An Alternative Employment Equity Act

An Alternative Employment Equity Act

An Alternative Employment Equity Act

In a world striving for equality and diversity, the South African Employment Equity Act (EEA) is a testament to the country’s failure to redress historical injustices. However, identifying individuals as part of ‘designated groups’ under the EEA presents a moral and ethical conundrum that cannot be overlooked. This issue is particularly contentious as it risks resurrecting echoes of segregation, racism, and apartheid-style legislation under the guise of promoting equality. Apparently we learnt nothing from 40 years of apartheid, and we are hell-bent on destroying ourselves?


In this article, I delve into the complexities surrounding race classification-based race. Race defined as by the repealed Population Registration Act of 1950. I propose a radically different possible solution and redress of mono-ethnicity organisations while respecting the rights of South Africans.


The Conundrum of Designated Groups:


At the heart of the EEA is the identification of ‘designated groups’ – a term that has become a focal point of debate and concern. The Act aims to ensure fair representation and treatment of these groups in the workplace. However, the process of identifying individuals’ race poses genuine risks. When based on traditional racial categories, it can inadvertently perpetuate division; there is a thin line between promoting diversity and inadvertently fostering segregation. It is imperative to address this issue with a balanced and sensitive approach, ensuring that measures to promote equity do not become tools for apartheid and discrimination. A more inclusive approach, focusing on cultural affiliation and self-identification, based on the immediate geographical area it offers an alternative path forward. No-one but the Creator can provide a utopian solution, but I explore how combining voluntary self-declaration with an emphasis on cultural identity can create a more nuanced and ethical framework for employment equity based on a 50-km catchment area.


This is a concept that has been previously introduced and implemented in New Zealand. Their approach to addressing race issues used ethnicity as the basis of identification, an innovative and inclusive method. This method focuses on cultural affiliation rather than race, ancestry, nationality, or citizenship. In the South African context, transitioning to an ethnicity subscription model in place of racial identification presents several challenges beyond the risks of cultural segregation and alienation. One needs to understand the differences between race and ethnicity to define ethnicity. Although race and ethnicity are terms often used interchangeably, they have distinct meanings:



Traditionally, race categorises humans based on physical characteristics such as skin colour, facial features, hair texture, and bone structure. It is a social construct rather than a scientific one, as the genetic differences within any so-called ‘race’ are often more significant than those between races. Race categorisations have been used historically to establish and maintain social hierarchies and systems of privilege and oppression.



On the other hand, ethnicity is related to cultural factors such as nationality, culture, ancestry, language, and beliefs. Unlike race, which is more about physical characteristics, ethnicity is about shared cultural traits and a sense of shared group identity. Ethnic groups usually have common ancestry and cultural traditions, including a shared language, religion, and customs. South African ethnic groups (alphabetically) Afrikaner, Cape Coloureds, Cape Malays, Dutch, Chinese, English, Fengu, Fula, French, German, Gonaqua, Griqua, Hlubi, Indian, Irish, Khoekhoe, Khoisan, Lemba, Lobedu, Memons, Nama, Namibians, Nguni, Northern Ndebele, Norwegian, Oorlam, Pakistanis, Pedi, Phuthi, Ratelgat, San, Scottish, Shona, Sotho, Southern Ndebele, Swazi, Tsonga, Tswana, Turks, Venda, Xhosa, Zimbabweans, and Zulu.


Here are some anticipated challenges:


• Defining ‘Culture’: Culture is a broad, fluid, and sometimes ambiguous concept, encompassing language, traditions, beliefs, and practices. Defining a ‘culture’ for subscription could be complex and contentious.

• Cultural Appropriation Concerns: There might be concerns about cultural appropriation, where individuals claim a cultural identity that is not authentically theirs, potentially leading to exploitation.

• Administrative and Bureaucratic Complexity: Implementing a system based on cultural subscription could be administratively complex because culture is more dynamic and subjective to the individual, making it harder to categorise and document.

• Intersectionality and Overlapping Identities: People often belong to multiple cultural groups simultaneously, which can intersect in complex ways. Accounting for the intersectionality of cultural identities in administrative or legal frameworks could be challenging.

• Data Collection and Monitoring Issues: Collecting and monitoring cultural data might be more challenging than racial data. The fluidity and self-determined nature of cultural affiliation make it difficult to capture this information accurately and consistently over time.

• Evolving Cultural Identities: Cultural identities can evolve and change over time, with beliefs, religion, and marriage.

• Social Integration and Unity: While celebrating diversity, there’s a risk that emphasising distinct cultural subscriptions could inadvertently hinder social integration and unity efforts, highlighting differences over commonalities.

• Legal and Policy Implications: Shifting to a cultural subscription model would have significant legal and policy implications, requiring a thorough overhaul of existing laws, regulations, and administrative procedures related to identity, employment equity, and social services.


How were these challenges largely solved?


Many countries like The United States, Russia, Canada, New Zealand, and Australia, to name but a few, moved away from racial classification to a more nuanced multifaceted system that aligns with the cultural, tribal and ethnicity of the country’s citizens. Although they can’t play rugby, one of the more successful systems is the system adopted by New Zealand. Overall, the move to ethnicity held many advantages, solving all challenges and purporting a more correct reflection of the country’s inhabitants.


In this system, ethnicity is seen as a measure of cultural affiliation and is self-perceived. Individuals can identify with more than one ethnic group and change their affiliations over time, recognising the diverse and multicultural nature of the population. So, by turning from a very blunt “RACE” only approach, with people allocated to a single group based on skin colour (African, Coloured, Indian and White), to a cultural ethnicity system, it expands the representation of individuals’ entire ethnic identities, especially for those identifying with multiple cultural-ethnicities.


South Africa’s race system operates within a deep and inherent flaw of the skin colour system. According to a scientific study by The Pantone company and confirmed by DNA, there are identified 110 different skin tones, therefore making it impossible to classify people based on skin colour.


Pantone Skin Colour chart.


But South Africa can change from the fascist apartheid era (African, Coloured, Indian and White) reporting system to a more dynamic and fluidic multi-ethnic-cultural system. This allows all aspects of an individual’s ethnicity to be recognised.


For example, suppose someone identifies as both Pakistani and Cape Malay. In that case, they can then declare themselves as belonging to several groups, thereby representing the full diversity of the population.


Tried and Tested:


Implemented in 2021, New Zealand switched to an ethnic system that feeds detailed information into groups for reporting purposes. This hierarchy allows for a more precise and accurate representation of diverse ethnic groups, including Māori, Pacific Peoples, European, Asian, MELAA (Middle Eastern, Latin American, African), and Others.

A similar system can be introduced in South Africa; however, this may seem impractical. South Africa has shown resilience and understanding by adopting twelve official languages, speaking its official cultures of Zulu, Xhosa, Venda, Tswana, Tsonga, Swazi, Sotho, Pedi, Ndebele, Khoisan, Asian, English, and Afrikaner.


This approach acknowledges and respects the fluid and complex nature of cultural identity, moving away from rigid racial categorisations to a more inclusive and representative system and serves as an example for other nations grappling with similar racial challenges.


Developing the new system.


Creating and implementing a cultural ethnicity system will require safeguards to be in place before its implementation. These elements must be developed with great care. It has been proven repeatedly that some politicians can be influenced, bribed, and corrupted. It must, therefore, be formulated by senior Judiciary and not politicians.


During formulation, the Judiciary must be cognisant of all aspects of corruption and abuse that can come from it. They must ensure that the system does not allow apartheid and oppression to be resurrected to be affected under the auspices of righteousness and equality. Once completed, it must be communicated with the country by the Judiciary; there must be consultation, which must be recorded. Finally, there must be a referendum, and the entire country must vote on whether to pass or reject the new system because it will change the whole social and legislative landscape.


Optional Nature of Declaration, the right to declare or abstain.

Stressing that self-declaration is optional helps alleviate anxiety. Everyone should understand that not declaring their cultural ethnicity will not impact their employment status or other opportunities. It is every individual’s right to declare cultural ethnicity, which is protected under South African law. In addition, therefore, can no 3rd party decide on behalf of or assign a specific race to another individual or group of people.

• South African Constitution

• Employment Equity Act (EEA)

• Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA)

• Alteration of Sex Description and Sex Status Act

• The Freedom Charter


Voluntary Self-Declaration:

The cornerstone of an ethical approach is the voluntary self-declaration of race. This process must be free from external pressures, ensuring that individuals feel comfortable with their decision to declare or not. The emphasis here is on complete voluntariness and clear communication that there are no negative consequences for opting not to self-declare.


Legal Affidavit for Self-Declaration:

An additional consideration would be that a legal affidavit should accompany all self-declarations. This document serves as part of the formal declaration, where individuals affirm and describe in their own words their ethnicity, thereby reducing the likelihood of casual or coerced declarations.


Ethnicity Affiliation Emphasis:

Removing the focus from rigid racial categories to a more fluid understanding of cultural affiliation allows individuals to identify with multiple accepted cultural-ethnicity groups. Although standardised forms allow for ease of use and data-capturing, they also impede individuals’ rights, which must be avoided.


Local Cultural-Ethnicity.

The new system must consider travel distance as the primary determinant of compliance. Most employees are located within a 50-kilometre radius of the company, travelling daily to and from work. Thus, the compliance area must also be limited to a similar ringfenced area, requiring compliance with the local community’s cultural ethnicity. This would mean that as people migrate, they will be automatically included in the local cultural ethnicity, ensuring compliance. Currently, Limpopo excludes all coloured males from being employed, which is completely ludicrous and immoral.


Clarification of Purpose and Benefits:

Communicating the purpose and benefits of self-declaration is crucial. It’s essential to convey that the process aims to promote fair and equitable employment practices, not pigeonholing or limiting individuals.


Corruption and Exploitation:

The Judiciary must develop, implement and oversee the mechanisms to prevent coercion, undue influence and corruption, ensuring genuine and voluntary declarations. Implementing mechanisms to safeguard against coercion is vital. This could include periodic audits, anonymous feedback channels, and strict enforcement of anti-coercion policies. The best way to prevent corruptors from eroding and abusing the system is by educating people about their rights regarding self-declaration and the legal framework surrounding the Employment Equity Act. This will help mitigate fears and misconceptions, making abuse of the system complex.


Assurance of Non-Retaliation and Confidentiality:

The legislation must provide robust assurances of non-retaliation and confidentiality. It’s imperative to ensure that the information will not be used negatively against the individual and will be kept strictly confidential.


Regular Review of Self-Declaration Process:

It is crucial to regularly review and refine the self-declaration process to ensure it remains sensitive to employee concerns and aligned with ethical practices.


Use of Information:

This is by far the most critical aspect of the entire system; it must be ensured that the individuals’ information is never revealed nor available in its raw, uncensored format, as this information can be used to identify specific individuals, thus allowing individuals or groups to be targeted, oppressed, and abused.


Applying the new system to Employment Equity.


But how does the application of the ethnicity system differ from the racist system? At its core, the two systems still require the organisation to diversify. However, changing the scope and goal of Employment Equity from having 87% African, 1% White and less than 1% Indian and Coloured to a generally cultural-ethnicity diverse workforce makes much more sense.


The best way to motivate organisations is to provide genuine, tangible benefits. Offering an organisation a political promise of benefits to come means absolutely nothing and should be considered an insult rather than a benefit. Considering the current recognition, a simplistic system of diversity requirements can be enacted.


The carrot and the knobkierie.


The new legislation must not rely on a punitive but rather a reward system. Leaving money on the table for larger organisations to rapidly grow and expand by using AUTOMATIC benefits and grants available. Obviously, companies must be rigorously inspected and audited before benefits are approved. The onus is on the company to prove compliance beyond a reasonable doubt. These benefits must be available to organisations with over 500 employees and a turnover of more than R500 million turnover.


The carrot


Suppose an organisation has over 80% of all local ethnicities with a 50/50 gender split. In that case, it becomes an approved organisation and may apply for the following benefits.


Zero rate PAYE.

None of the company employees have to pay PAYE, so their monthly salaries will automatically increase when they comply and whilst they remain compliant.


The company may reduce its VAT rate by 50%.

It effectively reduces its prices to all its customers and clientele, giving it a substantial financial benefit over its competitors.


The company income tax rate was reduced to Zero.

Statistically, less than 1% of organisations will be able to comply and remain compliant, mainly due to natural attrition. Still, it provides a singular goal for organisations to focus on.


The knobkierie


However, companies found corruptly and fraudulently contravening the Act must be prosecuted. The penalties must be an absolute deterrent. Both the corruptor and the corrupted must be penalised. Thus, all directors, investors, and officials must be jailed, their assets seized, and the organisation liquidated.


It must be an absolute law. It will force investors to take a long, hard look at a company before investing and squeezing blood from a stone. It is well-known that greed is the root of all evil, and so too are greedy and naive investors the biggest culprits. Their demands force the organisation to cut corners and discriminate, all in the name of a dividend.


A word of warning


Throughout the centuries, humans have committed terrible tragedies due to ethnicity separation, apartheid being one of them. People were degraded and oppressed. Thousands were murdered because of some megalomaniac ego and greed. It created what we have today: a broken country with narcissistically corrupt politicians trying desperately to pitch the races against each other so that they can continue plundering the country. Cowardly, sending their children overseas out of harm’s way.


Another was the genocide in Rwanda, with more than a million people losing their lives. When I worked in Rwanda in 1996, the people were visibly ashamed. They refused even to mention the genocide. Their entire culture changed, and religion became central to their daily lives as they searched for answers and forgiveness. During the fighting, the murder spree was fuelled by a fascist system with corrupt politicians and extremists. Yet after the genocide, those who instigated and led it, fled, seeking asylum in other countries, leaving behind a country riddled with disfigurement, death, regret and tears.


So, we must heed the warning and constantly guard against it.




The strategies outlined offer an idea for managing a process of voluntary self-declaration that respects personal autonomy, minimises the risk of coercion, and aligns with the principles of self-identification and legal compliance.


As South Africa continues its journey towards genuine equality and inclusion, addressing these challenges head-on is a legal and moral imperative.


Let’s be completely honest: greed and financial exploitation are the only things that motivate corporations to comply, regardless of the corporate jargon and slogans they sell on social media.


It’s my opinion. Whether it’s right or wrong remains to be seen.


Stephan du Toit.


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Stephan du Toit

Stephan du Toit

Senior Advisor Employment Equity. Specialist in emergency Employment Equity and Labour compliance for organisations. Find more information on implementing employment equity in my other articles or visit our website to enroll for the next employment equity training course.

Are you having difficulty with employment equity? Please don't hesitate to contact me.

All rights reserved. No part of this text, article, and or book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or any information storage or retrieval system without permission from the copyright holder. The Author has made every effort to trace and acknowledge sources/resources/individuals. In the event that any images/information have been incorrectly attributed or credited, the Author will be pleased to rectify these omissions at the earliest opportunity. For further information please contact the author at