On 25 October 2023, the Gauteng Division of the High Court of South Africa in the matter between Van Wyk & Others v The Minister of Employment and Labour delivered a judgment which may, for the interim, abolish maternity leave as provided for in the Basic Conditions of Employment Act 75 of 1997 (BCEA). The judgment follows an application where it was alleged that sections 25, 25A, 25B, and 25C of the BCEA are unconstitutional. These sections deal with maternity leave, parental leave, adoption leave and commissioning parental leave.

In the judgment, the Court held that the declaratory orders sought by the applicants are well founded as the BCEA provisions offend sections 9 and 10 of the Constitution of the Republic of South Africa.

In reaching its finding, and having found that there is differentiation among categories of parenthood, one of the main considerations in the judgment is about whether the provisions of the BCEA relate to a birth mother’s physiological needs. The Court found that the policy choices evident in the BCEA are in respect of child nurture and not merely a birth mother’s experience of pregnancy and childbirth and her need for a physiological recovery period. As such, both parents are able and should be entitled to provide comprehensive nurture to their child. Therefore, the distinctions in the BCEA are at odds with the objectives of section 9 and 10 of the Constitution as well as the norms inherent in the Children’s Act 38 of 2005, which emphasise the protection and nurturing of children by providing them with, among others, a safe and healthy environment with positive support.

Having found that the provisions in the BCEA relate to child nurturing rather than the physiological needs of a birth mother, the Court further found that there is no compelling rationale as to why provision is made for 10 weeks’ adoption and commissioning parental leave as opposed to 16 weeks (four months). Further, limiting a father’s entitlement to parental leave to 10 days impairs a father’s dignity as this is a mindset that regards the father’s involvement in early parenting as marginal. 

Accordingly, the Court declared the provisions of sections 25, 25A to 25C of the BCEA (and the corresponding provisions of the Unemployment Insurance Act 63 of 2001 (UIA)) to be invalid by reason of inconsistency with sections 9 and 10 of the Constitution as they unfairly discriminate between mothers and fathers, and one set of parents and another, on the basis of whether their children were born of the mother or were conceived by surrogacy or were adopted. This declaration has, however, been suspended for two years and Parliament has been afforded an opportunity to remedy the defects.

Having declared the sections of the BCEA (and UIA) invalid, the Court has provided interim measures while Parliament remedies the defects. In summary, and subject to confirmation by the Constitutional Court as discussed below, the provisions for maternity leave will no longer apply, and all parents will be entitled to a minimum of four consecutive months’ parental leave irrespective of gender or the basis upon which a child was born or adopted. Where there is a pair of parents, the entitlement to four months’ parental leave will apply collectively in respect of both and they have an election as to how they will apportion the entitlement between them.

In terms of constitutional law, this declaration of invalidity has no force and effect unless and until it is confirmed by the Constitutional Court. Assuming the Constitutional Court confirms the order, employers will then need to amend their 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. Given that the provisions provide for minimum requirements, nothing prevents employers from affording their employees parental leave that is more favourable.

Whilst this is a very progressive judgment, it is expected that there may be disagreement with some of the findings. As an example, pregnant women in committed relationships were previously entitled to four consecutive months’ maternity leave. This has now been done away with under the interim measures and such pregnant women will now be required to share their four-month leave allocation with the father of the child should the father wish to take parental leave. If a shared arrangement is chosen by the parents, they are required to inform both employers in writing of this arrangement. Whether this will work in practice remains to be seen. Hopefully Parliament will establish legislation that will cure the defects in the current BCEA provisions (as may be confirmed by the Constitutional Court) without taking away the benefits that resulted from maternity leave. 

Written by Sibusiso Dube, Partner, Bowmans