether a designated employer is implementing employment equity in compliance with
the Act, a factor as to whether the employer has complied with a sectoral target set
out in terms of section 15A applicable to that employer, may be taken into account. In
turn, section 42(4) specifically provides that in any assessment of its compliance with
this Act, a designated employer may raise any reasonable ground to justify its failure
to comply. In terms of section 53(6)(b), a Minister will issue a certificate of compliance
to any employer who has raised a reasonable ground to justify its failure to comply as
contemplated by section 42(4).

[46] Where an employer, in setting numerical goals choses not to comply with the
numerical targets set by the Minister in terms of section 15A because such will
discriminate against women, such a ground is reasonable to justify failure to comply.
Therefore, with such valid alternative remedy, this Court cannot exercise its powers to
issue a discretionary remedy of an interdict. There is simply no basis for an irreparable
harm to be suffered by employers in the circumstances where a justification may be
hoisted to save it from the non-compliance wrath by the Minister.

The issue of costs
[47] When it comes to costs, a Court possesses a very wide discretion. Counsel for
the applicants argued that when deciding the issue of costs this Court must apply the
Biowatch18 principle. A debate ensued as to whether the principle of Biowatch finds
application or not. Counsel for the respondents submitted that the present application
does not seek to enforce a constitutional right guaranteed in the BoR, therefore the

does not seek to enforce a constitutional right guaranteed in the BoR, therefore the
principle must not be applied, and its application is being abused by the applicants. I
chose not to resolve that dispute but apply my judicious discretion in deciding the issue
of costs. Given the importance of this matter, particularly because the same parties

18 Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14; 2009 (6) SA 232 (CC);
2009 (10) BCLR 1014 (CC) (3 June 2009).

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may lock horns in due course when dealing with part B of this matter, I take a view that
an appropriate order to make is for each party to pay its own costs.

Conclusions
[48] In summary, this Court concludes that an interdictory relief is not appropriate in
the circumstances of the present case. A suspension of the exercise of statutory
powers is inappropriate and the provisions of section 172(1)(b) of the
Constitution finds no application. This Court is not in a position to examine
whether the numerical targets set by the Minister (exercise of statutory power)
are lawful or not. A Court of review is better placed to conduct such an
examination, when considering the rationality or otherwise of the exercise of the
statutory powers. This Court disagrees with a contention that the numerical
targets set by the Minister are arbitrary and discriminatory of women. Regarding
costs, the appropriate order is that of each party paying its own costs.

Order
[49] Because of all the above reasons, I make the following order:

1. The application is heard as one of urgency.
2. Part A of the present application is dismissed.
3. Each party must bear its own costs.




____________________________
GN MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA



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Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e-mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand-down is deemed to be 28 August 2025.


APPEARANCES:
For the Applicants: AJ D’ Oliviera with N Fourie
Instructed by: Kriek Wassenaar & Venter Inc, Pretoria.
For the Respondents: F Nalane SC with F Karachi
Instructed by: State Attorney, Pretoria
Date of Hearing 15 August 2025
Date of judgment: 28 August 2025