SOUTH AFRICA:

LABOUR

EMPLOYMENT EQUITY – THE NEW SECTORAL TARGETS HAVE ARRIVED

Following the amendments to the Employment Equity Act, 1998 that introduce sector-specific numerical targets, which came into force on 1 January 2025, the Department of Employment and Labour released the final numerical targets.

The Government Gazette dealing with the Determination of Sectoral Numerical Targets was released on 15 April 2025 and will be effective from this date.

This means that employers will need to align their employment equity plans with the final sectoral numerical targets. In anticipation of the final targets, a number of employers were using the draft targets circulated in February 2024 There have been a number of upward and downward movements in the targets, which differ per sector and occupational level.

For all sectors, however, the targets for people with disabilities have increased from the proposed 2 percent of the entire workforce to 3 percent of the entire workforce. As with the previous draft targets, the final targets are 5-year sectoral numerical targets for the various population groups and gender for Top Management, Senior Management, Professionally Qualified and Skilled levels, and for employees with disabilities.

WASTE

REGULATIONS: DISPOSAL STRATEGY FOR ABSORBENT HYGIENIC PRODUCTS

Forestry, Fisheries & Environment Minister Dion George has, by notice in the Government Gazette, announced his intention to publish regulations for the disposal of absorbent hygienic products.

He said that ever since Procter & Gamble first produced Pampers in 1961, the popularity of diapers and AHPs in general has grown steadily. AHPs provide a convenient, less unpleasant, better hygiene solution for users than the conventional alternatives.

Demand for AHPs has grown with the increase in population, the rise of the two-salary households, which increased disposable incomes, but which gave people less time for domestic chores, and the emergence of a throw-away culture.

DEPARTMENT OF FORESTRY, FISHERIES AND THE ENVIRONMENT

No 52495 NO. 6114 11 April 2025

NATIONAL ENVIRONMENT MANAGEMENT: WASTE ACT, 2008 (ACT NO. 59 OF 2008)

CONSULTATION ON THE DRAFT STRATEGY RELATING TO THE DESIGN OF PRODUCT LIFE CYCLE, RE-USE, CONTROLS, AND DISPOSAL OF ABSORBENT HYGIENIC PRODUCTS.

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INFORMATION REGULATOR -POPIA AND PAIA

THE REGULATOR HAS LAUNCHED A BRAND NEW ESERVICES PORTAL!

This Registration Portal has been retired.

Starting from the 1st of May 2024, all online services from the Regulator will be available on a brand new eServices portal.

From registering Information Officers to submitting PAIA Annual Reports, the portal offers a wide range of services to help organisations navigate the complex landscape of data protection regulations. With seamless navigation and user-friendly features, you will find everything you need to achieve and maintain compliance.

Click here to access the eServices portal.

COMPETITION MATTERS

Final Guideline On Internal Restructuring

On 4 April 2025, the Competition Commission published its final Guideline on Internal Restructuring in terms of the Competition Act, 1998.

According to the guideline, internal restructuring refers to transactions within a group of firms and, in determining whether a transaction constitutes an internal restructuring, the commission will examine the current control structure and the control structure that will come into existence after implementation of the proposed transaction.

The guideline aims to provide guidance on what the commission is likely to determine to be a transaction that constitutes an internal restructuring, and the limited circumstances when a merger notification may be required regardless.

The guideline is not binding on the commission, and merger analysis is done on a case-by-case basis. Further, the guideline deals with control under section 12(1) and (2) of the Act only to the extent that it is relevant for assessing whether a transaction constitutes an internal restructuring.

See our Gazette Watch for more information on each of these topics –

Lee’s Compliance Subscribers click here https://thelegalteam.co/dashboard/library#115717 

Non Subscribers click here – https://leescompliance.co.za/ 

AGRICULTURE

LAW AND TYPE OF NOTICE

Veterinary and Para-Veterinary Professions Act:

Regulations relating to Veterinary and Para-Veterinary Professions: Amendment

G 52505 GeN 3136

14 April 2025

APPLIES TO: 

VETERINARY PROFESSION

SUMMED UP

Amendment to Fees Payable

FULL TEXT

DETAILS

LINK TO FULL NOTICE

Veterinary and Para-Veterinary Professions Act: Regulations relating to Veterinary and Para-Veterinary Professions: Amendment

G 52505 GeN 3136

14 April 2025

52505gen3136.pdf

BUSINESS

LAW AND TYPE OF NOTICE

Close Corporations Act:

Notice to accredit South African Institute of Taxation as a professional body

G 52501 GoN 6121

11 April 2025

APPLIES TO: 

CLOSE CORPORATIONS

SUMMED UP

Declaring members of the South African Institute Of Taxation to be qualified to perform the duties of an Accounting Officer for a Close Corporation

FULL TEXT

DETAILS

LINK TO FULL NOTICE

Close Corporations Act: Notice to accredit South African Institute of Taxation as a professional body

G 52501 GoN 6121

11 April 2025

52501gen6121.pdf

LAW AND TYPE OF NOTICE

Companies Act:

Signed CIPC closure notice during Easter weekend

G 52495

11 April 2025

DETAILS

DEPARTMENT OF TRADE, INDUSTRY AND COMPETITION

NO. 6117 11 April 2025

COMPANIES AND INTELLECTUAL PROPERTY COMMISSION (CIPC)

NOTICE

Taking into consideration that CIPC official office days are Mondays to Fridays and do not include week-ends or public holidays, notice is hereby given in terms of and for purposes of the Acts mentioned in the Schedule below, that CIPC will be closed to the public from 12h00 on Thursday 17 April 2025 for the Easter week-end.

The CIPC Offices at –

a) the Department of Trade, Industry and Competition (the dtic) (77 Meintjies Street, Block F – Entfutfukweni) in Sunnyside, Pretoria;

b) 1st floor, Office 103, Sancardia Building, 541 Madiba Street, Arcadia, Pretoria;

c) Talis House , No 17 Simmonds street, Cnr Main and Simmonds street, Marshalltown, Johannesburg;

d) Norton Rose House No 8, Shop Number 3, Riebeek Street, Thibault Square, Cape Town; and

e) (CIPC officials) at Trade and Investment KwaZulu Natal (TIKZN) situated at 1 Arundel Close, Kingsmead Office Park, Kingsmead Boulevard, Stalwart Simelane Street in Durban, will re-open at 08h00 on Tuesday 22 April 2025 following Easter Monday 21 April 2025 (public holiday).

Please use Web Services: www.cipc.co.za , www.eservices.cipc.co.za and www.bizportal.gov.za.

SCHEDULE

Trade Marks Act, 1993

Patents Act, 1978

Design Act, 1993

Copyright Act, 1978

Companies Act, 2008

Close Corporations Act, 1984

Co-operatives Act, 2005

Registration of Copyright in Cinematograph Film Act, 1977

LINK TO FULL NOTICE

Companies Act: Signed CIPC closure notice during Easter weekend

G 52495

11 April 2025

52495gon6117.pdf

COMPETITION

LAW AND TYPE OF NOTICE

Competition Act:

Extension of commenting period for draft interim block exemption

G 52501 GoN 6120

– Comment by 11 May 2025

11 April 2025

APPLIES TO: 

HEALTHCARE SECTOR

FULL TEXT

DETAILS

Link to document requiring comment:

Competition Act: Interim block exemption for tariffs determination in Healthcare Sector: Comments invited

G. 52111

GoN 5870

– Comment by 16 Mar 2025

LINK TO FULL NOTICE

Competition Act: Extension of commenting period for draft interim block exemption

G 52501 GoN 6120

– Comment by 11 May 2025

11 April 2025

52501gen6120.pdf

CUSTOMS AND EXCISE

LAW AND TYPE OF NOTICE

Customs and Excise Act, 1964:

Amendment to Part 3F of Schedule No. 1 (No. 1/3F/7)

G 52491 RG 11826 P 6109

11 April 2025

APPLIES TO: 

1.     Fuel Combustion:

·       Companies involved in the production, distribution, and consumption of fossil fuels.

·       Power generation facilities using coal, oil, or natural gas.

2.     Fugitive Emissions:

·       Mining operations, particularly those extracting coal, oil, and natural gas.

·       Industries involved in the processing and transportation of fossil fuels.

3.     Industrial Processes:

·       Manufacturing plants, especially those in heavy industries like cement, steel, and chemical production.

·       Any industrial activity that results in significant CO₂ emissions during production processes.

SUMMED UP

1.     Amendment Details:

·       The amendment is made under section 48 of the Customs and Excise Act, 1964.

·       It has retrospective effect from January 1, 2025.

2.     Environmental Levy Rates:

·       Fuel combustion: R236.00 per ton of CO₂ emissions.

·       Fugitive emissions: R236.00 per ton of CO₂ emissions.

·       Industrial processes: R236.00 per ton of CO₂ emissions.

FULL TEXT

DETAILS

LINK TO FULL NOTICE

Customs and Excise Act, 1964: Amendment to Part 3F of Schedule No. 1 (No. 1/3F/7) (English/Afrikaans)

G 52491 RG 11826 P 6109

11 April 2025

52491gen6109.pdf

ENVIRONMENTAL

LAW AND TYPE OF NOTICE

National Radioactive Waste Disposal Institute Act:

Regulations on the format of an application for a Radioactive Waste Disposal Certificate

G 52491 RG 11826 P 257

– Comment by 11 Apr 2025

11 April 2025

APPLIES TO: 

1.     Producers of Radioactive Waste:

·       Any entity that generates radioactive waste as part of its operations, such as nuclear power plants, medical facilities using radioactive materials, and research institutions.

2.     Authorized Waste Disposal Facilities:

·       Facilities that are permitted to dispose of radioactive waste under the National Nuclear Regulator Act, 1999.

3.     National Radioactive Waste Disposal Institute (NRWDI):

·       The institute responsible for managing radioactive waste disposal on a national basis

SUMMED UP

1.     Purpose and Application of Regulations:

·       The regulations aim to establish the prescribed format for the application for a certificate for the disposal of radioactive waste.

·       They apply to any producer of radioactive waste in South Africa who needs to dispose of such waste at an authorized disposal site.

2.     Application Process:

·       Producers of radioactive waste must submit a written application for a certificate to the Chief Executive Officer (CEO) of the National Radioactive Waste Disposal Institute.

·       The application must be accompanied by certified copies of registration documents and, if the applicant is a legal entity, a resolution authorizing the application.

3.     Required Documentation:

·       Two printed copies of the application, including one original, must be submitted to the specified address.

·       An electronic copy of the application must also be sent via email.

·       The CEO will review the application to ensure compliance with the acceptance criteria for radioactive waste disposal.

4.     Notification of Application Outcome:

·       The CEO must inform the applicant of the outcome of their application in writing within 90 days of receiving the complete application.

5.     Form A:

·       The document includes Form A, which is the application form for the certificate for the disposal of radioactive waste.

FULL TEXT

DETAILS

LINK TO FULL NOTICE

National Radioactive Waste Disposal Institute Act: Regulations on the format of an application for a Radioactive Waste Disposal Certificate

G 52491 RG 11826 P 257

– Comment by 11 Apr 2025

11 April 2025

52491reg11826gon257.pdf

ACTION

Ensure that you submit your comments.

LAW AND TYPE OF NOTICE

National Environmental Management: Waste Act:

Draft strategy: Design of product life cycle, re-use, controls, and disposal of absorbent hygienic products: Comments invited

G 52495 GoN 6114

11 April 2025

APPLIES TO: 

1.     Government Departments:

·       Department of Forestry, Fisheries and the Environment (DFFE): Responsible for overseeing the implementation of the strategy.

·       Department of Health (DOH): Involved in public health aspects and the distribution of reusable AHPs.

·       Department of Trade, Industry and Competition (DTIC): Engaged in the economic aspects of the strategy.

·       Department of Science and Innovation (DSI): Supports research and development of biodegradable materials.

·       Department of Co-Operative Governance and Traditional Affairs (COGTA): Coordinates with local municipalities.

2.     Local Municipalities:

·       Responsible for implementing waste management practices, including collection, transportation, and disposal of AHP waste.

3.     AHP Producers and Producer Responsibility Organizations (PROs):

·       Companies that manufacture absorbent hygienic products and their associated PROs will need to comply with new design, production, and disposal standards.

4.     Private Sector:

·       Waste Management Companies: Involved in the collection, transportation, and treatment of AHP waste.

·       Recyclers: Companies that process AHP waste into reusable materials.

·       Industrialists: Businesses that may use refuse-derived fuels (RDF) from AHP waste.

5.     Research and Development Institutions:

·       Council for Scientific and Industrial Research (CSIR): Conducts research on biodegradable materials and recycling technologies.

·       Higher Education Institutions (HEIs): Collaborate on research and development projects.

6.     Non-Governmental Organizations (NGOs) and Non-Profit Organizations (NPOs):

·       Engage in public awareness campaigns and support community-based waste management initiatives.

7.     Consumers:

·       General public, especially in rural and informal settlements, who will be educated on proper disposal practices and may participate in collection programs.

8.     Retailers:

·       Involved in the distribution of sustainable and reusable AHPs.

SUMMED UP

Background

• AHPs include products like diapers and feminine hygiene products, which have grown in popularity due to convenience and hygiene benefits.
• Challenges: AHP waste is primarily disposed of in landfills, causing environmental and health issues due to their long decomposition time (200-500 years).

Stakeholder Engagement

• Workshops were held across provinces to gather information and share ideas on the draft strategy.

Statement of the Problem

• Despite policies promoting reuse and recycling, most waste is still disposed of in landfills.
• Issues include the durability of AHP materials, health risks, cultural disposal practices, and the economic challenges of recycling AHPs.

Quantifying AHP Waste

• Estimates suggest around 900,000 tons of AHP waste are disposed of annually in South Africa.

Rationale for the Strategy

• Benefits include reducing disposal costs, creating jobs, protecting the environment, and supporting sustainable development.

Strategic Interventions

1.     Reduce AHP Waste: Educate consumers, implement collection programs, and promote reusable AHPs.

2.     Design Out AHP Waste: Develop AHPs with reusable components and faster biodegradable materials.

3.     Recover Materials from AHP Waste: Implement separation at source (S@S) programs and develop treatment facilities.

4.     Re-circulate AHP Resources: Set standards for recycled materials and create market demand for AHP-derived products.

Financing and Supporting the Strategy

• Funding sources include EPR levies, carbon reduction grants, and international grants.

Monitoring and Evaluation

• The strategy’s success depends on phased implementation, public awareness campaigns, and robust collection systems.

Supporting Initiatives

• National Communication Plan: Raise awareness about AHPs and their environmental impacts.
• Information Management: Document AHP statistics and treatment volumes.

FULL TEXT

DETAILS

Please click on the link provided below to view the full document.

LINK TO FULL NOTICE

National Environmental Management: Waste Act: Draft strategy: Design of product life cycle, re-use, controls, and disposal of absorbent hygienic products: Comments invited

G 52495 GoN 6114

11 April 2025

52495gon6114.pdf

ACTION

1. Design and Production Compliance

• Re-design AHPs: Organizations must redesign AHPs to include reusable components and use biodegradable or compostable materials that decompose within five years.
• Standards Compliance: Adhere to new standards for reusable AHP materials, including recyclability, biodegradability, compostability, price levels, quality standards, and hygienic cleaning requirements.

2. Waste Management Compliance

• Separation at Source (S@S): Implement S@S programs to ensure AHP waste is separated from general waste at the point of disposal.
• Collection Programs: Establish and maintain regular collection programs for AHP waste from households and drop-off centers.
• Treatment Facilities: Invest in small-scale modular treatment facilities and, if feasible, large-scale industrial treatment plants for AHP waste.

3. Consumer Education and Engagement

• Public Awareness Campaigns: Conduct national public awareness campaigns to educate consumers about the risks of improper disposal of AHPs and promote sustainable use practices.
• Consumer Participation: Encourage consumer participation in AHP collection and recycling programs, possibly offering financial incentives.

4. Environmental and Health Compliance

• Environmental Impact Assessments (EIA): Conduct EIAs for new AHP waste treatment facilities to ensure compliance with environmental regulations.
• Health and Safety Standards: Ensure that the handling, transportation, and treatment of AHP waste comply with health and safety standards to protect workers and the public.

5. Extended Producer Responsibility (EPR)

• EPR Scheme Implementation: Integrate the management of post-consumer AHP waste into operations and adhere to published targets in the EPR notice.
• EPR Levies: Pay EPR levies to fund the management and recycling of AHP waste.

6. Monitoring and Reporting

• Performance Monitoring: Regularly monitor and report on the performance against key performance indicators (KPIs) outlined in the strategy.
• Waste Information Management: Document AHP statistics, including production volumes, disposal volumes, treatment volumes, and recovery rates.

7. Partnerships and Collaboration

• Stakeholder Collaboration: Collaborate with government departments, municipalities, research institutions, NGOs, and private sector partners to implement the strategy effectively.

8. Funding and Grants

• Seek Funding: Apply for grants and funding opportunities related to carbon reduction, clean water protection, sustainable rural development, and support for indigent families.

LAW AND TYPE OF NOTICE

National Environmental Management Act: Notification:

Environmental authorisation application process

G 52495 GeN 3129

11 April 2025

APPLIES TO: 

Organizations that explore all saleable gases including but not limited to Methane, Carbon Dioxide, Helium, and Nitrogen within Exploration Right (ER) 386

FULL TEXT

DETAILS

LINK TO FULL NOTICE

National Environmental Management Act: Notification: Environmental authorisation application process

G 52495 GeN 3129

11 April 2025

52495gen3129.pdf

INTERNATIONAL TRADE

LAW AND TYPE OF NOTICE

International Trade Administration Act:

Exportation of ferrous and non-ferrous waste and scrap metal

G 52506 RG 6122 GoN

14 April 2025

APPLIES TO: 

1.     International Trade Administration Commission of South Africa (ITAC):

·       ITAC is responsible for implementing the Price Preference System (PPS) and issuing export permits for scrap metal

2.     Scrap Metal Processing Industry:

·       Companies involved in processing scrap metal domestically will benefit from the directive as it ensures a supply of affordable, quality scrap metal

3.     Exporters of Scrap Metal:

·       Exporters must comply with the directive by offering scrap metal for domestic sale at a discounted price before exporting

4.     Domestic Consuming Industry:

·       Industries that use scrap metal as raw material, such as steel manufacturers, will have access to cheaper and higher-quality scrap metal

5.     Employment and Industrial Capacity:

·       The directive aims to safeguard employment and promote industrial capacity, affecting workers and businesses in the scrap metal and related industries

SUMMED UP

1.     Background:

·       The directive builds on previous regulations issued in 2012 and 2013, which control the export of scrap metal to ensure it is first offered for sale domestically at a discounted price.

·       The aim is to ensure an affordable supply of quality scrap metal for the domestic processing industry, safeguard employment, and promote industrial capacity and infrastructure development.

2.     Price Preference System (PPS):

·       ITAC (International Trade Administration Commission of South Africa) will not permit the exportation of certain scrap metal unless it has been offered for domestic sale at a price discount to an international benchmark price.

·       The administrative aspects of the PPS are detailed in guidelines published in 2018.

FULL TEXT

DETAILS

DEPARTMENT OF TRADE, INDUSTRY AND NO. 6122 14 April 2025

DEPARTMENT OF TRADE, INDUSTRY AND COMPETITION

NOTICE NO 6122 APRIL 2025

TRADE POLICY DIRECTIVE ISSUED IN TERMS OF SECTION 5 OF THE INTERNATIONAL TRADE ADMINISTRATION ACT, 2002 ON THE EXPORTATION OF FERROUS AND NON-FERROUS WASTE AND SCRAP METAL

I, Mpho Parks Tau, Minister of Trade, Industry and Competition (“the Minister”), issue the following trade policy directive in terms of section of the International Trade Administration Act, 2002 (Act No. 71 of 2002) (“the Act”).

1. BACKGROUND

1.1 On 10 February 2012, the then Minister of Economic Development, acting in terms of section 6 of the Act, issued Notice No. R.92 in Government Gazette No. 35007, as amended from time to time (“Export Control Notice”), which prescribes inter alia that certain goods including ferrous and non-ferrous waste and scrap metal shall not be exported from the Republic of South Africa except by virtue of an export permit issued by the International Trade Administration Commission of South Africa (“ITAC”) in terms of Section 6 of the Act, and in which such goods are specifically described.

1.2 On 10 May 2013 the Minister of Economic Development issued a Trade Policy Directive to ITAC in terms of section 5 of the Act under Notice No. 470 in Government Gazette No. 36451 (“Policy Directive”) directing ITAC to exercise its powers under the Act to regulate the exportation of ferrous and non-ferrous waste and scrap metal (“scrap metal”) in accordance with the policy contained therein.

1.3 The objectives of the Directive are inter alia to regulate exports so as to ensure an affordable supply of quality scrap metal, an essential material to the domestic processing industry, to safeguard employment and to maintain and increase industrial capacity to promote infrastructure development.

1.4 Pursuant to the Directive, ITAC established a price preference system (“PPS”). In terms of the PPS, ITAC will not permit the exportation of certain scrap metal guidelines unless, amongst others, it has first been offered for sale for domestic beneficiation to the domestic consuming industry at a price discount to an international benchmark price (“the discount”).

1.5 The administrative aspects of the PPS are set out in the Guidelines (“the Guidelines”), initially published in Notice No. R.1012, in Government Gazette No. 41940 of 28 September 2018. The Guidelines, including in relation to the level (percentage) of the discount on ferrous scrap, have been amended from time to time to address issues arising from the administration of the PPS and domestic considerations.

LINK TO FULL NOTICE

International Trade Administration Act: Exportation of ferrous and non-ferrous waste and scrap metal

G 52506 RG 6122 GoN

14 April 2025

52506reg6122.pdf

ACTION

1.     Offer Scrap Metal for Domestic Sale:

·       Before exporting, organizations must offer the scrap metal for sale to the domestic consuming industry at a discounted price compared to an international benchmark

2.     Obtain Export Permits:

·       Organizations must apply for and obtain export permits from the International Trade Administration Commission of South Africa (ITAC) for the scrap metal they intend to export

3.     Adhere to Price Preference System (PPS):

·       Comply with the guidelines set out in the PPS, which include offering scrap metal at a price discount and following the administrative procedures outlined in the guidelines

4.     Documentation and Reporting:

·       Maintain accurate records and documentation of the offers made to the domestic industry and the transactions completed. This may include reporting to ITAC as required

5.     Compliance with Regulations:

·       Ensure all activities related to the exportation of scrap metal comply with the regulations and directives issued by the Department of Trade, Industry and Competition

LABOUR

LAW AND TYPE OF NOTICE

Employment Equity Act:

Repeal of Employment Equity Regulations, 2014

G 52515 GoN 6125

14 April 2025

APPLIES TO: 

The Employment Equity Regulations, 2025 will affect a wide range of organizations in South Africa, particularly those classified as designated employers. Here are the key points:

DESIGNATED EMPLOYERS

1.     Large Employers:

·       Organizations with 50 or more employees.

·       These employers must comply with the full provisions of the Employment Equity Act, including preparing and implementing Employment Equity Plans, reporting annually, and meeting sector-specific numerical targets

2.     Public Sector:

·       Government departments at national, provincial, and local levels.

·       State-owned enterprises.

·       Municipalities

3.     Organizations with Collective Agreements:

·       Employers who are designated by a collective agreement to comply with Chapter III of the Employment Equity Act, even if they have fewer than 50 employees

NON-DESIGNATED EMPLOYERS

1.     Small Employers:

·       Organizations with fewer than 50 employees are exempt from complying with Chapter III of the Employment Equity Act

·       However, they must still comply with Chapter II, which prohibits unfair discrimination and mandates equal pay for work of equal value

ECONOMIC SECTORS

The regulations set sector-specific numerical targets for designated groups across 18 economic sectors

These sectors include:

1.     Agriculture, Forestry, and Fishing

2.     Mining and Quarrying

3.     Manufacturing

4.     Electricity, Gas, Steam, and Air Conditioning Supply

5.     Construction

6.     Wholesale and Retail Trade

7.     Transportation and Storage

8.     Accommodation and Food Service Activities

9.     Information and Communication

10.   Financial and Insurance Activities

11.   Real Estate Activities

12.   Professional, Scientific, and Technical Activities

13.   Administrative and Support Service Activities

14.   Public Administration and Defence

15.   Education

16.   Human Health and Social Work Activities

17.   Arts, Entertainment, and Recreation

18.   Water Supply, Sewerage, Waste Management, and Remediation Activities

SUMMED UP

EMPLOYMENT EQUITY REGULATIONS, 2014

1.     Equal Pay for Work of Equal Value

·       Criteria: Prescribed criteria for assessing work of equal value.

·       Eliminating Unfair Discrimination: Employers must eliminate differences in terms and conditions of employment based on listed grounds.

·       Meaning of Work of Equal Value: Defined as work that is identical, substantially the same, or of the same value.

·       Methodology: Steps to establish whether work is of equal value and if differences constitute unfair discrimination.

·       Factors Justifying Differentiation: Seniority, qualifications, performance, etc.

2.     Duties of Designated Employers

·       Collecting Information and Conducting Analysis: Employers must collect information and conduct an analysis of their workforce.

·       Employment Equity Plan: Employers must prepare and implement an Employment Equity Plan.

·       Reporting: Annual reporting to the Director-General.

·       Informing Employees: Employers must inform employees about the Employment Equity Act.

3.     Enforcement Mechanisms

·       Income Differentials and Discrimination: Employers must report income differentials.

·       Requesting an Undertaking: Labour inspectors can request written undertakings from employers.

·       Compliance Orders: Labour inspectors can serve compliance orders.

·       Review by the Director-General: The Director-General can review compliance.

4.     General Administrative Matters

·       Repeal of Laws: Previous regulations are repealed.

·       Short Title: Employment Equity Regulations, 2014.

EMPLOYMENT EQUITY REGULATIONS, 2025

1.     Equal Pay for Work of Equal Value

·       Criteria: Similar criteria for assessing work of equal value.

·       Eliminating Unfair Discrimination: Employers must eliminate differences in terms and conditions of employment based on listed grounds.

·       Meaning of Work of Equal Value: Defined similarly as work that is identical, substantially the same, or of the same value.

·       Methodology: Steps to establish whether work is of equal value and if differences constitute unfair discrimination.

·       Factors Justifying Differentiation: Seniority, qualifications, performance, etc.

2.     Duties of Designated Employers

·       Collecting Information and Conducting Analysis: Employers must collect information and conduct an analysis of their workforce.

·       Employment Equity Plan: Employers must prepare and implement an Employment Equity Plan.

·       Reporting: Annual reporting to the Director-General.

·       Informing Employees: Employers must inform employees about the Employment Equity Act.

·       Income Differentials and Discrimination: Employers must report income differentials.

3.     Enforcement Mechanisms

·       Requesting an Undertaking: Labour inspectors can request written undertakings from employers.

·       Compliance Orders: Labour inspectors can serve compliance orders.

·       Review by the Director-General: The Director-General can review compliance.

·       Service of Compliance Orders: Detailed methods for serving compliance orders.

4.     General Administrative Matters

·       EE Compliance Certificate: Employers must request a compliance certificate.

·       Withdrawal of EE Compliance Certificate: Procedures for withdrawing compliance certificates.

·       Repeal of Laws: Previous regulations are repealed.

·       Short Title: Employment Equity Regulations, 2025.

KEY DIFFERENCES

1.     Sector-Specific Targets:

·       2025 Regulations introduce sector-specific numerical targets for designated groups across eighteen economic sectors

2.     Exemptions for Small Employers:

·       2025 Regulations exempt employers with fewer than fifty employees from complying with Chapter III of the Employment Equity Act

3.     Enhanced Compliance Mechanisms:

·       2025 Regulations include detailed procedures for requesting and withdrawing EE Compliance Certificates

4.     Updated Forms and Templates:

·       2025 Regulations provide updated forms and templates for reporting and compliance

5.     Focus on Inclusivity and Transformation:

·       2025 Regulations emphasize advancing transformation and inclusivity in the South African labour market

The Employment Equity Regulations, 2025 are effective from April 15, 2025

These regulations were published following the commencement of the Employment Equity Amendment Act, No. 4 of 2022, which came into effect on January 1, 2025

FULL TEXT

DETAILS

NO. 6125           15 April 2025

REPEAL OF EMPLOYMENT EQUITY REGULATIONS, 2014

I, Nomakhosazana Meth, Minister of Employment and Labour, in terms of Section 55(1) of the Employment Equity Act, 1998 (Act No. 55 of 1998 as amended), and on the advice of the Commission for Employment Equity, hereby repeal the Regulations made in terms of the Employment Equity Act, 55 of 1998, published under Government Notice No. 37873 of 1 August 2014. This Notice will be effective from the date of publication.

M         ZANA METH, MP MINISTER OF EMPLOYMENT AND LABOUR

DATE: 10 April 2025

DEPARTMENT OF EMPLOYMENT AND LABOUR

EMPLOYMENT EQUITY REGULATIONS, 2025

I, Nomakhosazana Meth, Minister of Employment and Labour, hereby under section 55(1) of the Employment Equity Act, 1998 (Act 55 of 1998 as amended), and on the advice of the Commission for Employment Equity, publish the Employment Equity Regulations in the Schedule, which regulations will be effective from the date of publication.

MS. NOMAKHOSAZANA METH, MP MINISTER OF EMPLOYMENT AND LABOUR

DATE: 10 April 2025

SCHEDULE

Arrangement of Regulations

1.         Definitions

WORK OF EQUAL VALUE

2.         Equal Pay for Work of Equal Value Criteria

3.         Eliminating unfair discrimination

4.         Meaning of work of equal value

5.         Methodology

6.         Assessing whether work is of equal value

7.         Factors justifying differentiation in terms and conditions of employment

DUTIES OF A DESIGNATED EMPLOYER

8.         Collecting information and conducting an analysis

9.         Duty to prepare and implement an Employment Equity Plan

10.        Duty to report

11.        Duty to inform

12.        Income differentials and discrimination

ENFORCEMENT MECHANISMS

13.        Requesting an undertaking

14.        Compliance order

14A       Service of compliance order

15.        Review by the Director-General (DG Review)

GENERAL ADMINISTRATIVE MATTERS

16.        EE Compliance Certificate in terms of section 53

17.        Withdrawal of the EE Compliance Certificate (EEA 16C)

18.        Repeal of laws

19.        Short Title

FORMS AND ANNEXURES

1.         EEA1:   Employee declaration in terms of Section 19(1) of the Act

2.         EEA2:   Report to the Director-General in terms of Section 21 of the Act

3.         EEA3:   Summary of the Act in terms of Section 25(1) of the Act

4.         EEA4:   Statement of income differentials in terms of Section 27 of the Act

5.         EEA5:   Request for an undertaking in terms of Section 36 of the Act

6.         EEA6:   Compliance order in terms of Section 37(1) of the Act

7.         EEA7:   DG Review Assessment Form in terms of Section 43 of the Act

8.         EEA8:   Demographic Data in terms of Section 42 of the Act

9.         EEA9:   Occupational Levels in terms of Section 21 of the Act

10.        EEA10:  Summary of the employment equity progress report in terms of Section 22 of the Act

11.        EEA11:  Request for employer’s employment equity report in terms of Section 21(6) of the Act

12.        EEA12:  Template for reporting on analysis conducted in terms of Section 19 of the Act

13.        EEA 13: Template for Employment Equity Plan in terms of Section 20 of the Act

14.        EEA 14: Director-General Notification in terms of Section 21(4A) of the Act

15.        EEA 15: Request for an EE Compliance Certificate

16.        EEA 16A:EE Compliance Certificate for designated employers

17.        EEA 16B:EE Compliance Certificate for non-designated employers

18.        EEA 16C:Intention to withdraw EE Compliance Certificate

19.        EEA 16D:Withdrawal of EE Compliance Certificate

20.        EEA 17: Economic Sectors and Sub-Sectors

1.         Definitions

In these Regulations, any word or expression to which a meaning has been assigned in the Act has the meaning so assigned and, unless the context indicates otherwise.

“Department” means the Department of Employment and Labour; “EAP” means Economically Active Population;

“EE Plan” means the Employment Equity Plan as contemplated in section 20 of the Act;

“Labour Relations Act” means the Labour Relations Act, 1995 (Act No. 66 of 1995), as amended;

“listed ground” means a ground listed in terms of section 6(1) of the Act;

“National Minimum Wage Commission” means the National Minimum Wage Commission as established in terms of the National Minimum Wage Act, 2018 (Act No. 9 of 2018), as amended;

“regional demographics” means the Provincial Economically Active Population; “temporary employees” means employees who are employed for less than three months; “the Act” means the Employment Equity Act, 1998 (Act No. 55 of 1998), as amended; and

“work of equal value” includes work that is the same, substantially the same or of the same value as other work, as contemplated in regulation 4 of these Regulations.

EQUAL PAY FOR WORK OF EQUAL VALUE

2.Equal Pay for Work of Equal Value Criteria

These Regulations are published to prescribe the criteria and methodology for assessing work of equal value contemplated in section 6(4) of the Act.

3.Eliminating unfair discrimination

(1)An employer must, in order to eliminate unfair discrimination, take steps to eliminate differences in terms and conditions of employment, including remuneration of employees who perform work of equal value if those differences are directly or indirectly based on a listed ground or any arbitrary ground that is prohibited by section 6(1) of the Act.

(2)Without limiting sub-regulation (1), an employer must ensure that employees are not paid different remuneration for work of equal value based on race, gender or disability.

4.Meaning of work of equal value

For the purposes of these Regulations, the work performed by an employee –

(1)is the same as the work of another employee of the same employer, if their work is identical or interchangeable;

(2)is substantially the same as the work of another employee employed by that employer, if the work performed by the employees is sufficiently similar that they can reasonably be considered to be performing the same job, even if their work is not identical or interchangeable;

(3)is of the same value as the work of another employee of the same employer in a different job, if their respective occupations are accorded the same value in accordance with regulations 5 to 7.

5.         Methodology

When, applying section 6(4) of the Act –

(1)it must first be established:

(a)whether the work concerned is of equal value in accordance with regulation 6; and

(b)whether there is a difference in terms and conditions of employment, including remuneration.

(2)it must then be established whether any difference in terms of sub-regulation (1)(b) constitutes unfair discrimination, applying the provisions of section 11 of the Act.

6.         Assessing whether work is of equal value

(1)In considering whether work is of equal value, the relevant jobs must be objectively assessed, taking into account the following criteria:

(a)the responsibility demanded of the work, including responsibility for people, finances and material;

(b)the skills and qualifications, including prior learning and experience, required to perform the work, whether formal or informal;

(c)the physical, mental and emotional effort required to perform the work; and

(d)to the extent that it is relevant, the conditions under which work is performed, including the physical environment, psychological conditions, time when and geographic location where the work is performed.

(2)In addition to the criteria specified in sub-regulation (1), any other factor indicating the value of the work may be taken into account in evaluating work, provided the employer shows that the factor is relevant to assessing the value of the work.

(3)The assessment undertaken in terms of sub-regulations (1) and (2) must be conducted in a manner that is free from bias on grounds of race, gender, disability or on any other ground contemplated in section 6(1) of the Act.

(4)Despite sub-regulations (1) and (2), an employer may justify the value assigned to an employee’s work by reference to the classification of a relevant job in terms of a sectoral determination made by the Minister of Employment and Labour in terms of section 55 of the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997) which applies to the employer.

7.Factors justifying differentiation in terms and conditions of employment

(1)If employees perform work that is of equal value, a difference in terms and conditions of employment, including remuneration, is not unfair discrimination if the difference is fair and rational and is based on any one or a combination of the following grounds:

(a)the individuals’ respective seniority or length of service;

(b)the individuals’ respective qualifications, ability, competence or potential above the minimum acceptable levels required for the performance of the job;

(c)the individuals’ respective performance, quantity or quality of work, provided that employees are equally subject to the employer’s performance evaluation system, that the performance evaluation system is consistently applied;

(d)where an employee is demoted as a result of organisational restructuring or for any other legitimate reason without a reduction in pay and fixing the employee’s salary at this level until the remuneration of employees in the same job category reaches this level;

(e)where an individual is employed temporarily in a position for purposes of gaining experience or training and as a result receives different remuneration or enjoys different terms and conditions of employment;

(f)the existence of a shortage of relevant skill, or the market value in a particular job classification; and

(g)any other relevant factor that is not unfairly discriminatory in terms of section 6(1) of the Act.

(2)A differentiation in terms and conditions of employment based on one or more grounds listed in sub-regulation (1) will be fair and rational if it is established, in accordance with section 11 of the Act, that –

(a)its application is not biased against an employee or group of employees based on race, gender or disability or any other ground listed in section 6(1) of the Act; and

(b)it is applied in a proportionate manner.

DUTIES OF A DESIGNATED EMPLOYER

8.Collecting information and conducting an analysis

(1)When a designated employer collects information contemplated in section 19 of the Act, the employer must request each employee in the workforce to complete a declaration using the EEA1 form.

(2)Where an employee refuses to complete the EEA1 form or provides inaccurate information, the employer may establish the designation of an employee by using reliable historical and existing data, and persons with disabilities have the right not to declare their disability.

(3)A designated employer must conduct an analysis as required by section 19 of the Act by reviewing its workforce profile and employment policies, practices, procedures and the working environment in order to identify employment barriers which adversely affect people from designated groups from being equitably represented across all occupational levels, and the outcome of the analysis must be reported using the EEA12 template in these regulations.

(4)A designated employer must refer to the relevant Codes of Good Practice issued in terms of section 54 of the Act as a guide when collecting information and conducting the analysis required by section 19 of the Act.

(5)When a designated employer conducts the analysis required by section 19 of the Act, the employer may refer to –

(a)EEA8, a guide on the applicable national and regional economically active population (EAP); and

(b)EEA9, which contains a description of occupational levels.

(6)A designated employer must record on the EEA12 template whether it is using the national or regional EAP as a basis for conducting its analysis in terms of section 19 of the Act.

9.Duty to prepare and implement an Employment Equity Plan (EE Plan)

(1)Designated employers must prepare and implement an EE Plan for the period from 1 September 2025 until 31 August 2030.

(2)Employers who become designated employers, after 1 April 2025, must prepare an EE Plan for the remainder of the period until 31 August 2030.

(3)A designated employer must refer to the relevant Codes of Good Practice issued in terms of section 54 of the Act when preparing an EE Plan contemplated in section 20 of the Act.

(4)The EE Plan must contain, at a minimum, all the elements contained in the EEA13 template of these regulations.

(5)When developing EE Plans and setting annual numerical targets in their workplaces in terms of Section 20(2) of the EEA, designated employers must take into account –

(a)their workforce profile,

(b)the relevant 5-year sectoral numerical targets; and

(c)the applicable EAP.

(6)In addition to the factors listed in sub-regulation (5), a designated employer may take into account any of the following to the extent that they are consistent with the purpose of the Act –

(a)the inherent requirements of a particular job;

(b)the pool of suitably qualified persons;

(c)the formal qualifications, prior learning, relevant experience or capacity to acquire, within a reasonable time, the ability to do the job, as contemplated in sections 20(3) to (5) of the Act;

(d)the rate of turnover and natural attrition within the workplace; and

(e)recruitment and promotional trends within a workplace.

(7)A designated employer must –

(a)comply with the numerical targets set in terms of section 15A(3) for the economic sector in which they operate;

(b)refer to the Ministerial notice issued in terms of section 15A and EEA17 to the regulations to determine the sector they operate in; and

(c)if it operates in more than one sector, apply the numerical targets for the sector in which the majority of their employees are engaged.

(8)The 5-year sectoral numerical targets set in terms of section 15A(2) of the Act are key milestones towards achieving the equitable representation of the different designated groups within the four upper occupational levels in an employer’s workforce in relation to the demographics of the applicable EAP, and for persons with disabilities.

(9)When determining their Annual EE targets towards achieving the 5-year sectoral numerical targets, a designated employer must set numerical targets for all designated groups in each of the four upper occupational levels in relation to the applicable sector targets and EAP, and for persons with disabilities.

(10)A designated employer must avoid perpetuating the over-representation of any group if their representation exceeds the applicable EAP in a particular occupational level.

(11)A designated employer that has exceeded the numerical target set for a particular designated group at an occupational level should continue to set targets that maintain compliance with the EAP.

(12)Designated employers must set numerical goals and annual EE targets at the semi-skilled and unskilled occupational levels in their EE Plans in terms of Section 20(2) of the EEA, taking into account the applicable EAP.

(13)Designated employers’ compliance will be assessed against their annual targets set towards meeting the relevant 5-year sectoral numerical targets.

(14)A designated employer will incur no penalty or any form of disadvantage if there are reasonable grounds to justify its failure to comply with any target, as contemplated by section 53(6)(b), read with section 42(4), of the Act.

(15)A designated employer must retain their EE Plan for a period of five years after the expiry of the EE Plan.

(16)A designated employer must refer to the EEA9 in the regulations for guidance on how to differentiate between the various occupational levels.

10.Duty to report

(1)A designated employer must submit a report to the Director-General in terms of section 21 of the Act annually–

(a)by hand delivery of a completed EEA2 form as specified in regulation 10(2) together with the EEA4 form in terms of regulation 12; or

(b)electronically by using the online reporting system available on the Department’s website: www.labour.gov.za.

(2)A designated employer that submits its report by hand must do so by delivering a completed EEA2 form and EEA4 form, which are signed by the Chief Executive Officer/ Accounting Officer of the employer–

(a)to the Head Office of the Department for assistance to immediately capture the report into the system and receive feedback; and

(b)in the period from 1 September until the first working day of October.

(3)A designated employer may submit a report electronically using the online reporting EE System from 1 September until 15 January of the following year.

(4)An employer that becomes a designated employer on or after the first working day of April is only required to submit its first report in the following reporting cycle.

(5)A designated employer will not be assessed for compliance with its annual targets in the first report submitted after becoming a designated employer.

(6)A designated employer may not be issued with a certificate in terms of section 53(2) of the Act unless it has submitted a compliant report in the preceding year.

(7)A designated employer that is a holding company controlling more than one registered entity may choose to submit a consolidated report.

(8)A designated employer that chooses to submit a consolidated report contemplated in sub- regulation 10(7) must–

(a)have a consolidated Employment Equity Plan which is supported by individual Employment Equity Plans for each of the registered entities included in the consolidated report; and

(b)adopt a method of reporting that remains consistent for the duration of the plan.

(9)The information contained in a report must be verified and authorised by-

(a)the chief executive officer; or

(b)in the case of an employer falling under the Public Finance Management Act, 1999 (Act No.1 of 1999) or the Municipal Finance Management Act, 2003 (Act No. 56 of 2003), the accounting officer.

(10)A designated employer must inform the Director-General in writing immediately of any changes to –

(a)their trade name; or

(b)details of their chief executive officer or accounting officer and the managers who have been assigned responsibility in terms of section 24 of the Act.

(11)A designated employer that is unable to report in terms of this regulation must notify the Director-General in writing by the last working day of August in the same year giving reasons and providing evidence for its inability to do so using the EEA14 form.

(12)The Department must provide an employer that has submitted a report with one of the following –

(a)a letter rejecting the report because it does not comply with the requirements of the Act and these regulations;

(b)a letter advising the employer that there are errors in the report and requesting the employer to rectify those errors within a specified period; or

(c)an electronic acknowledgement letter stating that the report is complete and has been submitted into the Department’s EE system.

(13)A designated employer that receives a letter advising that there are errors in the report in terms of sub-regulation (12)(b) must submit information correcting those errors within the period specified in the letter.

(14)A designated employer must retain a copy of the report for five years after it has been submitted to the Director-General in terms of section 21 of the Act.

(15)Public companies that are designated employers must publish a summary of their EEA report in terms of section 21 of the Act in their annual financial report in terms of section 22 of the Act, including the information specified in the EEA10 form.

(16)An EE report submitted in terms of section 21 of the Act is a public document and a copy may be requested by completing and submitting the EEA11 form online using the Department’s website: www.labour.gov.za.

(17)The relevant provisions of the Electronic Communications and Transactions Act No 25 of 2002 are applicable in respect of any issue concerning the electronic submission of a report or receipt of a document or e-mail.

11.Duty to inform

The notice contemplated in section 25(1) of the Act is contained as the Summary of the Act in Annexure EEA3 of these Regulations and must be displayed at the workplace.

12.Income differentials and discrimination

(1)A designated employer must submit an Income Differential Statement in terms of section 27 of the Act, using the EEA4 form, to the National Minimum Wage Commission by hand delivery or electronically as contemplated by regulation (10).

(2)An employer, who becomes designated on or after the first working day of April is only required to submit its Income Differential Statement in the following reporting cycle.

(3)A designated employer must retain a copy of the statement of income differentials contemplated in regulation 12(1) for a period of five years after it has been submitted.

(4)An EEA4 form submitted in terms of these Regulations is not a public document.

ENFORCEMENT MECHANISMS

13.Requesting a written undertaking

A labour inspector may request and obtain a written undertaking in terms of section 36 of the Act using the EEA5 form.

14.Compliance order

A labour inspector may serve a compliance order in terms of section 37 of the Act on a designated employer using the EEA6 form.

14A.Service of compliance order in terms of section 37

(1)A compliance order may be served on an employer in terms of section 37 of the Act by any of the following methods–

(a)handing a copy of the order to the employer or a representative of the employer;

(b)leaving a copy of the order at the employer’s premises or registered office; and

(c)e-mailing a copy of the order to the employer’s e-mail address.

(2)In the event of a dispute as to whether a compliance order has been served in terms of sub- regulation (1), service may be proved by–

(a)in the case of an order served by hand–

i.a copy of a receipt signed by, or on behalf of, the employer clearly indicating the name and designation of the recipient and the place, time and date of service; or

ii.a statement confirming service signed by the person who delivered a copy of the order to the other party or left it at any premises.

(b)in the case of an order left at the employer’s premises, a statement confirming service signed by the person who left it at the employer’s premises; and

(c)in the case of an order served by e-mail–

i.a copy of the sent e-mail indicating the successful dispatch to the employer of the email and any attachments concerned; and

ii.an affidavit of the person who effected service, providing proof of the correct e- mail address of the employer and confirmation that the e-mail and any attachments were dispatched to the employer.

(3)If proof of service in accordance with sub-regulation (2) is provided, it is presumed, until the contrary is proven, that the employer on whom it was served has knowledge of the contents of the compliance order.

(4)If proof that the document was posted by registered post to the employer in accordance with sub-regulation (2) is provided, it is presumed, until the contrary is proven, that the employer received the order seven days after the date of posting.

(5)The relevant provisions of the Electronic Communications and Transactions Act No. 25 of 2002 are applicable in respect of any issue concerning service by e-mail.

15.Review by the Director-General

A designated employer that has been identified for review by the Director-General in terms of section 43 of the Act must –

(a)complete fully and accurately the DG Review Assessment form (EEA7); and

(b)furnish the required records, documents and information within the period specified by the Director-General.

16.EE Compliance Certificate in terms of section 53

(1)An employer must request a certificate in terms of section 53 of the Act online by means of the Department’s website: www.labour.gov.za.

(2)A designated employer may request a certificate in terms of sub-regulation (1) after submitting its annual report in terms of section 21 of the Act.

(3)An employer, that is not a designated employer, requesting a certificate in terms of section 53 of the Act must specify that it complies with Chapter II of the Act and that it complies with the National Minimum Wage Act, 2018 using the EEA15 form.

(4)A designated employer must specify in its application on the EEA15 form any grounds that it seeks to rely upon to justify its failure to comply with –

(a)any requirement for the issuing of a certificate as contemplated by section 42(4) of the Act; or

(b)in the case of non-compliance with a sectoral target, any grounds contemplated by section 53(6)(b).

(5)Justifiable reasonable grounds for not complying with the targets are –

(a)insufficient recruitment opportunities;

(b)insufficient promotion opportunities;

(c)insufficient target individuals from designated groups with relevant formal qualifications, prior learning, relevant experience or capacity to acquire, within a reasonable time, the ability to do the job, as contemplated by sections 20(3) to (5) of the Act;

(d)the impact of a CCMA award or court order;

(e)a transfer of a business;

(f)mergers or acquisitions; and

(g)the impact of economic conditions on the business.

(6)An EE Compliance Certificate in terms of section 53 of the Act must be issued to–

(a)a designated employer in the form of EEA16A; or

(b)an employer, that is not a designated employer, in the form of EEA16B.

(7)A certificate issued in terms of section 53 of the Act is valid for twelve months from the date on which it is issued.

17.Withdrawal of the EE Compliance Certificate

(1)The following persons may issue a notice withdrawing a certificate issued in terms of section 53(2) of the Act –

(a)the Minister;

(b)a labour inspector appointed in terms of section 63 of the Basic Conditions of Employment Act; or

(c)an official of the Department who has been delegated or assigned this function in terms of section 56 of the Act,

(2)A person contemplated in sub-regulation (1) may withdraw a certificate issued in terms of section 53(2) if they are satisfied that –

(a)the certificate was issued as a result of any misrepresentation or the provision of any fraudulent or inaccurate information; or

(b)any condition necessary for issuing the certificate no longer exists.

(3)A certificate issued in terms of section 53(2) may not be withdrawn unless –

(a)the employer has been given 14 days to make representations upon being served with an EEA16C notice; and

(b)any representations by the employer have been considered.

(4)A notice of withdrawal must be issued on an EEA16D form.

GENERAL ADMINISTRATIVE MATTERS

18.Repeal of laws

The Employment Equity Regulations, 2014 as published in Government Notice No. 595 of 1 August 2014 are hereby repealed.

19.Short title

These Regulations are called the Employment Equity Regulations, 2025.

Please click on the link provided below to view the amended forms.

SUMMARY OF THE EMPLOYMENT EQUITY ACT, 55 OF 1998, AS AMENDED ISSUED IN TERMS OF SECTION 25(1)

1.Chapter I – Definition, purpose, interpretation and application

1.1Definitions: Section 1

(a)Designated groups mean black people (i.e., African, Coloured and Indian), women and persons with disabilities who are citizens of the Republic of South Africa by birth or descent, or became citizens of the Republic of South Africa by naturalization: before 27 April 1994 or after 26 April 1994 and who would have been entitled to acquire citizenship by naturalization prior to that date but were precluded by apartheid policies.

(b)Designated employer means an employer who employs 50 or more employees, municipalities and organs of State.

(c)Temporary employees are employees who are employed for less than three months.

(d)Sector means an industry or service or part of an industry or service

1.2Purpose of the Act: Section 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 to ensure their equitable representation in all occupational levels in the workforce.

1.3Application of the Act: Section 4

(a)Chapter II applies to all employers and employees.

(b)Chapter III applies to designated employers and people from designated groups.

(c)Members of the National Defence Force, National Intelligence Agency and South African Secret Services are excluded from this Act.

2.Chapter II – prohibition of unfair discrimination

(a)No person may unfairly discriminate, directly or indirectly, against an employee in any employment policy or practice, on one or more grounds including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.

(b)It is not unfair discrimination to promote affirmative action consistent with the Act or to prefer or exclude any person on the basis of an inherent job requirement.

(c)Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of, the grounds prohibiting unfair discrimination.

2.1.Equal pay for work of equal value: Section 6(4)

(a) Employers may not unfairly discriminate against employees by providing different terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more grounds listed in subsection 6(1) or on any other arbitrary ground.

2.2.Medical testing: Section 7

(a)Medical testing on an employee is prohibited, unless legislation permits or requires the testing; or it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job.

(b)Testing of an employee to determine that employee’s HIV status is prohibited unless such testing is determined to be justifiable by the Labour Court in terms of section 50(4) of this Act.

2.3.Psychological testing and other similar assessments: Section 8

Psychological testing and other similar assessments of an employee are prohibited unless the test or assessment being used has been scientifically shown to be valid and reliable, can be applied fairly to all employees and is not biased against any employee.

2.4.Disputes concerning Chapter 2: Section 10

(a)An employee, or applicant for employment, may refer a dispute concerning alleged unfair discrimination, medical or psychological testing to the CCMA for conciliation. This must be done within six months of the alleged discrimination or testing.

(b)If a dispute is not resolved after conciliation, any party to the dispute may refer it to the Labour Court for adjudication. The parties to a dispute may also agree to refer the dispute for arbitration.

(c)Unfair dismissal disputes in which unfair discrimination is alleged must be dealt with in terms of the Labour Relations Act. The dismissal must be referred to the CCMA within 30 days.

(d)An employee may refer a dispute to the CCMA for arbitration if: –

(i)the employee alleges sexual harassment; and

(ii)in any other case, where the employee earns less than the amount prescribed by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act; or

(e)Any party may refer the dispute to the CCMA for arbitration.

3.Chapter III – Affirmative Action

3.1Duties of a designated employer: Section 13

(a)A designated employer must implement affirmative action measures for designated groups to achieve employment equity.

(b)In order to implement affirmative action measures, a designated employer must-

(i)Consult with employees;

(ii)Conduct analysis;

(iii)Prepare an Employment Equity Plan; and

(iv)Report to the Director-General on progress made in the implementation of the plan.

3.2Affirmative action measures: Section 15

(a)Affirmative action measures are measures intended to ensure that suitably qualified employees from designated groups have equal employment opportunities and are equitably represented in all occupational levels of the workforce.

(b)Such measures must include:

(i)Identification and elimination of barriers with an adverse impact on designated groups;

(ii)Measures which promote diversity;

(iii)Making reasonable accommodation for people from designated groups;

(iv)Retention, development and training of designated groups (including skills development); and

(v)Preferential treatment and numerical goals to ensure equitable representation, which exclude quotas.

(c)Designated employers are not required to take any decision regarding an employment policy or practice that would establish an absolute barrier to prospective or continued employment or advancement of people not from designated groups.

(d)The Minister may publish a notice in the Gazette identifying national economic sectors for the purposes of this Act, having regard to any relevant code contained in the Standard Industrial Classification of all Economic Activities published by Statistics South Africa.

(e)The Minister may, after consulting 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 sector or part of a sector.

3.3Consultation: Section 16 and 17

(a)A designated employer must consult with its employees and their representatives on employment equity matters

(b)Designated employers should consult with employees both from designated and non-designated groups, and employees representing the interests of individuals from the various occupational levels.

Matters for consultation must include issues relating to the conducting of an analysis, preparing and implementing an Employment Equity Plan and preparation and submission of employment equity reports.

3.4Disclosure of information: Section 18

To ensure meaningful consultation, the employer must disclose relevant information to the consulting parties, subject to section 16 of the Labour Relations Act 66 of 1995.

3.5Analysis: Section 19

A designated employer must conduct an analysis of employment policies, practices, procedures and the work environment so as to identify employment barriers that adversely affect members of the designated groups. The analysis must also include the development of a workforce profile to determine to what extent designated groups are under- represented in the workplace.

3.6.Employment Equity Plan: Section 20

(a)A designated employer must prepare and implement an Employment Equity Plan, which must not be shorter than one year and not longer than five years, and should include a timetable for the achievement of goals and objectives for each year of the plan.

(b)The numerical goals set by an employer must comply with any sectoral target in terms of Section 15A that applies to that employer.

(c)The Director-General may apply to the Labour Court to impose a fine in terms of Schedule 1 for failure to prepare and implement an Employment Equity Plan.

3.7.Report: Section 21

(a)A designated employer must submit a report to the Director-General once every year on such date and in such manner as may be prescribed.

(b)The Labour Court may, on application by the Director-General, impose a fine contemplated in Schedule 1 of this Act for failure to report.

3.8.Designated employer must assign a manager: Section 24

A designated employer must assign one or more senior managers to ensure implementation and monitoring of the Employment Equity Plan and must make available necessary resources for this purpose.

3.9.Income Differentials: Section 27

(a)A statement of remuneration and benefits received in each occupational level of that employer’s workforce must be submitted by a designated employer to National Minimum Wage Commission.

(b)Where disproportionate income differentials or unfair discrimination in terms and conditions of employment as contemplated by section 6(4) of the Act are reflected in the statement contemplated in sub-regulation (a), a designated employer must take measures to progressively reduce such differentials subject to guidance as may be given by the Minister as contemplated in the regulations.

4.Chapter V – Monitoring, Enforcement and Legal Proceedings

4.1Monitoring: Section 34

Employees or trade union representatives can monitor the implementation of the Act and report any contraventions to the relevant bodies.

4.2Powers of the Labour Inspector: Section 35

Labour Inspectors are authorised to conduct an inspection as provided for in section 65 and 66 of the Basic Conditions of Employment Act, 1997.

4.3Undertaking to comply: Section 36

(a)If the inspector has reasonable grounds to believe a designated employer has failed to comply with its obligations in terms of the Act, the inspector may request and obtain a written undertaking to comply within a specified period.

(b)If an employer fails to comply with an undertaking, the Director-General may apply to the Labour Court to make such an undertaking an order of the Labour Court.

4.4        Compliance Order: Section 37

(a)A labour inspector may serve a compliance order to a designated employer if that employer has failed to comply with sections 16, 17, 19, 22, 24, 25, or 26 of this Act.

(b)If an employer fails to comply with an undertaking, the Director-General may apply to the Labour Court to make such an undertaking an order of the Labour Court.

4.5Review by Director-General: Section 43, 44 and 45

(a)The Director-General may conduct a review to determine whether an employer is complying with the Act.

(b)The outcome of the review may result in the Director-General approving the designated employers’ Employment Equity Plan: or may make recommendations to fulfil the requirements of the Act.

(c)If an employer fails to comply with a request made by the Director-General in terms of section 43(2) or a recommendation made by the Director-General in terms of section 44 (b), the Director-General may apply to the Labour Court for an order directing the employer to comply with the request or recommendation or to impose a fine in terms of Schedule 1 of this Act.

4.6Powers of the Labour Court: Section 50

The Labour Court has the powers to make any appropriate orders, award compensation or impose fines.

4.7Protection of employee Rights: Section 51

The Act protects employees who exercise their rights and obligations under the Act against victimisation, obstruction and undue influence.

5.Chapter VI – General Provisions

5.1State contracts: Section 53

(a)Designated employers who seek to do business with any organ of state, will have to apply for a certificate from the Minister confirming their compliance with chapter II and III of the Act and the payment of the minimum wage in terms of the National Minimum Wage Act of 2018.

(b)Non-designated employers who seek to do business with any organ of state, will have to apply for a certificate from the Minister confirming their compliance with chapter II of the Act and the payment of the minimum wage in terms of the National Minimum Wage Act of 2018

(c)Both designated and non- designated employers must confirm that the CCMA or a court has not issued an award against the employer in the previous 12 months for breaching the prohibition on unfair discrimination and for failing to pay the minimum wage.

5.2Liability of Employers: Section 60

Should employees contravene any provision of this Act while performing their duties; the employer will be liable, unless the employer can prove that it did everything in its power to prevent the undesired act.

LINK TO FULL NOTICE

Employment Equity Act: Repeal of Employment Equity Regulations, 2014

G 52515 GoN 6125

14 April 2025

52515gon6125.pdf

ACTION

1. Review and Update Employment Equity Plans

• Align with Sector Targets: Review and align your Employment Equity Plans with the five-year sector-specific numerical targets for designated groups across the relevant economic sectors
• Set Annual Objectives: Establish specific, measurable, attainable, relevant, and time-bound (SMART) objectives for each year of the plan
• Include Affirmative Action Measures: Identify barriers and propose affirmative action measures to address these barriers, including timeframes and responsible persons

2. Conduct Workforce Analysis

• Collect Information: Use the EEA1 form to collect information from employees regarding their status as part of designated groups
• Analyze Workforce Profile: Conduct a workforce profile analysis to determine the degree of under-representation of designated groups in various occupational levels
• Use Relevant EAP: Utilize the national or provincial Economically Active Population (EAP) data for analysis

3. Prepare and Submit Reports

• Annual Reporting: Submit annual reports (EEA2 and EEA4 forms) to the Department of Employment and Labour from September 1 to January 15 of the following year
• Income Differential Statement: Report income differentials using the EEA4 form to address pay disparities
• Compliance Certificate: Request an EE Compliance Certificate to conduct business with the state

4. Implement Monitoring and Evaluation Procedures

• Regular Monitoring: Establish procedures to regularly monitor and evaluate the implementation of the Employment Equity Plan
• Dispute Resolution: Develop internal procedures to resolve disputes about the interpretation or implementation of the plan

5. Engage in Consultation

• Consult with Employees: Engage in meaningful consultation with employees and their representatives on employment equity matters
• Form Consultative Bodies: Establish consultative bodies or forums for ongoing dialogue and feedback

6. Attend Workshops and Training

• Participate in Workshops: Attend workshops and training sessions organized by the Department of Employment and Labour and the CCMA to understand the implications of the new regulations and how to comply
• Utilize Online Facilities: Learn how to use the EE system online facilities to capture EE reports and request EE Compliance Certificates

7. Address Specific Compliance Requirements

• Sector-Specific Targets: Ensure compliance with sector-specific numerical targets for the four upper occupational levels (Top Management, Senior Management, Professionally Qualified, and Skilled Technical)
• Small Employers: Employers with fewer than 50 employees are exempt from Chapter III but must still comply with Chapter II regarding unfair discrimination

8. Prepare for Audits and Reviews

• Documentation: Maintain accurate and comprehensive documentation of all employment equity activities, including analysis reports, EE plans, and compliance certificates
• Respond to Compliance Orders: Be prepared to respond to compliance orders and requests for written undertakings from labour inspectors

9. Promote Inclusivity and Diversity

• Corporate Culture: Foster a corporate culture that promotes diversity and inclusivity
• Reasonable Accommodation: Ensure reasonable accommodation for employees with disabilities and other designated groups

LAW AND TYPE OF NOTICE

Employment Equity Act:

Determination of sectoral numerical targets

G 52514 GoN 6124

14 April 2025

APPLIES TO: 

Organizations that do any of the following activities:

• Accommodation and Food Service Activities
• Administrative and Support Activities
• Agriculture, Forestry & Fishing
• Arts, Entertainment and Recreation
• Construction
• Education
• Electricity, Gas, Steam and Air Conditioning Supply
• Financial and Insurance Activities
• Human Health and Social Work Activities
• Information and Communication
• Manufacturing
• Mining and Quarrying
• Professional, Scientific and Technical Activities
• Public Administration and Defence; Compulsory Social Security
• Real Estate Activities
• Transportation and Storage
• Water Supply, Sewerage, Waste Management and Remediation Activities
• Wholesale and Retail Trade; Repair of Motor Vehicles and Motorcycles

SUMMED UP

Identification of Economic Sectors

The notice identifies various national economic sectors for the purposes of the Employment Equity Act. These sectors include:

• Accommodation and Food Service Activities
• Administrative and Support Activities
• Agriculture, Forestry & Fishing
• Arts, Entertainment and Recreation
• Construction
• Education
• Electricity, Gas, Steam and Air Conditioning Supply
• Financial and Insurance Activities
• Human Health and Social Work Activities
• Information and Communication
• Manufacturing
• Mining and Quarrying
• Professional, Scientific and Technical Activities
• Public Administration and Defence; Compulsory Social Security

• Real Estate Activities
• Transportation and Storage
• Water Supply, Sewerage, Waste Management and Remediation Activities
• Wholesale and Retail Trade; Repair of Motor Vehicles and Motorcycles

Sectoral Numerical Targets

The document sets out 5-year sectoral numerical targets for the equitable representation of suitably qualified people from designated groups at all occupational levels. These targets are specified for different population groups and genders across various sectors, including top management, senior management, professionally qualified & middle management, skilled technical levels, and employees with disabilities.

Implementation of Affirmative Action Measures

The notice clarifies the implementation of affirmative action measures:

• The sectoral numerical targets exclude white males with no disabilities and foreign nationals.
• Designated employers must take these targets into account when applying affirmative action measures.
• Employers will not incur penalties if they can show reasonable grounds for not complying with the targets.

Detailed Numerical Targets

The document provides detailed numerical targets for each sector, broken down by gender and designated groups. For example:

• Top Management in Accommodation and Food Service Activities: 18.6% male, 38.1% female, totaling 56.7% designated groups.
• Senior Management in Construction: 38.3% male, 27.8% female, totaling 66.1% designated groups.
• Professionally Qualified & Middle Management in Financial and Insurance Activities: 40.7% male, 46.1% female, totaling 86.8% designated groups.
• Skilled Technical in Manufacturing: 49.8% male, 46.1% female, totaling 95.9% designated groups.
• Disability Targets: 3% across all sectors.

FULL TEXT

DETAILS

DEPARTMENT OF EMPLOYMENT AND LABOUR

NO. 6124 15 April 2025

DEPARTMENT OF EMPLOYMENT AND LABOUR

EMPLOYMENT EQUITY ACT, 1998 (ACT 55 OF 1998 AS AMENDED) DETERMINATION OF SECTORAL NUMERICAL TARGETS

I, Nomakhosazana Meth, Minister of Employment and Labour in terms of 15A (1) and (2) of the Employment Equity Act, 1998 (Act No. 55 of 1998 as amended), after consulting the relevant sectors and with the advice of the Commission for Employment Equity, hereby publish this notice identifying national economic sectors and determining the sectoral numerical targets effective from the date of publication.

————————————–

MS NOMAKHOSAZANA METH, MP

MINISTER: DEPARTMENT OF EMPLOYMENT AND LABOUR

DATE: __________________

1. Identification of Economic Sectors

In terms of section 15A (1) of the Employment Equity Act, 1998 (Act No. 5 of 1998, as amended) (“the Act”), and having regard to the codes contained in the Standard Industrial Classification of all Economic Activities published by Statistic South Africa, the national economic sectors listed below are identified for the purposes of the Act:

1.1. Accommodation and Food Service Activities

1.2. Administrative and Support Activities

1.3. Agriculture, Forestry & Fishing

1.4. Arts, Entertainment and Recreation

1.5. Construction

1.6. Education

1.7. Electricity, Gas, Steam and Air Conditioning Supply

1.8. Financial and Insurance Activities

1.9. Human Health and Social Work Activities

1.10. Information and Communication

1.11. Manufacturing

1.12. Mining and Quarrying

1.13. Professional, Scientific and Technical Activities

1.14. Public Administration and Defence; Compulsory Social Security

1.15. Real Estate Activities

1.16. Transportation and Storage

1.17. Water Supply, Sewerage, Waste Management and Remediation Activities

1.18. Wholesale and Retail Trade; Repair of Motor Vehicles and Motorcycles

2. Sectoral numerical targets

2.1. In terms of section 15A(2) of the Act, for the purpose of ensuring the equitable representation of suitably qualified people from designated groups at all occupational levels in the workforce, the numerical targets for the economic sectors identified in terms of section 15A(1) are set out in the Table below.

2.2. The targets set out in this notice are operative from the date of publication.

3. Implementation of Affirmative Action measures

For purposes of clarity, it is stated that –

3.1. The 5-year sectoral numerical targets set out in this Notice are not intended to add up to 100%; as the sectoral numerical target excludes white males with no disabilities and foreign nationals as part of the workforce profile.

3.2. The manner in which designated employers must take the targets into account in applying affirmative action measures is specified in the Act, the General Administrative EE Regulations and Codes of Good Practice issued under the Act.

3.3. A designated employer will not incur penalties or any form of disadvantage if in the assessment of compliance of affirmative action in any workplace it shows that there are reasonable grounds for not complying with the EE targets.

LINK TO FULL NOTICE

Employment Equity Act: Determination of sectoral numerical targets

G 52514 GoN 6124

14 April 2025

52514gon6124.pdf

ACTION

1. Conduct an Employment Equity Analysis

• Workforce Profile: Analyze the current workforce to determine the representation of designated groups (Black people, women, and people with disabilities) at all occupational levels
• Identify Barriers: Identify any barriers to employment equity in policies, practices, and procedures

2. Develop an Employment Equity Plan

• Consultation: Consult with employees and relevant stakeholders to develop the plan
• Set Objectives: Establish clear objectives, measures, timetables, and strategies to achieve equitable representation
• Numerical Targets: Set sectoral numerical targets for different population groups and genders

3. Implement Affirmative Action Measures

• Recruitment: Implement recruitment policies that promote the hiring of designated groups
• Training and Development: Provide training and development opportunities to enhance the skills of designated groups
• Promotion: Ensure fair promotion practices that support the advancement of designated groups

4. Appoint a Senior Manager

• Responsibility: Appoint a senior manager to oversee the implementation and monitoring of the employment equity plan

5. Report to the Department of Employment and Labour

• Annual Reports: Submit annual employment equity reports detailing progress towards achieving the targets
• Record Keeping: Maintain records of compliance with the Act for at least five years

6. Display Provisions of the Act

• Workplace Display: Display a summary of the Act’s provisions in the workplace to ensure all employees are aware of their rights and the organization’s obligations

7. Monitor and Review

• Continuous Monitoring: Regularly monitor the implementation of the employment equity plan and make adjustments as necessary
• Review: Periodically review the plan to ensure it remains effective and aligned with the Act’s objectives

8. Compliance and Penalties

• Reasonable Grounds: Ensure there are reasonable grounds for any non-compliance to avoid penalties
• Sanctions: Be aware of potential sanctions for non-compliance, including fines and other penalties

MEDICAL

LAW AND TYPE OF NOTICE

Medical Schemes Act :

Council for Medical Schemes (English/Afrikaans)

G 52495 GeN 3128

11 April 2025

APPLIES TO: 

HEALTHCARE SECTOR

FULL TEXT

DETAILS

NOTICE OF 2025

COUNCIL FOR MEDICAL SCHEMES

The Registrar of Medical Schemes hereby notifies, in accordance with section 25 of the Medical Schemes Act,

1998, (Act 131 of 1998), that the undermentioned medical schemes have been registered as indicated.

This list replaces the list published in Government Gazette No. 46032 dated 15 March 2024 and contains 71

Medical Schemes.

Please click on the link provided below to view the full list of medical aids.

LINK TO FULL NOTICE

Medical Schemes Act : Council for Medical Schemes (English/Afrikaans)

G 52495 GeN 3128

11 April 2025

52495gen3128.pdf

PETROLEUM

LAW AND TYPE OF NOTICE

Upstream Petroleum Resources Development Act:

Draft regulations: Representations invited

G 52507 GoN 6123

– Comment by 14 May 2025

14 April 2025

APPLIES TO: 

1.     Mining Companies:

·       Companies involved in the extraction of minerals and other natural resources will need to comply with updated mining rights and regulations.

·       They will also have to adhere to new environmental protection standards and reporting requirements.

2.     Energy Companies:

·       Organizations involved in the production and distribution of energy, especially those focusing on renewable energy sources, will be affected by the changes in energy policies.

·       Companies relying on fossil fuels may face stricter regulations and incentives to transition to cleaner energy sources.

3.     Environmental Organizations:

·       Nonprofits and advocacy groups focused on environmental protection will be involved in monitoring compliance with the new regulations.

·       These organizations may also participate in public consultations and provide feedback on the implementation of the amendments.

4.     Public and Private Sector Stakeholders:

·       Businesses and individuals involved in public tenders and government contracts related to mining and energy projects will need to align with the new guidelines.

·       Increased public participation and transparency measures will affect how these stakeholders engage with government processes.

5.     Regulatory Bodies:

·       Government agencies responsible for overseeing mining and energy sectors will need to update their procedures and enforcement mechanisms to align with the new amendments.

·       These bodies will also play a key role in ensuring compliance and facilitating public consultations.

SUMMED UP

Amendments to:

1.     Mining Rights and Regulations:

·       Updates to existing mining rights and regulations to ensure sustainable and responsible mining practices.

·       Introduction of new guidelines for the issuance and renewal of mining licenses.

2.     Energy Policies:

·       Amendments to energy policies aimed at promoting renewable energy sources and reducing reliance on fossil fuels.

·       Implementation of measures to improve energy efficiency and conservation.

3.     Environmental Protection:

·       Strengthening regulations to protect the environment from the impacts of mining and energy production.

·       Enhanced monitoring and reporting requirements for environmental compliance.

4.     Public Consultation and Participation:

·       Provisions for increased public consultation and participation in decision-making processes related to mining and energy projects.

·       Mechanisms to ensure transparency and accountability in the implementation of these policies.

FULL TEXT

DETAILS

Please click on the link provided below to view more details on this amendment.

LINK TO FULL NOTICE

Upstream Petroleum Resources Development Act: Draft regulations: Representations invited

G 52507 GoN 6123

– Comment by 14 May 2025

14 April 2025

52507gon6123.pdf

ACTION

Ensure that you submit your comments timeously.

AI ARTICLES

EUROPE

Model Contractual Clauses for AI Procurement in the EU: Key Takeaways for AI Companies

The European Commission has published Model Contractual Clauses for public procurement of AI systems, encompassing the EU AI Act and its risk classifications. This set of standard clauses is useful for customers procuring AI systems. The first caters for high-risk AI solutions and the second caters to all other risk classifications. The commentary explains the rationale behind different clauses and highlights where adjustments that circumstance may require.

What should these clauses address

Model contractual clauses for public procurement of AI systems should address key aspects like risk management, data governance, transparency, and ethical considerations. These clauses should be tailored to specific AI types and should also consider legal and ethical implications.

The European Commission (EC) has released an updated version of the Model Contractual Clauses for AI Procurement (MCC-AI), providing further guidance for public-sector buyers navigating AI procurement under the European Union Artificial Intelligence Act (EU AI Act). However, these clauses also serve as a practical tool to help any private organisation meet their legal obligations when providing or procuring AI systems, particularly high-risk AI solutions.

Background

The first version of the MCC-AI was published in September 2023 in anticipation of the EU AI Act, offering a structured approach to AI procurement. With the EU AI Act officially enacted on 13 June 2024, the EC has now refined these model clauses to ensure greater alignment with regulatory requirements. The new publication includes:

• A full version for high-risk AI systems.
• A light version for non-high-risk AI systems.
• A commentary explaining how to adapt and implement the clauses.

Why should companies get acquainted with the MCC-AI?

The MCC-AI provides a valuable framework for companies procuring or providing AI services by establishing a common, minimum standard of obligations. These clauses help ensure that both parties align on key compliance aspects – such as transparency, risk management and accountability – in line with the EU AI Act.

Organisations incorporating MCC-AI clauses tailored to their needs, contracts and businesses can streamline negotiations, reduce legal uncertainties and demonstrate regulatory readiness.

This is particularly beneficial in an evolving legal landscape where AI governance requirements are still developing, as it helps companies proactively address potential risks and responsibilities.

Who has issued the MCC-AI?

The MCC-AI have been issued by the Public Buyers Community Platform, designed to foster collaboration in public procurement across the EU. It serves as a dedicated space where European public procurers and the EC can connect, share insights and drive innovation in public purchasing. The clauses are to be considered as a working document in progress and do not reflect an official position of the EC.

Who should use the MCC-AI?

The MCC-AI are designed for public-sector organisations procuring AI solutions, but they can be selectively adapted by private entities on a clause-by-clause basis.

• The full version applies to high-risk AI systems as defined in Chapter III of the EU AI Act – AI systems that pose significant risks to health, safety or fundamental rights.
• The light version is tailored for non-high-risk AI systems, but still addresses key procurement considerations, such as transparency, risk management and data governance.

Even in cases where the AI system poses no clear risks, the MCC-AI commentary suggests that contracting authorities include contractual safeguards around:

• Risk management frameworks
• Data governance and usage rights
• Technical documentation and audit mechanisms
• AI registers for accountability

How should the MCC-AI be executed?

The clauses are designed to be annexed to procurement contracts rather than functioning as stand-alone agreements. The MCC-AI includes only provisions specific to AI systems and issues covered by the EU AI Act. It does not address obligations or requirements arising from other applicable legislation. For instance, it does not cover intellectual property, acceptance, payment, delivery deadlines, applicable law or liability.

What do the MCC-AI cover?

The MCC-AI are structured around key legal and operational obligations, including:

• AI system requirements: Ensuring compliance with fundamental legal and ethical standards.
• Supplier obligations: Defining transparency, risk management and compliance expectations.
• Data governance: Establishing rights over data sets used in AI development.
• Audit and accountability: Setting up mechanisms for AI system monitoring.
• Costs and liabilities: Clarifying financial responsibilities for implementation and compliance.

Additionally, the annexes provide templates for describing AI system use cases, defining data governance frameworks and documenting compliance measures.

What are the differences between the European Commission standard contractual clauses and the MCC-AI?

The EU standard contractual clauses (SCCs) are legally binding contract templates issued by the EC to ensure that personal data transferred outside the European Economic Area (EEA) complies with the General Data Protection Regulation (GDPR). They impose specific data protection obligations on the parties involved.

The table below outlines the key differences between model contractual clauses (MCCs) and SCCs for data transfers. Although they serve different purposes, they may be included in the same agreement:

Key takeaways

For organisations providing AI systems, tailoring the MCC-AI to their business enhances credibility and trust with customers by showing a commitment to responsible AI practices.

For buyers, these clauses offer a baseline level of protection, ensuring that the procured AI solutions meet essential ethical and legal standards. Additionally, since the MCC-AI can be annexed to existing agreements, they provide flexibility while maintaining consistency across contracts. This not only facilitates smoother transactions but also minimizes disputes, as both parties operate under a shared understanding of AI-related obligations from the outset.

Patrick Van Eecke, Partner, Brussels

Enrique Capdevila, Special Counsel, Brussels

KEY AREAS TO COVER IN AI CONTRACTUAL CLAUSES:

Risk Management:

Implement a proactive risk management system that encompasses the entire AI system lifecycle.

Data and Data Governance:

Ensure data quality, governance, and mitigation of potential biases.

Technical Documentation and Instructions:

Provide clear and comprehensive documentation for assessing AI system compliance and proper usage.

Transparency and Human Oversight:

Ensure transparency in AI operations and maintain human oversight, especially for high-risk applications.

Ethical Considerations:

Address ethical concerns related to algorithmic bias, transparency, accountability, and data privacy.

Cybersecurity:

Implement measures to prevent and mitigate cybersecurity risks associated with AI systems.

Conformity Assessments and CE Markings:

Utilize conformity assessments and CE markings to ensure compliance with relevant safety and performance standards.

Data Ownership and Usage:

Define clear data ownership and usage rights, including potential for data monetization and data security.

Intellectual Property:

Address IP ownership of the AI system and ensure that the provider has the necessary rights.

Liability and Indemnity:

Establish clear liability and indemnity clauses to address potential issues arising from the AI system’s performance.

Accountability and Oversight:

Define explicit accountability measures for the AI’s performance and potential societal impacts.

Monitoring and Evaluation:

Implement mechanisms for continuous monitoring and evaluation of the AI system’s performance and ethical implications.

Examples of Model Clauses:

Risk Management Clause:

“The Supplier shall implement a risk management system that assesses, mitigates, and manages risks associated with the AI system throughout its lifecycle, including but not limited to data bias, cybersecurity, and ethical implications.”

Data Governance Clause:

“The Supplier shall ensure the quality and accuracy of all data used in the AI system, and shall implement data governance policies to prevent bias and ensure data privacy compliance.”

Transparency Clause:

“The Supplier shall provide clear and understandable documentation of the AI system’s functionality and decision-making processes, enabling transparency and human oversight.”

Ethical Clause:

“The Supplier shall ensure that the AI system is developed and deployed in a manner that is ethical, fair, and responsible, and shall comply with all applicable laws and regulations.”

Liability Clause:

“The Supplier shall be liable for any damages or losses caused by the AI system’s errors, defects, or failures, except as otherwise provided herein.”

SPAIN

Spain to impose massive fines for not labelling AI-generated content

Spain’s government approved a bill on Tuesday imposing massive fines on companies that use content generated by artificial intelligence (AI) without properly labelling it as such, in a bid to curb the use of so-called “deepfakes”.

The bill adopts guidelines from the European Union’s landmark AI Act imposing strict transparency obligations on AI systems deemed to be high-risk, Digital Transformation Minister Oscar Lopez told reporters.

“AI is a very powerful tool that can be used to improve our lives … or to spread misinformation and attack democracy,” he said.

Spain is among the first EU countries to implement the bloc’s rules, considered more comprehensive than the United States’ system that largely relies on voluntary compliance and a patchwork of state regulations.

Lopez added that everyone was susceptible to “deepfake” attacks – a term for videos, photographs or audios that have been edited or generated through AI algorithms but are presented as real.

The Spanish bill, which needs to be approved by the lower house, classifies non-compliance with proper labelling of AI-generated content as a “serious offence” that can lead to fines of up to 35 million euros ($38.2 million) or 7% of their global annual turnover.

Ensuring AI systems do not harm society has been a priority for regulators since OpenAI unveiled ChatGPT in late 2022, which wowed users by engaging them in human-like conversation and performing other tasks.

The bill also bans other practices, such as the use of subliminal techniques – sounds and images that are imperceptible – to manipulate vulnerable groups. Lopez cited chatbots inciting people with addictions to gamble or toys encouraging children to perform dangerous challenges as examples.

It would also prevent organisations from classifying people through their biometric data using AI, rating them based on their behaviour or personal traits to grant them access to benefits or assess their risk of committing a crime.

However, authorities would still be allowed to use real-time biometric surveillance in public spaces for national security reasons.

Enforcement of the new rules will be the remit of the newly-created AI supervisory agency AESIA, except in specific cases involving data privacy, crime, elections, credit ratings, insurance or capital market systems, which will be overseen by their corresponding watchdogs.

By Reuters

KEY ASPECTS OF THE SPANISH AI LAW:

EU AI Act Alignment:

Spain’s law is designed to implement the principles and requirements outlined in the EU’s AI Act, ensuring a consistent regulatory approach across the bloc.

Strict Labeling Requirements:

Companies are required to clearly label AI-generated content, particularly to combat the spread of deepfakes.

Prohibition of Harmful Practices:

The law bans practices like using AI to manipulate vulnerable groups through subliminal messaging or biometric profiling for discriminatory purposes.

Enforcement and Penalties:

A new AI supervisory agency, AESIA, will enforce the law, imposing fines on companies for non-compliance, which can reach up to €35 million or 7% of a company’s global turnover.

Focus on Innovation and Ethical Development:

The legislation also aims to promote innovation in AI and quantum technology while ensuring their ethical and responsible development.

Specific AI applications:

The law will allow for the use of real-time biometric surveillance in public spaces for national security purposes, while also regulating AI-driven facial recognition in other contexts.

Þ     Bill sets fines of up to $38 million or 7% of turnover on companies

Þ     Aligned with EU’s AI Act, it targets transparency and bans harmful practices

Þ     New AI supervisory agency AESIA to enforce most rules

Some commentary

Spain is one of the first EU countries out of the blocks publishing their AI Act implementation legislation. The Spanish approach creates a centralised coordination system with specialised oversight mechanisms and introduces several innovative protections beyond EU requirements.

The Spanish legislation establishes the Spanish Agency for the Supervision of Artificial Intelligence (AESIA) as a central coordinating body that will serve as the Single Point of Contact with the European Commission and chair a Joint Committee for Coordination. Alongside this centralised coordination, Spain has designated specialised sectoral authorities including the Spanish Data Protection Agency and the Bank of Spain to regulate AI systems in their respective domains.

This approach bears similarities to Ireland’s recently announced AI legislative strategy. While initially characterised as purely distributed, Ireland will in fact be establishing a “single super regulator” to coordinate all competent authorities. Like Spain, Ireland has designated existing sectoral regulators including the Central Bank of Ireland, the Data Protection Commission, and various other authorities to oversee AI systems in their areas of expertise.

Both countries seem to be implementing a two-tier system: a central coordinating body paired with sectoral regulators bringing domain-specific knowledge. There are notable parallels in the designated authorities, with financial regulators (Bank of Spain and Central Bank of Ireland) playing similar roles in their respective frameworks.
Where Spain’s approach does introduce distinctive elements is in its judicial oversight provisions for biometric systems.

Spain has mandated court authorisation for real-time biometric identification in public spaces and pioneered a “right to disconnect” harmful AI systems. The Spanish legislation also establishes a detailed sanctioning regime with graduated penalties and creates anonymous reporting channels for potential violations.

Spain has set specific dates for different aspects of regulation to take effect, beginning with prohibited systems in August 2025, followed by high-risk AI system oversight in 2026 and 2027.

These hybrid models reflect a pragmatic approach to AI governance. Both countries recognise the need for centralised coordination while leveraging the established expertise of sectoral regulators.

Rather than representing dramatically divergent paths, Spain and Ireland’s implementation strategies demonstrate a convergence around a balanced regulatory model. Both countries are seeking to establish effective oversight while minimising disruption to innovation. As AI technologies continue evolving rapidly, these similar yet nuanced approaches will offer valuable insights into effective models for implementing the EU’s pioneering AI regulation framework.

AFRICA

Africa Declaration on Artificial Intelligence

The inaugural Global AI Summit on Africa summitted with the announcement of the Africa Declaration on Artificial Intelligence, a pivotal turning point for Africa AI journey.

The declaration seeks:

1.     To leverage the potential of AI to drive innovation and competitiveness to advance Africa’s economies, industries, and societies.

2.     To position Africa as a global leader in ethical, trustworthy, and inclusive AI adoption.

3.     To foster the sustainable and responsible design, development, deployment, use, and governance of AI technologies in Africa.

The Africa Declaration on Artificial Intelligence

1. Preamble

WHEREAS leaders from Africa have gathered in Kigali, Rwanda, on 4th April 2025.

RECOGNIZING the transformative potential of Artificial Intelligence (AI) as outlined, and in alignment with the African Union Continental Strategy on AI, Smart Africa AI for Africa Blueprint, AU Data Policy Framework, AU Convention on Cybersecurity and Personal Data Protection, and the United Nations Global Digital Compact.

HAVING REGARD to the foundational outcomes established at the AI Summits convened in Bletchley Park, Seoul, and Paris.

ACKNOWLEDGING the unique opportunities, risks, and challenges that AI presents for our continent and the exponential pace of development and adoption.

REAFFIRMING our commitment to the African Union’s Agenda 2063 and the United Nations Sustainable Development Goals.

NOW, THEREFORE, we hereby present the following Declaration:

2. Guiding Principles and Objectives

2.1. Guiding Principles

• Sovereignty, inclusivity, and diversity in African AI design and deployment should benefit all African communities and reflect Africa’s strategic priorities, shared values, and diverse cultural contexts.
• Safeguards must be implemented to prevent harm and protect privacy, ethics, transparency, and explainability while prioritizing human dignity, rights, freedoms, and environmental sustainability.
• Regional, global, and public-private collaboration are essential to prioritize and invest in domestic capabilities and infrastructure, ensuring the long-term sustainability and inclusive growth of AI technologies in Africa.

2.2. Objectives

• To leverage the potential of AI to drive innovation and competitiveness to advance Africa’s economies, industries, societies.
• To position Africa as a global leader in ethical, trustworthy, and inclusive AI adoption.
• To foster the sustainable and responsible design, development, deployment, use, and governance of AI technologies in Africa.

3. Key Commitments

3.1. Talent

We shall develop a pipeline of AI practitioners who can meet the needs of the continent by establishing:

• Continent-wide AI education initiatives with curriculum development for youth at all levels.
• Adapted higher learning institution curricula that provide globally competitive AI skills.
• Increased AI research capacity in higher learning institutions by strengthening PhD programs in Africa and scaling research capacity through strategic international partnerships.
• Programs that will inform and empower citizens to be aware of the benefits and risks of AI through AI awareness and AI literacy training.

We endorse the creation of an African AI Scientific Panel, which shall consist of AI experts from Africa and the diaspora, to advocate for contextually relevant, evidence-based research on the risks, opportunities, and socio-economic impact of AI in Africa, providing a knowledge base for policymakers, researchers, and practitioners.

3.2. Data

• We shall establish a framework for African open data sets and open AI models, facilitating the collection, digitization, and interoperability of key datasets in critical sectors, such as healthcare, agriculture, education, and climate resilience and adaptation.
• In compliance with the AU Data Policy Framework, national data protection laws, and global best practices, we shall develop robust data governance mechanisms, ensuring security and privacy through standardized data formats, metadata, exchange protocols, and encryption standards.
• To safeguard African data, we shall incorporate data practices and systems that promote diversity, inclusion, consumer protection, and intellectual property rights that lead to equitable benefits and just outcomes for all.

3.3. Compute Infrastructure

• We shall ensure the deployment of distributed sovereign compute infrastructure supporting all regions of the continent.
• We shall ensure that ecosystem enablers, including academic institutions, research centers, and startups, will have access to affordable high-performance computing (HPC) resources.
• We shall establish regional data centers with HPC connected through a continental high-speed network and build robust cybersecurity measures to safeguard data integrity and resilience, optimizing compute resources with minimal carbon footprint.

3.4. Market

• We shall establish regional AI incubation and scaling hubs that support African-led AI innovation with commercial potential, working with the funding ecosystem to facilitate access to capital.
• We shall adopt an “Africa-first” approach to AI procurement and leverage African Continental Free Trade Area (AfCFTA) to facilitate cross-border scaling of projects, products, and services. This effort will include an African AI innovation sandbox, an AfCTA regulatory sandbox, and AI research centers.

3.5. Investment

• A $60 billion Africa AI Fund will be established, leveraging public, private, and philanthropic capital, to create a safe, inclusive, and competitive African AI economy through foundational and catalytic investment.
• The Fund shall invest in developing and expanding AI infrastructure, scaling African AI enterprises, building a robust pipeline of AI practitioners, and strengthening domestic AI research capabilities, while upholding principles of equity and inclusion.

3.6. Governance

• We shall support adopting innovative and responsible national AI policies and governance frameworks aligned with the African Union AI Continental Strategy.
• To streamline policy and regulatory approaches in Africa, we support establishing a continent-wide knowledge-sharing platform to inform best practices in AI governance, including policy toolkits and AI regulatory sandboxes.
• To enable harmonization with national frameworks, we will promote intergovernmental and regional cooperation, including robust frameworks for cross-border data flows.

3.7. Institutional Cooperation

• We endorse the establishment of the Africa AI Council, under the leadership of the Smart Africa Steering Committee, which is co-chaired by the African Union Commission and the International Telecommunications Union, to ensure high-level engagement and strategic alignment with continental and global digital transformation efforts.
• We recognize the strategic role the Council will play in shaping Africa’s position within the global AI economy by leveraging experts from government, private sector, civil society, and academia.

IN WITNESS WHEREOF, we, the undersigned ministers and officials, duly authorized to that effect, have signed this Declaration.

DONE at Kigali, Rwanda, this fourth day of April two thousand and twenty-five.

Signatories:

Download the full declaration here

Source: C4IR Rwanda – Global AI Summit on Africa 2025

See the full document – https://aiexpoafrica.com/africa-declaration-on-artificial-intelligence/

COMPETITION ARTICLES

SOUTH AFRICA

Final Guideline On Internal Restructuring

On 4 April 2025, the Competition Commission published its final Guideline on Internal Restructuring in terms of the Competition Act, 1998.

According to the guideline, internal restructuring refers to transactions within a group of firms and, in determining whether a transaction constitutes an internal restructuring, the commission will examine the current control structure and the control structure that will come into existence after implementation of the proposed transaction.

The guideline aims to provide guidance on what the commission is likely to determine to be a transaction that constitutes an internal restructuring, and the limited circumstances when a merger notification may be required regardless.

The guideline is not binding on the commission, and merger analysis is done on a case-by-case basis. Further, the guideline deals with control under section 12(1) and (2) of the Act only to the extent that it is relevant for assessing whether a transaction constitutes an internal restructuring.

Summary of the Guidelines on Internal Restructuring

1. Preface

The guideline is issued under section 79(1) of the Competition Act No. 89 of 1998 to provide guidance on transactions constituting internal restructuring and when merger notifications may be required.

It is not binding but must be considered when interpreting section 12 of the Act.

The Commission retains discretion to assess cases individually.

2. Definitions

Key terms such as “Acquiring Firm,” “Target Firm,” “Merger,” “Group of Firms,” and “Failure to Notify” are defined to clarify their application in the guideline.

Control is broadly defined, including direct or indirect influence over a firm’s business.

3. Introduction

The guideline explains the Commission’s approach to determining whether a transaction is an internal restructuring or requires merger notification.

It focuses on control under section 12(1) and (2) of the Act but does not cover competitive or public interest assessments under section 12A.

The principles are based on the Commission’s experience, jurisprudence, and international guidance.

4. Internal Restructuring

Internal restructuring refers to transactions within a group of firms.

The European Commission’s Jurisdictional Notice states that internal restructuring within a group does not constitute a notifiable merger.

However, the South African Competition Appeal Court (CAC) does not exclude transactions between a company and its wholly-owned subsidiary from the definition of a merger.

Notification may be required in limited circumstances outlined in the guideline.

5. Legislative Framework

The Commission assesses control changes to determine if a merger has occurred under section 12 of the Act.

Section 12(2) lists instances of control, such as ownership of shares, voting rights, appointment of directors, and influence over firm policy.

A change of control triggers the obligation to notify, subject to monetary thresholds.

The CAC emphasizes a broad definition of control to allow competition authorities to assess transactions that may alter market structures.

6. The Commission’s General Approach

Notification is generally not required for purely internal transactions that do not affect external minority shareholders’ control rights.

Notification may be required if:

·       Control rights of external minority shareholders change.

·       External shareholders lose or gain negative control (e.g., veto rights over strategic decisions).

·       Minority shareholder rights conferring control include veto rights over budgets, business plans, and appointments, but not ordinary investment protections.

Each transaction is assessed on its own merits.

7. Discretion

The guideline is not binding but must be considered when interpreting section 12 of the Act.

The Commission retains discretion to assess factors on a case-by-case basis.

Parties unsure about notification requirements can request an advisory opinion from the Commission.

8. Effective Date and Amendments

The guideline becomes effective on the date published in the Government Gazette.

It may be amended by the Commission as needed.

Final Price-Cost Margin Calculations Guidelines

The Competition Commission has published its final Price-Cost Margin Calculations Guidelines in terms of the Competition Act, 1998.

Purpose: These guidelines explain how the Commission intends to undertake the calculations of the price-cost margin, which is one of the factors that it may consider in assessing whether a price is excessive according to section 8(3)(a) of the Act. They focus on computation rather than assessing reasonableness. This section stipulates that the Commission is required to determine whether a price is higher than a competitive price and whether such difference is reasonable, taking into account all relevant factors, which may include the respondent’s price-cost margin, internal rate of return, return on capital invested, or profit history.

Scope: Limited to section 8(3)(a) of the Act, addressing price-cost margin calculations.

Key Factors:

Price: Derived using IFRS 15 principles, considering revenue, volume, discounts, and business cycles.

Operational Costs: Classified as fixed, variable, semi-variable, direct, indirect, manufacturing/non-manufacturing overhead, and joint costs. Allocation methods must reflect cost drivers and avoid revenue-based allocations.

Capital Employed: Includes tangible assets, leased assets, intangible assets (excluding goodwill), R&D costs, and working capital. Valuation methods prioritize market value, depreciated replacement cost, and insurance value.

Reasonable Rate of Return:

·       Weighted Average Cost of Capital (WACC): Calculated using cost of equity (via CAPM) and cost of debt.

·       Additional risk premiums (e.g., firm-specific, marketability) are excluded.

·       Capital Structure: Based on current structure and industry averages.

Discretion: The Commission may apply the price-cost test on a case-by-case basis and adapt methods as needed.

Annexures:

·       Cost Allocation Methods: Includes bases like sales income, direct labour, machine hours, and space usage.

·       Valuation Methods: Covers historical cost, replacement cost, market value, and insurance value.

These guidelines aim to ensure fair and consistent assessments in excessive pricing investigations.

Below are the Guidelines published by the CC to date.

GUIDELINES

·       Final Internal Restructuring Guidelines

·       Price-cost margin calculation guidelines

·       Erratum Notice – Draft Guidelines on the Commission’s Handling of Confidential Information

·       Draft interim block exemption for tariffs determination in the healthcare sector

·       Draft Guidelines on the Commission’s Handling of Confidential Information in terms of the Competition Act

·       Draft guidelines on internal restructuring

·       Guidelines on Indivisible Transactions

·       Block exemption regulations for small, micro and medium-sized businesses

·       Draft price-cost margin calculations guidelines

·       Regulations on Non-Binding Advisory Opinions

·       Guidelines for Competition in the South African Automotive Aftermarket

·       Revised public interest guidelines relating to merger control 2024

·       Draft Guidelines on the filing of merger notifications for hostile transactions

·       Invitation for public comment on the draft amended public interest guidelines relating to merger control

·       Rules regulating the procedure for appeals against Competition Commission decisions in Market Inquiries

·       Rules regulating the procedure for making a recommendation to the Competition Tribunal for divestiture following a Market Inquiry

·       Block exemptions regulations for energy suppliers 2023

·       Block exemptions regulations for energy users 2023

·       Invitation for public comment on the draft Block Exemption Regulations for Energy Supplies

·       Invitation for public comment on draft regulations (i)relating to appeals arising from market inquiries AND (ii) to a divesture recommendation

·       Final Guidelines on the exchange of Competitively Sensitive Information

·       Guidelines on small merger notification – Revised small merger guideline

·       Draft Guidelines on the Exchange of Competitively Sensitive Information under the Competition Act

·       Guidelines on collaboration between competitors on localisation initiatives

·       A Guide on Promoting Competition in Public Procurement

·       Draft Guidelines on collaboration between competitors on localisation initiatives

·       Final Guidelines on local procurement in the implementation of the South African Value Chain Sugarcane Master Plan to 2030

·       Block Exemption for the Security of Supply of Essential Goods, 2021

·       Final Guidelines on local procurement in the implementation of the South African Value Chain Sugarcane Master Plan to 2030

·       Draft guidelines on small merger notification

·       Draft Guidelines on local procurement in the implementation of the South African Value Chain Sugarcane Master Plan to 2030

·       Buying Power Guidelines

·       Notice of extended deadline for submission of comments

·       Request for comments: Competition Commission’s draft guidelines on information exchange between competitors

·       Determination of Administrative Penalties for Failure to Notify a Merger and Implementation of Merger

·       Draft Guidelines for the Determination of Administrative Penalties for Failure to Notify a Merger and Implementation of Merger

·       Draft Guidelines for the Determination of Administrative Penalties for Failure to Notify a Merger and Implementation of Merger

·       Guidelines for the Assessment of Public Interest Provisions in Mergers

·       Penalty Guidelines comments 16 Feb 2015 LawSociety

A.     Final Guidelines for Determination of Admin Penalties

B.     Final Guidelines for Determination of Admin Penalties

DATA PROTECTION ARTICLES

SOUTH AFRICA

The Regulator has launched a brand new eServices portal!

This Registration Portal has been retired.

Starting from the 1st of May 2024, all online services from the Regulator will be available on a brand new eServices portal.

From registering Information Officers to submitting PAIA Annual Reports, the portal offers a wide range of services to help organisations navigate the complex landscape of data protection regulations. With seamless navigation and user-friendly features, you will find everything you need to achieve and maintain compliance.

Click here to access the eServices portal.

OTHER MEDIA STATEMENTS

2025 Media Statements

Media Statement: Regulator launches online reporting platform for security compromises 7 APRIL 2025

MEDIA ALERT: Public and Private bodies invited to submit PAIA annual reports for 2024- 2025 17 MARCH 2025.

Media Statement: Information Regulator calls for the submission of PAIA annual reports 12 March 2025.

Media Statement: The Regulator welcomes the Justice Minister’s decision on publication of the Sex offenders register 4 March 2025.

Media Invitation: Information Regulator hosts a stakeholder consultative session on it’s annual plans for the 2025/2026 financial year 3 March 2025.

Media Invitation: Information Regulator & Naspers to host International Data Privacy Day dialogue 21 January 2025.

Media Statement: The Regulator acts on alleged security compromise incident suffered by the Department of Basic Education regarding Matric Results 13 January 2025.

Media Statement: Information Regulator’s reaction to Matric results court decision 8 January 2025.

ZAMBIA

Zambia’s Data Protection Commissioner Fully Operational, Enforcing Privacy Compliance

The Office of the Data Protection Commissioner (ODPC) is now fully operational, enforcing privacy and data protection compliance in Zambia.

Zambia’s data protection legislation, the Data Protection Act 2021 (DPA), came into force in April 2021. Two years later, in June 2023, the country’s first Data Protection Commissioner was appointed as required by the DPA.

According to Bwalya Chilufya-Musonda, Partner at African law firm Bowmans in Zambia, the DPA, among other things, seeks to establish a robust framework that governs the collection, use, processing, storage, and transmission of personal data, ensuring its protection throughout these processes. It also regulates the activities of data controllers and processors to promote transparency, accountability and security in the handling of personal information.

“The complete operationalisation of the ODPC is a significant milestone in Zambia’s developing privacy and data protection framework. So far, the ODPC has issued essential regulations and guidelines in compliance with the Commissioner’s jurisdiction under the DPA,” she says.

Joshua Mwamulima, Partner at Bowmans Zambia, further notes that the ODPC has also initiated the online registration process for data controllers and processors, requiring all data processors and controllers to register by 30 April 2025.

“Failing to register by the stated date is an offence punishable by a fine of ZMW 200 000 (approximately USD 7 186) and/ or imprisonment of up to five years. We anticipate that enforcement will follow in due course,” Mwamulima explains.

Chilufya-Musonda and Mwamulima urge data controllers and processors operating in Zambia to promptly assess their compliance status and align with these requirements to mitigate the risk of potential enforcement actions.

ITnewsafrica

SEE-https://www.odpc.go.ke/

ENVIRONMENTAL ARTICLES

SOUTH AFRICA

South Africa’s Climate Change Act 22 of 2024

INTRODUCTION

The Climate Change Act 22 of 2024 is a landmark legislation in South Africa that aims to provide an integrated economic and social response to climate change. The Act was signed into law by President Ramaphosa on July 18, 2024, and its commencement date was proclaimed on March 17, 2025 .

This article provides an analysis of the Act’s provisions and their implications for Environmental, Social, and Governance (ESG) considerations in South Africa. We examine the Act’s key provisions, including emission reduction targets, carbon offsetting, and climate change adaptation planning. We also discuss the opportunities and challenges arising from the implementation of the Act, with a focus on ESG considerations. The article concludes by highlighting the need for effective implementation, stakeholder engagement, and ESG integration to achieve the Act’s objectives.

MAIN OBJECTIVES

– Provide a coordinated response to climate change: The Act seeks to facilitate a unified national response to climate change, ensuring that all sectors and stakeholders work together to mitigate its impacts.

– Enable a just transition to a low-carbon economy: The legislation aims to support South Africa’s transition to a low-carbon economy, promoting sustainable development and protecting the environment.

– Stabilize greenhouse gas concentrations: The Act seeks to reduce South Africa’s greenhouse gas emissions, contributing to global efforts to stabilize GHG concentrations and mitigate climate change .

KEY PROVISIONS

 – National Adaptation Strategy and Plan: The Minister of Forestry, Fisheries, and the Environment must develop a national adaptation strategy and plan to address climate change impacts.

– Carbon Budgets: The Minister must allocate carbon budgets to individuals and organizations engaged in activities that emit greenhouse gases, specifying the maximum allowed GHG emissions.

– Sectoral Emissions Targets: The Minister must publish a list of GHG-emitting sectors and sub-sectors, setting sectoral emissions targets to be implemented by ministers.

– Greenhouse Gas Inventory: The Act establishes a national GHG inventory to track emissions trends and compare them to international climate change mitigation commitments .

Overall, the Climate Change Act 22 of 2024 provides a comprehensive framework for South Africa’s response to climate change, promoting a coordinated, sustainable, and environmentally conscious approach to addressing this global challenge.

ANALYSIS OF ESG IMPLICATIONS AND OPPORTUNITIES

Introduction

Climate change is a pressing global issue, with significant impacts on the environment, human health, and the economy. South Africa, as a signatory to the Paris Agreement, has committed to reducing its greenhouse gas emissions and promoting sustainable development. The Climate Change Act 22 of 2024 is a critical step towards achieving these objectives.

 Background

The Climate Change Act 22 of 2024 aims to provide a regulatory framework for climate change mitigation and adaptation in South Africa. The Act sets out several key provisions, including:

1. Emission reduction targets: The Act requires the Minister of Forestry, Fisheries and the Environment to set emission reduction targets for different sectors and industries.

2. Carbon offsetting: The Act allows for carbon offsetting as a means of reducing emissions, subject to certain conditions and guidelines.

3. Climate change adaptation planning: The Act requires the development of climate change adaptation plans at national, provincial, and local levels.

ESG Implications

The implementation of the Climate Change Act 22 of 2024 has significant implications for ESG considerations in South Africa. Some of the key implications include:

1. Environmental impacts: The Act’s provisions on emission reduction targets and carbon offsetting will require companies to adopt more environmentally friendly practices and reduce their carbon footprint.

2. Social impacts: The Act’s provisions on climate change adaptation planning will require consideration of social impacts, including the effects on vulnerable communities and human health.

3. Governance impacts: The Act’s provisions on emission reduction targets and carbon offsetting will require companies to adopt more transparent and accountable governance practices.

Opportunities and Challenges

The implementation of the Climate Change Act 22 of 2024 presents both opportunities and challenges for ESG considerations in South Africa.

Key  opportunities

1. Transitioning to a low-carbon economy: The Act’s provisions on emission reduction targets and carbon offsetting provide an opportunity for South Africa to transition to a low-carbon economy.

2. Promoting sustainable development: The Act’s provisions on climate change adaptation planning provide an opportunity for South Africa to promote sustainable development and reduce poverty.

3. Enhancing ESG disclosure: The Act’s provisions on emission reduction targets and carbon offsetting provide an opportunity for companies to enhance their ESG disclosure and transparency.

Challenges

1. Lack of capacity and resources: The implementation of the Act will require significant capacity and resources, which may not be readily available.

2. Resistance from industry: Some industries may resist the implementation of the Act, particularly if they perceive it as a threat to their operations or profitability.

3. Complexity and uncertainty: The Act’s provisions on emission reduction targets and carbon offsetting may be complex and uncertain, which can create challenges for implementation.

CONCLUSION

The South African Climate Change Act 22 of 2024 is a critical step towards reducing greenhouse gas emissions and promoting sustainable development. The Act’s provisions on emission reduction targets, carbon offsetting, and climate change adaptation planning have significant implications for ESG considerations in South Africa. While there are opportunities associated with the implementation of the Act, there are also challenges that need to be addressed. Effective implementation, stakeholder engagement, and ESG integration will be critical to achieving the Act’s objectives.

TEM Insight

Eskom granted air quality exemptions under ‘strict’ conditions

Eskom has been granted limited air quality exemptions for eight of its coal-fired power stations. Critics warn this move delays much-needed compliance as affected communities continue to suffer deadly health consequences.

South Africa’s Minister of Forestry, Fisheries and the Environment Dion George has granted Eskom limited exemptions from Minimum Emission Standards (MES) for eight of Eskom’s coal-fired power stations. The exemptions, granted on Monday, 31 March 2025, come with “strict” conditions, including emission reduction measures and health interventions.

Two power stations, Duvha and Matla, were granted nine-year MES exemptions until their planned decommissioning dates in 2034. Six other power stations were granted five-year MES exemptions until 1 April 2030. These are Kendal, Lethabo, Majuba, Matimba, Medupi and Tutuka.

These are some of the dirtiest coal power plants anywhere in the world, responsible for thousands of deaths from air pollution each year, but have essentially been exempt from complying with South African law for years.

Eskom has been granted multiple exemptions and postponements from MES over the years, notably in 2019 when the power utility applied for exemptions for several power stations. This was granted in 2021 and set for expiry in 2025, leading to Eskom’s current exemption applications.

skom submitted its exemption application in terms of Section 59 of the National Environmental Management Air Quality Act (Nemaqa).

According to civic organisations advocating for coal-affected communities in these areas, the minister’s announcement on Monday effectively extends Eskom’s licence to continue operating under the exemption for another five to nine years.

But upon announcing his decision on Monday, George said that “these exemptions are not a blanket reprieve, but are tailored to each facility, with stringent conditions to mitigate the impacts of non-compliance with the MES”.

Lauri Myllyvirta, co-founder of the Centre for Research on Energy and Clean Air (Crea), told Daily Maverick that Eskom should have begun work on installing SO2 pollution controls in all its power stations a decade ago to comply with the 2020 deadline for South African emission standards.

However, he said the government had failed to enforce this requirement on a single operating coal power plant, instead granting delay after delay.

“Today’s decision is not as bad as it could have been in that most plants were not given blanket exemptions until end of life. However, this only makes a difference if the government moves quickly to require Eskom to begin the planning and installation of pollution controls,” said Myllyvirta.

The minister was adamant that he intended to put Eskom under pressure with the conditions and timelines attached to granting their exemptions.

“It certainly puts them under pressure. And that is actually my intention, because more of the same is not going to work. That is the point. The game has changed, and now let’s proceed on that basis,” said George.

Conditions to mitigate impacts of non-compliance 

“These exemptions are not a blanket reprieve, but are tailored to each facility, with stringent conditions to mitigate the impacts of non-compliance with the MES,” said George.

He listed a series of “rigorous conditions” attached to granting the exemptions, which he said Eskom had to implement at both fleet and plant levels. These included:

• Health interventions: Eskom must deploy air quality monitoring stations and a data-free alert app within eight months, appoint an environmental health specialist within three months and extend community health screening programmes within six months. Mobile clinics and greenspace initiatives will further support affected communities;
• Socioeconomic measures: Eskom is directed to expedite its offset programmes, expand interventions to 96,000 households within 12 months, and address waste and ash dumps near power stations;
• Air quality transparency: Real-time emissions data must be published immediately, with additional monitoring stations installed within 12 months;
• Emission reduction: A revised cost-benefit analysis for Medupi’s flue gas desulphurisation is required within six months, alongside studies to establish flexibility at coal plants and prioritise renewable dispatch; and
• Renewable energy acceleration: Eskom is encouraged to submit an annual report, due by the end of March each year, detailing progress on facilitating the integration of renewable energy into the grid; supporting the acceleration of licensing processes for new renewable projects; and ensuring sufficient renewable capacity is available to replace coal-fired plants as they are phased out.

Should Eskom fail to comply with George’s conditions, the minister warned that “there will be consequences. And I’m not going to say what those consequences are, but… I do have a significant amount of power, but remember if you’re going to exercise power, you must do it responsibly. I’ve always got my eye on what is in the best interest of South Africans.”

George told Daily Maverick in an interview that in Eskom’s application, it requested exemptions for some plants for a decade and others for even more.

“The reason why I [granted] the five years is because it was substantially less than what they had asked for, and I thought it was reasonable,” said George.

George acknowledged that in the past, Eskom had been granted multiple exemptions and postponements from South Africa’s MES over the years.

“Frankly, it is true that Eskom has been misbehaving for a long time and then there have been no consequences because they’re too big to fail and because well, you know, what are you going to do? So I have now drawn that line,” said George.

Following the minister’s announcement, Eskom is now set to review the decision and noted that it would now legally be allowed to continue operating Medupi, Majuba, Matimba, Kendal, Lethabo, Tutuka, Matla and Duvha power stations beyond the 31 March 2025 deadline.

This, the power utility noted, contributed a total of 29,000MW to South Africa’s electricity grid.

“Eskom is committed to working with the DFFE and all stakeholders, and it will make further announcements in due course. The company remains dedicated to aligning with regulatory requirements and implementing sustainable solutions to ensure long-term operational efficiency, reducing any negative impacts on health and environmental stewardship,” Eskom’s media release said.

‘A regression of air quality laws’

The continued exemption and non-compliance have been described as a regression of South Africa’s air quality laws, by JustShare, groundWork and the Centre for Environmental Rights (CER).

Robyn Hugo, director of climate change engagement at shareholder activism organisation JustShare, told Daily Maverick that even though there were some important conditions attached to these decisions, granting exemptions from minimum standards was “an extremely regressive approach”.

This, she said, was especially given that all the facilities were in air pollution priority areas and that the high court had found that air pollution in the Mpumalanga Highveld (where five of these facilities are) violated the constitutional environmental right.

“In response to what is framed as a ‘decision [that] reflects a pragmatic yet principled approach’, it is important to recall the original legitimate government purpose behind the MES; namely, to reduce atmospheric pollution from activities that have or may have a significant detrimental effect not only on the environment, but also public health, social conditions, economic conditions, ecological conditions and cultural heritage,” said Hugo.

The “health interventions” identified in George’s decision, according to Hugo and GroundWork, failed to address the devastating health impacts of air pollution in the Highveld Priority Area, and the significant deaths attributed to Eskom emissions.

“The effect of this toxic pollution will continue to fall most heavily on poor people – who have not only been (and will continue to be) worst affected by SA’s heavy reliance on fossil fuels, but who remain desperately underserved by the current system,” said Hugo.

Along with other groups like CER and groundWork, Hugo said it was also unclear how effective monitoring and implementation of these conditions would be and how non-compliance would be enforced.

Director of groundWork Bobby Peek told Daily Maverick that by kicking the can down the road, the minister was delaying the urgency of a just decommissioning of these power stations.

“He has delayed the urgency of what is inevitable, and what is inevitable is the closure of these coal-fired power stations,” said Peek.

The minister used strong language in his decision announcement, but essentially, Peek said, “he has allowed Eskom to get away with murder again, in terms of them circumventing the already weak air pollution laws that we have… He talks left, but he actually walks right.”

Peek said that Mpumalanga was a “sacrifice zone” by the government and big industry to reap profits and kill people.

“It’s a sacrifice zone, not only in health, but in poor working conditions for people. What we need for Mpumalanga is that we need industry and Eskom to reduce their emissions urgently, considering the issue of people’s immediate health and death at stake, and we need government to implement an urgent and practical health delivery plan that speaks to the urgency of this area,” said Peek.

By not taking health seriously, according to Peek, government was saying to the world that it was prepared to run these power stations “at the expense of people’s lives”.

Ntombi Maphosa, an attorney at the CER, also expressed disappointment in the minister’s decision to grant Eskom a five- to nine-year exemption.

“At the end of the day, we still see this as a regression of air quality laws as a whole. And [it’s] quite disappointing,” said Maphosa.

The minister said that if he had not granted the exemptions to Eskom, it would be operating illegally from 1 April 2025, which would mean that it needed to shut down.

This, the minister said, would not have been sensible. He later told Daily Maverick that there would always be a compromise in this decision.

“That’s why I’ve put very strict conditions in terms of health and environment. We will carry on because the lights must stay on, but at the same time, we are now activating the just energy transition,” said George.

By Kristin Engel

Daily Maverick

FINANCE ARTICLES

SOUTH AFRICA

DIRECTIVE 3A, NOTIFICATION OF FAILURE TO REPORT

On 31 March 2025, the Financial Intelligence Centre (FIC) published Directive 3A, Notification of failure to report as required by the FIC in terms of the Financial Intelligence Centre Act, 2001.

It applies to accountable institutions and individuals obligated to file reports under sections 28, 28A, 29, and 31 of the FIC Act, which include cash threshold reporting, terrorist property reporting, suspicious transaction reporting, and international funds transfer reporting.

According to the directive, where a person or institution becomes aware of a reporting failure to the FIC, it must mitigate the loss of intelligence data to the FIC by informing the FIC in writing of the reporting failure immediately after becoming aware of it and requesting an engagement to discuss mitigation factors.

Any subsequent arrangements for the mitigation of lost intelligence does not imply condonation of the failure to report information to the FIC, nor does it absolve the reporter from its continuing reporting obligations under the Act, or prevent enforcement action being taken by the relevant supervisory body.
The directive emphasizes the importance of these reports in combating money laundering, terrorist financing, and related activities.  It mandates that any person or institution aware of a reporting failure must immediately notify the FIC in writing and request an engagement to discuss mitigation measures.  However, mitigation efforts do not condone the failure or absolve the reporter from ongoing obligations or enforcement actions.

The directive is effective upon publication in the Government Gazette, and the notification must be addressed to the Executive Manager, Compliance and Prevention, Financial Intelligence Centre.

Section 1: Purpose

·       It applies to accountable institutions and individuals obligated to file reports under sections 28, 28A, 29, and 31 of the FIC Act.

·       The FIC’s main objective is to identify proceeds of unlawful activities, combat money laundering, terrorist financing, and proliferation financing.

·       The FIC processes, analyzes, and retains information disclosed through reports filed under the FIC Act.

·       Reports required include:

• • • Section 28: Cash threshold reporting
    • Section 28A: Terrorist property reporting
    • Section 29: Suspicious and unusual transaction reporting
    • Section 31: International funds transfer reporting

·       Failure to submit these reports results in the loss of critical intelligence data needed by the FIC.

Section 2: Directive

·       If a person or institution becomes aware of a reporting failure, they must:

§  Notify the FIC in writing immediately, addressed to the Executive Manager, Compliance and Prevention.

§  Request an engagement with the FIC to discuss mitigation measures.

·       Mitigation efforts do not condone the failure to report, absolve the reporter of ongoing obligations, or prevent enforcement actions by supervisory bodies.

OTHER DOCUMENTS RELEASED BY THE FIC

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SOUTH AFRICA

Navigating Proposed Amendments to South Africa’s Labour Legislation: Part I

Proposed Amendments to the Labour Relations Act

Introduction

South Africa’s labour landscape is poised for significant changes through proposed amendments to key legislation, which aim to balance employee protection with economic growth and flexibility for employers. This article, which will be published in three parts, will provide an overview of the main proposed changes to assist employers in understanding and preparing for their potential impact.

Following extensive negotiations between organised business, organised labour, and the government at the National Economic Development and Labour Council (NEDLAC), which began in April 2022, the NEDLAC Report on the Labour Law Reform Process has been released.

The report captures the proposals tabled and the outcomes of these discussions and has been submitted to the Minister of Employment and Labour, accompanied by four proposed amendment bills. These bills suggest 47 amendments to the Labour Relations Act, 1995 (LRA), 13 amendments to the Basic Conditions of Employment Act, 1997 (BCEA), two amendments to the National Minimum Wage Act, 2018 (NMWA), and three amendments to the Employment Equity Act, 1998 (EEA). Part I will address the proposed amendments to the LRA, Part II will address the proposed amendments to the BCEA, NMWA and the EEA; and finally, Part III will address the implications of such amendments.

While these proposed reforms mark significant progress, they are still subject to the legislative process. The draft bills will undergo vetting by the State Law Advisor before proceeding through Parliament. Once this process begins, there will be opportunities for public comment. Given that many of the final proposals did not secure unanimous support from all three social partners, further debate and potential amendments are expected.

Labour Relations Act (LRA)

Limitation of Remedies for Unfair Dismissal of High-Earning Employees

A notable proposal introduces a new section to the LRA, limiting remedies for unfair dismissal claims by high-earning employees. Employees earning above R1.8 million per annum (adjusted annually with the consumer price index) would be entitled to reinstatement only in cases of automatically unfair dismissals (for example dismissals involving discrimination). For other unfair dismissal claims (for example misconduct dismissals), only compensation can be awarded and this would be capped to a maximum of the amount prescribed by the Minister in terms of a new section 208B of the LRA.

Clarification of Procedural Fairness in Dismissals

The proposed amendments seek to clarify that, subject to applicable collective agreements, a fair dismissal procedure requires giving the employee an adequate and reasonable opportunity to respond to the reasons for dismissal. This aligns with the draft Code of Good Practice on Dismissal, moving away from formal, adversarial pre-dismissal processes.

Exemptions during the probation period

A new section 188(4) proposes that protection against unfair dismissal does not apply during the first three months of employment or a longer, reasonable, and operationally justifiable probation period specified in the employment contract. However, protection against automatically unfair dismissals remains during this period. This aims to encourage the hiring of new employees, particularly those without prior work experience.

Changes to Large-Scale Retrenchment Processes

The amendments propose transferring the authority to make rules related to facilitation from the Minister to the Commission for Conciliation, Mediation, and Arbitration (CCMA). Additionally, the current regime which only allows for the procedural fairness in retrenchments to be challenged prior to the retrenchments, would change, allowing all aspects of a retrenchment dismissal to be challenged after the dismissal, thereby rolling back to the legal position which existed prior to the introduction of section 189A(13) – (17) of the LRA.

Bargaining Councils & Collective Agreements

New businesses (operating for less than 2 years and with under 50 employees) are exempt from bargaining council agreements unless formed through a merger or split of an existing business. Businesses acquired through the transfer of a going concern, in terms of section 197(1) of the LRA and businesses formed through the division or dissolution of an existing entity, will remain subject to bargaining council agreements.

Trade unions must conduct a secret ballot every three years to determine whether to continue closed shop agreements (compulsory union membership arrangements).

Essential Services & Minimum Service Agreements

The amendments clarify that workers in essential services can strike, but only if minimum service agreements allow it.

Narrowing the Definition of an Unfair Labour Practice

Disputes over promotion, demotion, probation, training, and benefits will no longer be classified as unfair labour practices under the LRA. Such disputes will now need to be determined within the company through its internal grievance procedures, or alternatively through a dispute on the grounds of a breach of contract.

Stricter Financial Regulations for Trade Unions & Employers’ Organisations

These organisations must now comply with financial reporting standards set under the Companies Act, 2008, including keeping records of its income, expenditure, assets and liabilities, as well as the preparation of annual financial statements.

Dismissal Procedures & Code of Good Practice

The Code of Good Practice on Dismissal has been updated to clarify fair procedure, ensuring that employees have a reasonable opportunity to respond before dismissal.

Small businesses will have less stringent procedural requirements for dismissals.

Conclusion

The proposed amendments to South Africa’s labour laws signify a major shift. Allowing strikes in essential services, redefining unfair labour practices, enforcing financial regulations for trade unions and employers’ organisations, and updating dismissal procedures aim to balance employee protection with employer flexibility. These changes enhance operational efficiency and protect workers’ rights.

Frances Barker

Norton Rose Fulbright

Navigating Proposed Amendments to South Africa’s Labour Legislation: Part II

Proposed Amendments to the Basic Conditions of Employment Act, National Minimum Wage Act, and the Employment Equity Act

Introduction

Building on the foundation laid out in Part I, which discussed the proposed amendments to the Labour Relations Act, 1995 (LRA), Part II will delve into the changes being suggested for the Basic Conditions of Employment Act, 1997 (BCEA), the National Minimum Wage Act, 2018 (NMWA), and the Employment Equity Act, 1998 (EEA). These reforms aim at enhancing employee rights and streamlining dispute resolution mechanisms. Although less detailed, this section will outline the key adjustments proposed, highlighting the ongoing effort to modernize South Africa’s labour laws. Part III will then explore the broader implications of these legislative changes, ensuring that readers are well-informed about the potential ramifications for both employers and employees.

As noted in Part I, the proposed reforms remain subject to the legislative process. The draft bills will be reviewed by the State Law Advisor before proceeding through Parliament. Once this process begins, public comment will be invited. Since many of the final proposals did not receive unanimous support from all three social partners, further debate and amendments may occur.

Employment Equity Act (EEA)

Updated Definition of “Employment Law”

The bill amends the definition of “employment law” to remove outdated references to laws such as the Guidance and Placement Act, 1981 and the Manpower Training Act, 1981.

It incorporates newer laws such as the Employment Services Act, 2014, and the National Minimum Wage Act, 2018, reflecting the current legal framework.

Expanded Access to Arbitration for Unfair Discrimination Claims

Employees alleging unfair discrimination due to harassment, irrespective of their level of remuneration, may refer their disputes to the CCMA for arbitration, rather than being obliged to approach the Labour Court.

Employees earning below the earnings threshold determined by the Minister under the BCEA can also refer unfair discrimination claims to arbitration at the CCMA instead of the Labour Court, making dispute resolution more accessible.

Clarification on Dispute Referral to Bargaining Councils

A new provision clarifies that disputes under the EEA may be referred to a bargaining council if:

A collective agreement binds the parties to the dispute; or

The bargaining council is accredited under the Labour Relations Act to handle conciliation or arbitration of such disputes.

Basic Conditions of Employment Act (BCEA)

Severance pay would be increased from one week to two weeks per year of service.

Employers must transfer benefit fund payments on time or face financial penalties.

The amendments aim to align the BCEA with sectoral determinations, ensuring that basic conditions of employment are standardized across various industries. This includes adjustments to working hours, leave entitlements, and other fundamental employment conditions.

To ensure compliance with the BCEA, the proposed amendments introduce stricter enforcement mechanisms. This includes increased penalties for non-compliance and enhanced powers for labour inspectors to enforce basic employment standards.

National Minimum Wage Act (NMWA)

The amendments to the NMWA are aimed at strengthening enforcement and compliance measures. Notably, amendments have been proposed to section 4(4) and (5) and section 5(1)(a), in order to exclude deferred payments, such contractual bonuses, from the determination of the minimum wage.

Conclusion

The proposed amendments to South Africa’s labour laws aim to modernise employment standards across sectors. By increasing severance pay, enforcing timely benefit fund payments, and introducing stricter compliance mechanisms, the proposed amendments to the BCEA aim to ensure uniform employment conditions. The proposed changes to the NMWA clarify deferred payments and contractual bonuses, emphasising a fair minimum wage. These potential reforms balance worker protections with employer flexibility, with the aim of fostering a fair labour environment.

Frances Barker

Norton Rose Fulbright

Navigating Proposed Amendments to South Africa’s Labour Legislation: Part III

Implications for Employers

Introduction

In light of the proposed amendments detailed in Parts I and II of this article, which discussed the proposed amendments to the Labour Relations Act, 1995 (LRA), the Basic Conditions of Employment Act, 1997 (BCEA), the National Minimum Wage Act, 2018 (NMWA), and the Employment Equity Act, 1998 (EEA), Part III will examine the broader implications of the proposed amendments to South Africa’s labour legislation for both employers and employees. It will offer a nuanced analysis of how these changes might impact workplace dynamics, employee rights, and employer responsibilities.

As noted in Parts I and II, the proposed reforms must still go through the legislative process. The State Law Advisor will review the draft bills before they proceed through Parliament. Public comment will be invited once this process starts. As not all social partners unanimously supported many of the final proposals, further debate and amendments may occur.

Implications for Employers

More flexibility in dismissing high-earning employees and new hires within the first three months.

Employers will have greater discretion in managing high-earning employees, as their remedies for unfair dismissal will be limited to capped compensation, except in cases of automatically unfair dismissals. This will limit the business risk to employers where a tribunal finds that they have acted unfairly.

New hires within their first three months of employment (or a reasonable probation period) will have restricted access to unfair dismissal protections, allowing employers to assess suitability without immediate legal risk.

Less exposure to unfair labour practice claims in disputes over promotions, benefits, and training.

The proposed amendments remove disputes related to promotions, demotions, training, and benefits from the definition of unfair labour practices, reducing the risk of costly and prolonged litigation for employers. This change provides businesses with greater autonomy in making operational decisions regarding employee development and career progression.

The compensation awarded to an employee in respect of an unfair labour practice is to be capped to a maximum of the amount prescribed by the Minister in terms of the new section 208B of the LRA, though this cap does not apply to cases involving whistleblowing.

Exemptions for start-up businesses from bargaining council agreements provide cost relief.

New businesses operating for less than two years and employing fewer than 50 employees will no longer be automatically bound by bargaining council agreements, unless they result from a merger or division of an existing entity. This exemption lowers compliance costs and administrative burdens, making it easier for start-ups to establish themselves in the market.

More Accessible Dispute Resolution

Employers may see an increase in CCMA cases relating to harassment-based discrimination claims, because employees will have an easier avenue to bring cases without requiring Labour Court adjudication.

Retrenchments and Bargaining Council Jurisdiction

The risk inherent in retrenchment processes and dismissals will be increased, because procedural fairness challenges can now be brought after dismissals and may expose economically vulnerable employers to claims for significant compensation in large scale retrenchments.

Employers operating under sectoral collective agreements should be aware that disputes could now be directed to accredited bargaining councils rather than the CCMA or Labour Court.

Legal Consistency

The updated definition of “employment law” in the EEA ensures alignment with modern labour legislation, but does not impose new substantive compliance obligations.

These changes focus on procedural efficiencies rather than major shifts in employment equity obligations. Employers should review internal dispute resolution mechanisms to align with these potential amendments, particularly regarding harassment complaints and bargaining council dispute handling.

Employees below the earnings threshold can now have their discrimination claims arbitrated at the CCMA, avoiding the costly Labour Court process.

Conclusion

The proposed amendments to South Africa’s labour laws introduce significant changes aimed at balancing employee protection with increased flexibility for employers. Key reforms include streamlined dismissal processes for high-earning employees and new hires, reduced exposure to unfair labour practice claims, and regulatory relief for start-ups.

Frances Barker

Norton Rose Fulbright