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“Maternity” Leave for all parents to become a reality?

In a recent groundbreaking case to extend equal parental leave rights and Unemployment Insurance Fund benefits to all categories of parents of a newborn child, the constitutionality of sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act (BCEA) were challenged and considered by the Gauteng High Court in the matter of Werner Van Wyk & 3 others v the Minister of Employment and Labour (case number 2022-017842).

Dissatisfied with current parental leave provisions under which only birth-mother employees are entitled to 4 months’ maternity leave after giving birth, the Van Wyks along with Sonke Gender Justice and the Commission for Gender Equality, filed a lawsuit challenging the constitutionality of the parental leave provisions in the Basic Conditions of Employment Act and the Unemployment Insurance Act.

Mr Van Wyk is a salaried employee whilst Mrs Van Wyk is self-employed. Without Mrs Van Wyk’s dedicated presence at her company, the business faced potential collapse, leading the couple to prioritise her swift return to work after giving birth. The intention was that Mr Van Wyk act as the primary caregiver to their new born child during the first four months of the child’s life and Mrs Van Wyk return to work as soon as possible. This was made impossible since Mr Van Wyk’s right to parental leave is restricted to ten consecutive days in accordance with the parental leave entitlement as per the BCEA.

The central issues considered by the court were the following:

  • Whether the existing conditions of the BCEA which provide for four months maternity leave to the birth-mother of the newborn child unfairly discriminate against the other parent by failing to provide parents with the option of who should qualify for the four consecutive months;
  • Whether existing conditions of the BCEA which differentiate between birth-mothers, fathers, surrogate parents, and those who adopted children in respect of the period allowed for leave, constitute unfair discrimination, and thereby violate their constitutional rights under sections 9 and 10 of the Constitution.

In simple terms, the claims made and relief which was sought by the applicants, can be described as follows[1]:

  • Section 25(1) of the BCEA is unconstitutional because no valid grounds exist to distinguish one parent-employee from another. Thus, both parents should be entitled to parental leave in equal measure and the failure to provide so is unfair discrimination and violates the dignity of all parents.
  • The differentiation in the duration of prescribed leave available to each of the three classes of parents, i.e., a birth mother and father; adoptive parents and parents of a child born through surrogacy, constitutes unfair discrimination and violates the dignity of all parents. It was contended that all categories should enjoy an equal duration of leave.
  • The notion that the prescribed leave is available to adoptive parents only in respect of a child less than two years of age was challenged as irrational and unfair discrimination.

The court found that the Van Wyk family model was not catered for by the BCEA and no sound reason existed for it not to do so. The Van Wyk family dynamic is wholly consistent with norms that the Constitution exalts. Considering the Van Wyk family dynamics, the court declared Sections 25 and 25A to 25C of the BCEA to be inconsistent with sections 9 and 10 of the Constitution, the norms outlined in the Children’s Act, and related sections of the Unemployment Insurance Act. The court recognised the essential role both parents play in caring for the child during the early months of life and concluded that the existing law unreasonably differentiated between birthing mothers and other parents[2].

The court’s interim order afforded the Van Wyks four consecutive months’ parental leave, collectively. In other words, the couple shall share four consecutive months of parental leave with access to Unemployment Insurance Fund benefits between the two of them as they elect. However, the court’s ruling currently has no final implications for the rest of South African parents or amendments to be made to the Basic Conditions of Employment Act or the Unemployment Insurance Act. The unconstitutionality hereof must still be confirmed by the Constitutional Court, whereafter, if confirmed, Parliament will be tasked with rectifying the offending provisions.



Article written by Etienne Rossouw

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