If your recruiter never sees the rejected names, the algorithm is the decision-maker
Under Section 71 of POPIA, the deselected candidates are the ones whose rights have been activated, and most HR workflows do not touch them.
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Most South African HR directors have a confident answer to the question of whether their hiring stack uses artificial intelligence to screen candidates. The answer is yes, and the second half of the answer is that a human reviewer signs off on every rejection, which they understand to mean the Employment Equity Act (EEA) and POPIA are satisfied. Both halves are usually true. Both halves are usually irrelevant. The applicants whose statutory rights the law protects are not the ones the recruiter signed off on. They are the ones the system removed before the recruiter ever opened the shortlist. If the human in the loop reviews only the survivors, there is no human in the loop for the deselected, and under South African law the deselected are the case.
CONTEXT AND BACKGROUND
Section 71 of the Protection of Personal Information Act prohibits decisions that carry legal consequences for a person, or substantially affect them, when the decision is based solely on automated processing used to profile that person. A rejected applicant has a statutory right to make representations, to a human review of the decision, and to information about the logic the system used. The Employment Equity Act sits on top of that, with Section 11 shifting the burden of proof to the employer the moment discrimination is alleged on a listed ground. The protection moves with the applicant, not with the file.
INSIGHT AND ANALYSIS
Most algorithmic hiring stacks run three layers of filtering before a recruiter opens a candidate file. A keyword screen removes anyone whose CV does not match the vocabulary of the job description. A ranking model orders the remainder on a score most HR directors cannot explain. A shortlist of ten to twenty names reaches the recruiter, who signs off. The signature is real and legally close to meaningless, because it covers only the applicants the system kept. The applicants the system did not keep received no human review at all. Under Section 71, every one of them has a statutory remedy.
Pinsent Masons’ May 2026 analysis of AI recruitment in South Africa is explicit on this point. A tool trained on foreign or historical data can embed indirect discrimination against local candidates by language, name convention or CV format, and a human later confirming the model’s shortlist does not transfer liability away from the employer. Cliffe Dekker Hofmeyr adds that a designated employer under the EEA must analyse barriers for designated groups, and may be judged by whether its hiring tools reproduce them.
The US precedent is already live. In May 2025, a federal court certified Mobley v Workday as a collective action over age discrimination in AI hiring, covering applicants aged forty and over rejected since 2020. The design feature at the centre of the case is the one most South African employers rely on daily: an automated ranking that the human reviewer treated as the shortlist.
IMPLICATIONS
A defensible human in the loop looks nothing like a signature at the bottom of a shortlist. It reviews a stratified sample of deselected candidates on a schedule the governance committee approves, documents the thresholds the system uses and the overrides the human issues, and keeps an audit trail that will survive a Labour Court subpoena. The system becomes a filter the human has read into evidence, not a decision the human endorsed in blind. IT-Online’s September 2026 analysis of EEA compliance in AI-driven workplaces reaches the same conclusion from the labour side: without a documented review of the applicants the system removed, the Employment Equity defence is a story, not a record.
The commercial implication is that the recruitment vendor contract has to carry the audit, bias testing and localisation obligations the HR director will be asked for in a referral. A contract that does not grant that access describes a vendor not fit for South African use.
CLOSING TAKEAWAY
The question the Labour Court will ask is not whether a human signed off on the hiring. It is whether a human made the hiring decision. If the only names the recruiter read were the ones the system approved, the system was the decision-maker, and under POPIA Section 71 the applicant has a statutory remedy before the employment case even begins. South African HR directors have been told for two years that human in the loop solves the AI risk. It does, but only when the human is in the loop that matters. The one holding the names the system removed.
Author Bio
Johan Steyn is a prominent AI thought leader, speaker, and author with a deep understanding of artificial intelligence’s impact on business and society. He is passionate about ethical AI development and its role in shaping a better future. Find out more about Johan’s work at https://www.aiforbusiness.net
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