South Africa: A Progressive Step Towards Parental Leave: High Court Declares Various Provisions Of Legislation Regulating Parental Leave As Unconstitutional

The judgment indeed has far-reaching implications when it pertains to the entitlement of both maternity and paternity leave allocation under the BCEA and as read with the UIF Act. It accordingly broadens the scope of maternity leave, traditionally allocated for pregnant mothers, to other categories of parents, regardless of their gender, who otherwise require nurturing and providing care to their newborn.

In a recent ground-breaking ruling,¹ the High Court made an order declaring provisions of the Basic Conditions of Employment Act 75 of 1995 ("BCEA") relating to maternity leave, parental leave, adoption leave and commissioning parental leave, as well as the corresponding provisions in the Unemployment Insurance Fund Act 63 of 2007 ("UIF Act"), as unconstitutional.

The order serves as a progressive step to ensuring that different categories of parents are entitled to the same parental leave benefits and that a gender equal approach to parental leave is adopted.

Background

Mr and Mrs Van Wyk, as the First and Second Applicants ("Van Wyks"), brought an application to declare sections 25, 25A, 25B and 25C of the BCEA, as well as the corresponding provisions in the UIF Act unconstitutional and invalid to the extent that it unfairly discriminated against categories of parents namely; birth mother and father, adoptive parents and parents of a child born through surrogacy, in relation to the duration of leave entitlements. The couple had decided that Mr Van Wyk would be the primary caregiver during the early stages of their child's development so that Mrs Van Wyk could return to trade in their business.

On the wording of section 25 of the BCEA, Mrs Van Wyk would be entitled to 4 months paid maternity leave while, Mr Van Wyk would be ineligible for more than 10 days' paternity leave, which would be unpaid in terms of the UIF Act. As a result, subsequent to an arrangement with his employer, Mr Van Wyk took extended leave, partly unpaid.

The Van Wyks suggested that both parents should share the 4 months leave while the Gender Commission and Sonke Gender Justice as the Third and Fourth Applicants suggested that both parents each have 4 months parental leave to run contemporaneously. The Minister of Labour, as the Respondent, provided no evidence in support of the arguments made in their affidavit.

The Court's evaluation

The reasoning employed by the High Court was based on the main premise that the policy choices inherent in the BCEA are aimed at addressing not only a birth mother's experience of pregnancy, child-birth and her physiological recovery period, but is also aimed at the responsibilities of nurturing the child, which could be undertaken by either parent.² Following this premise, the court found that there was no compelling reason why the birth mother should be "deemed and doomed to be the principal caregiver" and that the "burden of childcare should be equally shared between both parents."³

The limited duration of leave afforded to fathers in comparison to birth mothers impairs fathers' rights to dignity as it relegates the role and responsibility of fathers to the sidelines. Furthermore, the court found that it was irrational to allocate 10 weeks' adoption and commissioning parental leave rather than four months given the BCEA's focus on child nurturing.⁴

The Outcome

The court declared the relevant provisions of the BCEA and the UIF Act as unconstitutional and invalid to the extent that it unfairly discriminated between categories of parents, as well as between birth mothers and fathers. It was accordingly inconsistent with sections 9 and 10 of the Constitution.

The declaration of invalidity is suspended for two years to allow Parliament to remedy the defects. In the interim, both parents will be entitled to share their 4 consecutive months' parental leave allocation.

Conclusion

The judgment indeed has far-reaching implications when it pertains to the entitlement of both maternity and paternity leave allocation under the BCEA and as read with the UIF Act. It accordingly broadens the scope of maternity leave, traditionally allocated for pregnant mothers, to other categories of parents, regardless of their gender, who otherwise require nurturing and providing care to their newborn.

This article was authored by partner Venolan Naidoo, associate Catherine Hendriks and candidate attorney Ashishaa Kasipersad.

Footnotes

1. Van Wyk and Others v Minister of Employment and Labour ZAGPJHC 1213 (25 October 2023).

2. Ibid at para 18.

3. Supra note 1 at para 27.

4. Supra note 1 at para 19.

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