On 25 October 2022, the Johannesburg High Court (per Sutherland DJP) handed down judgment in the matter of Van Wyk and others v the Minister of Employment and Labour. Norton Rose Fulbright SA Inc’s Impact Litigation team acted on behalf of the Commission for Gender Equality, the fourth applicant.

The matter concerned the question as to whether the provisions of the Basic Conditions of Employment Act, 1997 regulating parental leave, unfairly discriminate against various types of parent; are contrary to the interests of the child; and impair the dignity of parents and their children.

In its judgment, the Court concluded that the provisions of the BCEA regulating parental leave do offend against sections 9 and 10 of the Constitution as they unfairly discriminate between mothers and fathers; and unfairly discriminate between parents depending on whether their child was born of the mother; conceived by surrogacy; or adopted. Accordingly, sections 25, 25A, 25B and 25C of the BCEA (together with the corresponding sections of the Unemployment Insurance Fund Act, 2001 which provide for parental leave benefits) were declared to be unconstitutional and invalid.

The declaration of constitutional invalidity was suspended for two years, such that remedial legislation could be enacted by Parliament, pending which the offending provisions of the BCEA were amended to provide, in the interim, for a new regime whereby:

• Parents in a natural birth arrangement can elect which parent would take the whole four-month parental leave period, or could freely allocate that four-month period between them; and
• Parents adopting a child younger than two years and parents in a commissioning parent arrangement would be entitled to the same leave regime as that now applicable to parents to a natural birth.

The effect of the interim provision is to allow all parents (save for those adopting a child older than two years) to benefit equally from parental leave provisions and the associated UIF benefits. This will alleviate the plight of, particularly, birth mothers who were previously obliged to assume the role of primary care giver, thereby sacrificing employment and economic opportunities. The interim relief also allows all parents greater flexibility in how they choose to care for their children.

Although the CGE had asked the Court to extend parental leave provisions to adoptions involving children older than two, the Court found that this went too far and that the discrimination against such adopted children and their parents was not unfair.

The CGE had also asked the Court to remedy the discrimination between different parents by providing four months leave for both parents. The Courtfound that given the wide range of remedies available to Parliament, the most appropriate remedy was not to grant equal four-months leave to both parents, but to allow them the choice of how they chose to arrange their parental leave entitlement.

The judgment is to be welcomed in that it advances gender equality and recognises the importance of adoption and surrogacy arrangements in accordance with international best practice.

Submitted by Norton Rose Fulbright