The adage that big business has never met a government it doesn’t like holds true in South Africa. But is this beginning to change? Recent legal action against the government by Business Unity South Africa (BUSA) suggests an encouraging shift in approach – but one which does not go far enough.

Organised business has long been acquiescent in the face of damaging government policy, preferring its seat at the table over direct confrontation with political elites. By doing so, business groups – of which there are several in South Africa – have hoped to quietly influence behind the scenes and use their “access” to gently persuade a change in course.

I have long been critical of this approach.

Going along to get along gives hostile policies the veneer of respectability and the endless merry-go-round of “stakeholder engagement” processes seldom achieve substantive changes to what the cadres had in mind.

Moreover, this model produces a corporatist compact between big business, big government, and big labour that reinforces the policy status quo. This erodes not only competition by giving bigger incumbents an edge over smaller firms but leaves ordinary taxpayers and citizens who would benefit directly from limited government out in the cold.

However, as the authority and legitimacy of the African National Congress (ANC) begins to wane, its policy stance has grown increasingly hostile towards the private sector (or, rather, it is less adept at concealing its hostility). Consequently, it is becoming difficult for big business to ignore the blatant threats to its own commercial interests.

Heading to court

BUSA’s concern is with the Employment Equity Amendment Act (EEAA), which became law in January 2025.

This draconian piece of social engineering imposes strict racial, gender, and disability quotas on firms with fifty employees or more. The targets and regulations were gazetted by the Department of Employment and Labour (DEL) in April and became operational in September. BUSA believes that the targets are irrational and arbitrary and is taking the DEL and the Employment Equity Commission to court.

In its press release of 22 September, BUSA claims that it engaged in good faith with the DEL, which simply ignored its various objections and submissions. Explaining its decision to litigate, BUSA CEO Khulekani Mathe revealed how BUSA’s representations were overlooked.

"What took place was not meaningful consultation; it was a presentation. As social partners, we cannot allow performative engagement to substitute for genuine collaboration,” Mathe said.

BUSA’s court action against the EEAA should be welcomed, for it signals a willingness to go against the grain of the ANC’s socialist and racial nationalist legislative agenda. This is a long overdue recognition of the limits of the social compacting approach and shows a readiness by business to engage in much-needed conflict with the state.

It is analogous to another hostile policy, National Health Insurance (NHI), where private healthcare players are finally taking the Department of Health to court after years of: “constructive engagement” and hundreds of submissions to Parliament which did little to stop President Cyril Ramaphosa from gleefully signing the NHI Act into law in May 2024.

Pulling its punches

However, closer scrutiny reveals that BUSA’s objections to the EEAA don’t go nearly far enough.

BUSA cites various procedural and technical concerns such as the limited consultation period offered by the DEL, a lack of clarity over the methodology used to develop the targets, insufficient sectoral analysis, a one-size-fits-all approach to various sub-sectors, as well as conflict with other compliance frameworks, such as the B-BBEE sector codes.

These are objections to the form of the EEAA rather than its substance.

In its media statement, BUSA refers to its commitment to advance: “the critical national goal of workplace equity and transformation” and stresses that it: “is not opposing the Employment Equity Amendment Act or the principle of sectoral numerical targets under Section 15A of the Act” (emphasis mine).

This is all very confusing.

Does BUSA support the goal of numerical targets or not? By conceding the point that numerical targets are acceptable in the first instance, this makes its opposition easy to refute.

Extended consultation time or more granular data on sectoral demographics won’t solve the underlying issue, which is the moral repugnance of forcing private employers to classify their workforce according to the colour of their skin or the contents of their trousers.

As Eustace Davie, President of the Free Market Foundation recently wrote, the EEAA forces private actors to do the dirty work of the government:

“Whenever the state wishes to impose controls that it dares not or cannot enforce directly, it deputises private actors… They become the agents who collect, monitor, and report on their customers, not for commercial reasons but to satisfy political ends. By such delegation, the state evades both the cost and the blame, while every citizen is subjected to intrusive scrutiny,” Davie wrote.

BUSA’s equivocal stance also opens it up to criticism from holier-than-thou transformaniacs such as the Black Management Forum (BMF).

In a vituperative response to BUSA’s: “courtward turn”, BMF easily picked apart BUSA’s objections, arguing that defects in the consultation process: “are remediable through iterative, sector-specific adjustments rather than suspending the framework.” BMF goes on to say that: “apparent misalignment with B-BBEE codes is a coordination task for regulators, not a reason to halt equity obligations.”

It's hard for BUSA to counter these arguments since it has already accepted the principle of racial engineering in the workplace. Procedural flaws and technical deficiencies can be remedied, but the principle of racial engineering will remain intact.

It reminds me of the apocryphal story of Winston Churchill, who asked a female guest at a dinner party if she would sleep with him for a million pounds.

“Yes, I would, but we would have to discuss the terms first,” the lady answers, blushing.

“Alright, would you sleep with me for five pounds,” Winston replies.

“Do you take me for a prostitute?” the indignant lady exclaims.

“Well, we’ve already established that,” Churchill quips. “Now we are just haggling about the price.”

A better approach is to stick to your principles from the outset and don’t give the government the benefit of the doubt. Of course, there is a chance that the court of law will rule against you, or you may upset some of your ‘social partners’, but you will sleep better at night knowing that you are standing up for the legitimate interests of those you represent. 

Ansara is CEO of the Free Market Foundation.