On 25 October 2023, Sutherland DJP of the Gauteng High Court handed down judgement declaring that the provisions of sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act no 75 of 1997 (“BCEA”) relating to maternity, parental, adoption and commissioning parental leave as well as the corresponding provisions of the Unemployment Insurance Act 63 of 2001 (“UIF”), sections 24, 26A, 27 and 29A, are invalid for falling foul of the rights to equality and dignity enshrined in terms of sections 9 and 10 of the Constitution of the Republic of South Africa, 1996 (“Constitution”), to the extent that the provisions: -

“(a) Unfairly discriminate between mothers and fathers;

(b) Unfairly discriminate between one set of parents and another on the basis of whether their children-

i. Were born of the mother

ii. Were conceived by surrogacy

iii. Were adopted.”

Background

The application was brought by Werner van Wyk (“Werner”) and his spouse, Ika van Wyk (“Ika”). During Ika’s pregnancy, Werner applied for the 4-month maternity leave benefit from his employer. The employer refused on the basis that its maternity leave policy did not make provision for persons other than the birthing mother to receive the maternity leave benefit. With Ika in charge of her own business and Werner in salaried employment, the couple sought for Werner to assume the role of primary caregiver for their newborn child so that Ika could ensure her business continued to operate. The issue arose when Werner was only legally entitled to a mere 10 days of paternity leave, necessitating an ad hoc arrangement for extended, partly unpaid leave, albeit without the entitlement of UIF benefits.  

The van Wyk’s not so unique situation, lay bare the need, for which many have advocated, the reform of labor laws in South Africa, so as to reflect a gender egalitarian approach to parental leave benefits.

The issue before the Court

Whether the provisions of sections 25, 25A, 25B and 25C of the BCEA and the corresponding provisions of the UIF, namely sections 24, 26A, 27, 29A, were invalid due to inconsistency with sections 9 and 10 of the Constitution.

The court found that the existing wording of the BCEA does not recognize a dynamic in terms of which both parents are, in equal measure, committed to the nurturing of their child. thus, found no compelling reason to distinguish between a birthing parent and non-birthing parent (including parents who have adopted or commissioned a surrogacy) in respect of the nurturing care that a newborn baby requires for its safety and to flourish. Interestingly, the court found further that the assumption that the birthing parent is and should always be the primary care giver does not take cognizance of the different parental modalities and is not aligned with the constitutional ethos of gender equality and dignity afforded to all, including parents.

The road ahead for employers

Contrary to the general consensus and media speculation, the Court has not automatically invalidated the provisions of the BCEA regarding maternity and parental leave. In terms of constitutional law, this declaration of invalidity has no force and effect unless and until it is confirmed by the Constitutional Court

In terms of the order, Parliament has been given two years to remedy the offending legislation as far as it is inconsistent with the provisions of the Constitution. In the meantime, there are interim provisions in terms of which:

·             Parents in natural birth agreements can decide in and amongst themselves who takes the allotted four-month parental leave period, or this period can be freely allocated between them;

·             Parents who adopt a child younger than two years are no entitled to the same leave regime as parents to a natural birth;

·             Parents in a commissioning parent arrangement are now entitled to the same leave regime as parents to a natural birth; and

·             All the above benefit equally from parental leave provisions and UIF benefits.

Assuming the Constitutional Court confirms the order, employers will be required to review and amend their leave policies to ensure that provision is made for parental leave in line with the interim provisions that have been ordered by the Court, pending the relevant amendments by the legislature.

Click the link below to access the full judgement.

https://www.saflii.org/za/cases/ZAGPJHC/2023/1213.html

By Alexi Rosenzweig, candidate attorney working in the employment law practice area at HJW Attorneys, a boutique law firm based in Fourways, Johannesburg.

This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.