“Current Maternity provisions are unconstitutional” says high court

In January 2020, the Basic Conditions of Employment Act (BCEA) was changed to include Parental leave, Adoption Leave and Commissioning Leave. This was a big step for South Africa as it officially recognised and allowed non-childbearing parents to take parental leave and apply for parental leave benefits through the UIF.

Prior to this amendment, the only form of leave recognised in the BCEA for the non-childbearing parent was 3 days Family Responsibility leave when the employee’s child was born. The changes in 2020 allowed the parent who is not the child-bearing partner, or the secondary parent in the case of adoption or surrogacy, to qualify for 10 days parental leave. In the case of adoption and commissioning parental leave, a 10-week period of absence would be afforded to the primary parent.

On 25 October 2023, the South Gauteng High Court handed down a judgement (Van Wyk and Others v Minister of Employment and Labour (2022-017842) ZAGPJHC 1213) that will push South Africa in a direction of further equality and fairness amongst genders and parents, but with practical implications that may have far reaching effects.

This case arose when van Wyk applied to his employer for four months of leave to care for his newborn child after his wife returned to operating her two businesses following the birth of their child. The request was declined.

This High Court Judgement declared that sections 25, 25A, 25B and 25C of the BCEA, and the corresponding provisions of the Unemployment Insurance Fund Act (UIF Act), sections 24, 26A, 27, 29A are invalid due to inconsistencies with sections 9 and 10 of the Constitution.

It is quoted in the judgement that “the provisions:

• Unfairly discriminate between mothers and fathers;
• 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; or
  iii. Were adopted”
  

The Judge indicated that the legislature has two years to make the necessary changes to the legislation, if the Constitutional Court agrees with this judgement. Bowmans has said “In terms of constitutional law, this declaration of invalidity has no force and effect unless and until it is confirmed by the Constitutional Court.”

The Minister may also appeal the judgement and in this regard request that the order of invalidity be suspended pending the finalisation of the appeal.

Assuming the Constitutional Court confirms the order, employers in South Africa will have to bring their policies in line with the interim measures set out by the court until such time as the government amends the legislation, ensuring it is fair and equitable and while also ensuring the practical implications of this change are managed.

The Interim Measures set out by the court are as follows:

“An employee who is a single parent is entitled, and employees who are a pair of parents, are collectively entitled, to at least four months’ consecutive parental leave, which in the case of a pair of parents, be taken in accordance with their election, as follows:

• One or the other parent shall take the whole of the period; or
• Each parent shall take turns at taking the leave;
• Both employers must be notified prior to the date of birth in writing of the election and if a shared arrangement is chosen, the period or periods to be taken by each of the parents must be stipulated.”

The pregnant mother will still be entitled to take maternity / parental leave from 4 weeks prior to the birth and may generally not return to work for 6 weeks after the birth of the child.

Does this mean that employers should immediately change their policies? As the judgement still must be tested in the Constitutional Court, we recommend that no action be taken at present other than to be aware that changes are coming.

We will keep you updated as this matter unfolds, but feel free to contact us should you have any questions.

Written by Andrea Grant-Smith.