Current provisions of the BCEA governing maternity leave unfairly discriminating against natural mothers and fathers and, surrogate and adoptive parents

February 1st, 2025
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Van Wyk and Others v Minister of Employment and Labour and Others (Centre for Human Rights, University of Pretoria and Others as Amici Curiae) [2024] 1 BLLR 93 (GJ); (2024) 45 ILJ 194 (GJ); 2024 (1) SA 545 (GJ)

On 1 November 2024, the Constitutional Court (CC) heard a confirmation application concerning orders of constitutional invalidity granted by the Gauteng Local Division of the High Court in Johannesburg on 25 October 2023. The orders were in relation to ss 25, 25A, 25B and 25C of the Basic Conditions of Employment Act 75 of 1997 (BCEA) and the corresponding ss 24, 26A, 27 and 29A of the Unemployment Insurance Act 63 of 2001. In granting the appropriate interim relief, the High Court suspended the declaration of invalidity for two years and ordered a reading-in to the relevant parts of the impugned provisions.

In this article, I analyse the findings of the High Court and its interim order. In addition, I analyse the confirmation proceedings held at the CC with a particular focus on the issues that were raised by the CC judges while interacting with counsel for the applicants. This is done with the aim of highlighting some of the complexities the CC judges will have to grapple with while considering the matter, especially the issue surrounding the interim order.

Litigation in the High Court

There matter concerned a Mr and Mrs Van Wyk, a married couple and parents of a child. Mr Van Wyk was a salaried employee, while Mrs Van Wyk ran her own business. After the birth of their child, the Van Wyk’s preferred for Mrs Van Wyk to return to trading as her continued absence meant possible collapse for the business. Mr Van Wyk was to be the primary caregiver. However, this was not possible as ss 25A(1) only granted Mr Wan Vyk a minimum of 10 days paid leave as opposed to the four consecutive months Mrs Van Wyk was entitled to. Aggrieved by this position, the Van Wyks approached the High Court as first and second applicant. The third and fourth applicants were Sonke Gender Justice (SGJ) whose role is public advocacy in support of gender equality, and the Commission for Gender Equality (CGE)), a Chapter 9 institution. The sole respondent was the Minister of Employment and Labour. The applicants based their claims of constitutional invalidity on the following two grounds. The first ground was that ss 25, 25A, 25B and 25C of the (BCEA), and the corresponding provisions of the (Unemployment Insurance Act), ss 24, 26A, 27, 29A, are invalid to the extent that they unfairly discriminate between mothers and fathers (gender). The second ground was to the effect that the abovementioned provisions likewise unfairly discriminate between one set of parents, and another based on whether their children were born of the mother, were conceived by surrogacy or were adopted. The particular constitutional rights, which the applicants claimed were violated by the offending provisions, was the right to equality and the right to dignity which are provided for in ss 9 and 10 of the Constitution.

In considering the challenge of unconstitutionality on the basis of unfair discrimination, the High Court employed the well-known test set out in Harksen v Lane and Others 1998 (1) SA 300 (CC). The court found that there was indeed differentiation on grounds of gender and between categories of parenthood, and that such differentiation amounted to unfair discrimination. In the court’s view, there was no justification in granting a birth mother a minimum of four consecutive months’ leave for the purpose of nurturing a child while a father was entitled to a mere ten days. The court held that this position was informed by long standing cultural norms based on the patriarchal features of South African society. Furthermore, the court held that there was no justification in granting adoptive and commissioning parents only ten weeks parental leave for purposes of nurturing a child while a birth mother was entitled to four months.

In order to come to the immediate rescue of the applicants, an interim reading-in was ordered, the relevant part of which reads:

‘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 months’ parental leave, which, in the case of a pair of parents, be taken in accordance with their election, as follows:

(a) One or other parent shall take the whole of the period, or

(b) Each parent shall take turns at taking the leave.

(c) 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.’

Confirmation proceedings at the Constitutional Court

During the confirmation proceedings, the CC judges raised a number of contentious issues which were mainly related to the interim relief. These issues can be grouped under three categories. Those being practicality, fiscal pressure and the separation of powers.

Regarding practicality, the CC noted that the High Court’s order effectively means that both parents would be entitled to share the four months of parental leave as they wish. The first issue with this is that such an arrangement lessens the amount of leave available between the two parents as the ten days previously given to fathers will now be obsolete, meaning that instead of a collective parental leave allowance of four months and ten days, the interim order provides only for a collective four months. Also, how does the court deal with the six-week physiological leave provided to birth mothers in s 25(3)? Will it be part of the four months shared leave or will it be in addition to it? Another practical issue relates to coordination. How would the sharing of leave between two parents who work for different employers be coordinated? Furthermore, how is the court to deal with a scenario where there is no agreement between the parents on how the four months are to be shared?

With regard to fiscal pressure, the CC justices raised an issue around the potential impact an interim order would have on government finances. Allocating four months parental leave to all parents, including adoptive and commissioning parents, would increase the claims for parental and maternity leave under the Unemployment Insurance Act. Another scenario is where the six weeks physiological leave provided to birth mothers in s 25(3) of the BCEA is made to be additional to the four months of parental leave. These issues have potential to cause chaos within the system.

With regard to separation of powers, the court raised the question of whether in light of all the different practical components discussed above, and their policy-centric nature, would the CC not be overstepping its boundaries by either confirming the High Court’s interim order or providing one of its own? Would it not be appropriate, in this matter, for the court to simply confirm the declaration of invalidity and thereafter suspend the declaration in order to allow the appropriate organ of state (Parliament) to deal with the above-mentioned issues?

Conclusion

This matter highlights the complexities that a court dealing with issues of constitutional invalidity is often faced with. On the one hand, a court must uphold the constitution by striking down offending legislation when it is appropriate to do so while also providing interim relief to affected persons. On the other hand, in crafting its interim order, the court ought to be mindful of the separation of powers doctrine and avoid going too far into the realm of policy making. The court’s decision will not only determine the dispute between the parties but will set a precedent which will have an immense contribution to South Africa’s transformative constitutionalism project.

Xolile Mgidi is a fourth year LLB student at UNISA in Cape Town.


This article was first published in De Rebus in 2025 (Jan/Feb) DR 62.

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