“As long as people think the BEE legislation and regulations only benefit black people and only harm white people, the government will be able to sustain this system. However, when South Africans realise it harms everyone – including the many black workers who could lose their jobs – the picture begins to change,” says Gabriel Crouse, head of the legal department of the Institute of Race Relations (IRR).
By Jasper Raats, senior journalist at African Farming and Landbouweekblad
Crouse recently warned South Africa’s new employment equity regulations pose a significant risk to workers of all races – and, ironically, could even lead to a reduction in black workers.
This is particularly important for the agricultural sector, which according to the government has created 924 000 direct jobs by the end of 2024 and is enabling more than 200 000 additional jobs in the agricultural value chain.
According to Crouse, with the latest amendments, the government has effectively introduced a system of racial quotas in 2025 – something the courts have explicitly declared unconstitutional in previous years.
From next year, about 7.5 million employees at companies with more than 50 staff must report to the state on their racial classification according to the four prescribed categories: black, coloured, Indian and white.
He says the crux of the problem lies in Regulation 9(10). It forces employers to avoid any “over-representation” of a racial or race-gender group. In other words: If a certain group is more represented than their share of the country’s economically active population (EAP), the employer may not appoint or promote more people from that group.
Why it affects both black and white workers
The most common public perception is that the new quotas are mainly to the disadvantage of white workers. However, Crouse believes the mathematics – and the legal rulings on which the system is based – show that any race-gender balance that is overrepresented can be excluded. This includes black men, black women, Indian women and coloured men.
He points to legal precedents in the South African Police Service (SAPS), where the so-called Barnard principle is already applied to prevent black men, black women and coloured candidates from being promoted when their group is considered overrepresented in terms of the state’s formulae.
This principle means an employer may refuse to appoint or promote someone – even if he or she is the best candidate – if their race-gender group is considered “overrepresented” according to the state. This stems from the Constitutional Court’s ruling in 2014 in the case between the SAPS and Solidarity, on behalf of Renate Barnard, in which the court ruled that the SAPS may legally refuse to promote her to meet its racial goals.
The Constitutional Court itself confirmed this principle does not only apply to white employees.
“It has happened before that a court found that the target for Indian women in a certain role is was set at zero because even one person in a small company is already too many in terms of the state formulae,” says Crouse.
Also read: Avoiding legal traps: Common mistakes made by farmers
Impact on farm operations
Although his presentation was not specifically about agriculture, the implications for this sector are clear with many farms historically having a majority of black or coloured workers. If the EAP for their province indicates a lower percentage for that group, that farm is automatically overrepresented under the new regulations.
According to regulation 9(10), employers must prevent overrepresentation. Thus, a farmer can be prevented from hiring additional black workers, even if they are the only available farm workers, simply because the business already has “too many” of the group.
Where black workers are overrepresented under the EAP, farmers will be forced to hire under-represented groups to meet the quotas. This means, for example, a farm that has mainly black workers may have to seek out and hire white men or women to achieve the state’s racial balance. This is exactly the type of perverse outcome that Crouse warns against – a policy introduced under the banner of transformation could in practice limit black workers’ job prospects.
Also read: Getting farm employment right: Your compliance checklist
Fines and inspections
Crouse explains that the Department of Labour will appoint 20 000 new inspectors with powers to enter any business without a warrant and investigate. Failure to comply could result in a farm being fined, losing its ability to obtain government contracts or ultimately no longer meeting strict licensing requirements.
Crouse believes that the Constitution does allow conscientious objection to forced racial classification. In theory, individuals – and possibly even organisations – could refuse to select a race on the form. But this has not yet been tested in the courts, and as long as the legal position is unclear, farm employers could expose themselves to legal action by the state.
He warns that the real problem is that the whole system benefits no one, but that everyone loses.
According to Crouse, fewer hiring, lower productivity and greater labour inflexibility could hit the economy and workers in particular the hardest.
Also read: Minimum wage for farmworkers increased by 4.4%
