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In a groundbreaking judgement handed down on 25 October 2023, the Gauteng High Court found that the existing parental leave provisions are unconstitutional as they unfairly discriminate between different categories of parents. So, what should employers do?

When the Basic Conditions of Employment Act of 1997 (BCEA) came into effect, biological mothers became entitled to four months’ unpaid maternity leave and biological fathers to three paid days’ paternity leave.

Parental law changes in 2020

New forms of ‘parental leave’ were introduced as from 1 January 2020. Biological fathers became entitled to 10 consecutive days’ unpaid parental leave. In the case of adoptive parents, one adoptive parent became entitled to 10 consecutive weeks’ adoption leave and the other to 10 consecutive days’ normal parental leave. It has been up to the adoptive parents to decide who takes adoption leave and who takes normal parental leave. Similar entitlements apply to commission parents in the case of surrogate motherhood.

Although maternity and other forms of parental leave are unpaid, there is the right to claim benefits from the UIF.

Unconstitutional and invalid

While the 2020 amendments to the BCEA brought about improvements to parental rights, these seem to have been inadequate. In case of Van Wyk v Minister of Employment and Labour and others (handed down on 25 October 2023), the Gauteng High Court declared that all the current parental law provisions of the Basic Conditions of Employment Act no 75 of 1997 (BCEA), as well as the corresponding provisions of the Unemployment Insurance Fund Act of 2001 (UIF Act), to be invalid.

According to Judge Roland Sutherland the existing provisions are unconstitutional as they unfairly discriminate between mothers and fathers. They also unfairly discriminate between one set of parents and another on the basis of whether their children were born of the mother, were conceived by surrogacy, or were adopted.

The court suspended the declaration of invalidity for two years to allow Parliament to ‘cure the defects’.

Interim order

The Court saw no reason to allow the unfair discrimination to continue until Parliament eventually gets around to changing the legislation. The Court therefore made an interim order that it considered to be reasonable and fair.

The essence of the interim order is that four consecutive months’ parental leave should be available to parents (mothers, fathers, adoptive parents, commissioning parents). The parents may decide between themselves how they would use the four-month period of leave available to them: One or other parent may take the whole of the period, or they may take turns at taking the leave. Both employers must be notified prior to the date of birth in writing of the election. If a shared arrangement is chosen, the period or periods to be taken by each of the parents must be stipulated.

Judge’s reasoning

In summary, the judgement appears to be premised on the recognition of the importance of the functions of child nurturing rather than childbirth and that, in that context, there is no basis for the distinction between the different roles that parents play.

While one can speculate about the practical implications of introducing these changes, the reasoning of Judge Sutherland makes for interesting reading.

To see the full judgement (click here)

What should employers do?

The interim order has immediate effect. Does this mean that all employers in South Africa have to comply with the interim order?

The answer is that the final word has not been spoken.

The interim provisions set out in the High Court judgement will only have general application when the Constitutional Court confirms the judgement. The successful parties in the High Court will therefore need to apply to the Constitutional Court for its confirmation. Until then, the judgement is only binding on the parties to that dispute.

The Minister and/or other respondents may also appeal the judgement. Whether there is an appeal will crystallize in the next few weeks. If so, the High Court judgement will be suspended pending the appeal and the existing provisions of the BCEA will continue to apply until the appeal is finalized.

It cannot be said with certainty what the end result will be, but we can expect to see a more equal distribution of parental benefits in due course. While there is no need for urgency, employers should start giving thought to how the expected changes may impact their particular working environment and start planning accordingly.

We’ll keep our subscribers informed about any further developments.

Jan Truter for

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