When Helen Zille claims that South Africa’s Employment Equity (EE) Amendments amount to “unfair discrimination,” is she misreading the Constitution, or deliberately distorting it? The Democratic Alliance’s (DA) legal challenge against the EE Amendment Act relies on flawed logic, ignores binding precedent, and risks undermining one of the few effective tools for dismantling apartheid’s economic legacy.

At the heart of the debate is Section 9(2) of the Constitution, which explicitly empowers the state to take “legislative and other measures” to advance those disadvantaged by past discrimination. The Constitutional Court has repeatedly affirmed this principle, most notably in Minister of Finance v Van Heerden (2004), ruling that redress policies constitute fair discrimination if they are rationally designed to achieve equality. The EE Amendment Act meets this test: it establishes sector-specific targets through consultation, not rigid quotas, ensuring flexibility while correcting systemic exclusion.

Why has transformation been so slow? Apartheid’s economic architecture was designed to exclude Black South Africans from ownership, skilled jobs, and wealth accumulation. While the EE Act (1998) sought to dismantle this, corporate South Africa has often resisted meaningful change. In the early 2000s, many companies treated EE as a ‘tick-box exercise,’ leading to superficial compliance. For example, a 2005 Labour Court case (SACCAWU v Woolworths) exposed how firms would hire Black staff in junior roles while maintaining all-White boards.

Yet some JSE-listed companies demonstrate that transformation can succeed when pursued authentically. MTN South Africa achieved 50% Black representation in senior management by 2022 (L3-L4 levels) through its Accelerated Leadership Program and mandatory succession planning for senior roles. Similarly, Absa tied 30% of executive bonuses to EE targets, driving Black senior management growth from 32% (2017) to 43% (2021) — a 34% increase in four years. These cases prove that when companies move beyond compliance to genuine culture change, transformation accelerates without compromising competence, directly contradicting the DA’s alarmist predictions.

Even today, however, only 16.9% of top managers are African, despite Africans comprising 81% of the population (CEE 2023). This stagnation isn’t accidental—it reflects a reluctance to cede power among those who still benefit from the status quo.

Zille’s alarmist claim that the amendments will “exclude hundreds of thousands from employment” collapses under scrutiny. According to the Commission for Employment Equity (CEE), Black representation in top management rose from 13.6% (2002) to 31.1% (2023) without mass job losses or economic collapse. However, progress has plateaued. The 2023 CEE Report reveals Africans hold just 26.4% of senior management roles, while Whites, 13% of the population, occupy 50.1%. This disparity persists because:

1. Companies often promote a few Black figureheads while maintaining White-dominated leadership. The 2021 PwC Report found 40% of JSE-listed firms still have all-White executives. Others exploit loopholes by reclassifying mid-level roles as “senior management” or favouring Coloured and Indian candidates over Africans. For instance, Africans hold only 16.9% of top management despite being the majority (CEE 2023).
2. Black professionals face glass ceilings and cultural marginalisation. A 2023 McKinsey study found that they are 35% more likely to leave corporate jobs due to workplace bias. Informal networks, mentorship, and social capital often exclude them, perpetuating homogeneity. The South African Board Report (2022) showed that only 11% of JSE-listed CEOS are African.
3. The Department of Labour (2022) found that 60% of companies fail to meet EE targets. Many claim “skills shortages” while underinvesting in training. For example, B-BBEE Commission data reveals only 3% of corporate training budgets target Black women. Others litigate to delay compliance, as seen in Solidarity’s lawsuits against Eskom’s EE policies.

The DA’s opposition to EE is ideologically inconsistent. While the party condemns ANC cadre deployment—a valid critique—it ignores that EE mandates merit-based appointments, unlike politically driven cadre posts. By conflating the two, the DA undermines redress. Moreover, the party’s claim that EE harms the economy ignores evidence:

• Since 1994, South Africa’s Black middle class has expanded from 350,000 households to over 1.2 million, a transformation fuelled by employment equity and B-BBEE (World Bank 1994; UCT Unilever Institute 2017). This growth has created new markets, with Black consumer spending now exceeding R400 billion per year (Nielsen 2023), and stabilised the economy by diversifying its base. Contrary to the DA’s claims, Stats SA (2023) data shows no evidence that EE policies cause job losses—unemployment stems from broader structural failures
• Diverse companies outperform homogeneous ones by 35% (McKinsey 2020).
  If the DA truly supports “equal opportunity,” why does it oppose the very policies that level the playing field? Its stance risks preserving apartheid-era inequities.

To break the plateau, South Africa needs:

1. Stricter Enforcement: Penalties for non-compliance (e.g., fines, disqualification from state tenders).
2. Pipeline Development: Mandatory graduate programs and mentorship for Black professionals.
3. Cultural Audits: Independent reviews of corporate inclusivity, as done by Nedbank’s Equity Lab.

Makola is a senior lecturer in the Department of Business Management at Unisa. She writes in her personal capacity.