Equality for “all parents of whatever stripe”

27 Oct 2023

In the groundbreaking judgment of Van Wyk v Minister of Labour, parental and maternity leave, a subject once bound by traditional gender roles and perspectives, recently underwent rigorous scrutiny in the High Court. The contentious provisions of the Basic Conditions of Employment Act (BCEA) emerged as the epicentre of this debate, leading to a landmark decision that scrutinised their alignment with the Constitution. Here, we dive into the reasons provided by the Court in declaring specific BCEA provisions inconsistent with the South African Constitution, its implications for employers, and the recommended steps for compliance.

Brief facts of the case:

The applicants, Werner and Ika Van Wyk, presented a contemporary family dynamic at odds with the existing BCEA and UIF legislation. With Mrs Van Wyk operating her own business and Mr Van Wyk in salaried employment, the couple sought for Mr Van Wyk to assume the role of primary caregiver for their newborn child so that she could ensure that her business continued operating. However, Mr van Wyk 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 focal point of this legal challenge revolved around certain provisions of the BCEA, which delineate the criteria for parental leave, and their corresponding UIF Act provisions, being unconstitutional. The Van Wyks, together with the other applicants contended, among others, that this differentiation, based on (i) the distinction between one parent-employee from another, (ii) the difference in the duration of the prescribed leave available to each of the three classes of parents i.e., birth mother and father, adoptive parents and parents of a child born through surrogacy, amounts to unfair discrimination as it contravenes the principles of equality (section 9) and dignity (section10) as enshrined in the Constitution.

The High Court agreed.

Analysis and findings of the High Court:

In its judgment, the Court found that the aforementioned provisions were also inconsistent with certain provisions of the Childrens’ Act. It held that, for the following reasons discussed below, the distinctions made in the BCEA are at odds with (i) the object of sections 9 and 10 of the Constitution and (ii) with the norms inherent in the Childrens’ Act:

First, the Court questioned the rationale behind the distinction between the 16-week period of leave afforded to birthmothers and 10-week period of leave afforded to commissioning/adoptive ‘mothers’. It held that there is no compelling rationale and no legitimate governmental objective. From the Court’s perspective, the physical act of childbirth should not be the sole determinant of leave duration. Further, in finding that the discrimination is unfair, the Court stated that mothers in all three categories, being (i) natural birth arrangement, (ii) adoption of a child younger than two years and (iii) a surrogacy arrangement, ought to be entitled to the same period of leave for the purposes of child nurture in order to avoid inequality.

Second, the BCEA’s provision granting fathers a mere 10 days of paternity leave was another focal point. The Court opined that such a limited duration resonates with outdated beliefs, implying a father’s role in early parenting as secondary or even marginal. This perspective, as stated the Court, directly affronts the Constitutional norms, especially as it pertains to a father’s dignity. Modern parenting, underscored by shared responsibilities, makes it paramount for fathers to be actively involved from the outset. Thus, fathers who elect to partake actively in early-child rearing not only contribute to their well-being and that of the child and mother but also challenge traditional norms.

Moreover, the Court held that determining the mother as the default primary caregiver without giving parents the choice in the matter is a legislative overstep. This not only strips fathers of their rightful role but also burdens mothers with a predetermined, potentially singular, responsibility. Such an imposition, in the eyes of the Court, compromised the dignity of both parents, as it deprived them of the autonomy to decide their parenting dynamics.

Although the notion that the prescribed leave available to adoptive parents only in respect of a child of less than two years of age was also challenged by the applicants as irrational and unfair, the Court held that the two-year age-cap for adopted children is not out of kilter with the scope of the intended benefit and does not trigger a cogent complaint of unfair discrimination.

In light of the above, the Court held that sections 25 (maternity leave), 25A (parental leave), 25B (adoption leave) and 25C (commissioning parental leave) unfairly discriminate between mothers and fathers, between birthmothers and mothers through surrogacy and adoption in relation to the amount of parental leave afforded to them. Consequently, the Court concluded that the only appropriate and immediate means by which to remove the inequality, is that “all parents of whatever stripe, enjoy four consecutive months’ parental leave, collectively. In other words, each pair of parents of a qualifying child shall share the four months leave as they elect.” The effect of this decision 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.

The declaration of constitutional invalidity was suspended for two years to afford Parliament time to cure the defects in these provisions, with interim relief that entitles all parents to a collective period of at least four months of parental leave.

Conclusion and recommended steps for compliance:

By spotlighting the inconsistencies with the Constitution, the Court has ushered in a clarion call for change, emphasising equal recognition, dignity, and choice in parental roles. As the legal landscape shifts, it beckons employers to re-evaluate and adapt to a more inclusive, equitable, and modern understanding of parenthood. In doing so, employers will be required to review and amend their leave policies in relation to parental / maternity leave.  In doing so, employers will have to adopt a more flexible approach which affords parents the autonomy to decide on their leave division.

However, while the empowerment of parents to decide their leave distribution is commendable, it undeniably introduces operational intricacies for employers. In amending respective leave policies, employers will have to consider ensuring that the principles of proactive planning, open communication, and reasonable flexibility is incorporated into the amended provisions. In doing so, employers will have to strike a balance between upholding parental rights and ensuring organisational efficiency.

Article sourced from Eversheds Sutherland.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Sandro Milo

Sandro Milo is a partner at Eversheds Sutherland's litigation group. He specialises in all aspects of litigation and arbitration, employment, and black economic empowerment law. Sandro is also an expert... Read more about Sandro Milo

Kyle Lamb

Kyle-Terry Lamb is an associate at Eversheds Sutherland's employment law department based at the Melrose Arch office in Johannesburg. He has gained experience in various aspects of employment law and... Read more about Kyle Lamb

Dylan Bouchier

Dylan Bouchier is an associate in our Employment Law Department, specialising in both litigious and non-litigious aspects of individual and collective labour law. Dylan graduated with a BA in law... Read more about Dylan Bouchier


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