The High Court in Johannesburg declared that the provisions of ss 25, 25A, 25B and 25C of the Basic Conditions of Employment Act 75 of 1997 (BCEA), and the corresponding provisions of the Unemployment Insurance Act 63 of 2001 (the UI Act), ss 24, 26A, 27, 29A, are invalid. This was after the applicants had made an application to the Johannesburg High Court on allegations of unconstitutionality of s 25, 25A, 25B and 25C in the BCEA, which deals with maternity leave.
The High Court pointed out that there were six entities who joined as amci curiae. The court said that four of them, the Centre for Human Rights at the University of Pretoria, Solidarity Centre South Africa, International Lawyers Assisting Workers Network, and the Labour Research Service advanced a common argument in support of the applicants criticism of the BCEA. A fifth amicus is the National Employers Association of South Africa (NEASA), who made a common cause with the Minister of Labour opposing the criticism of the BCEA. The sixth amicus did not participate in the hearing.
The High Court pointed out that the contested sections are in ch 3 of the BCEA. The High Court added that this chapter regulates the minimum leave that an employer must grant to employees in respect of several circumstances. The policy norm informing the statutory regulation of leave is that employees should be entitled to time off work for a guaranteed minimum duration under specified circumstances, a right which does not exist in terms of common law. The High Court said that as such, this is a quality-of-life-policy choice.
The High Court added that, accordingly, the first basic benefit the BCEA creates is paid annual leave, stipulated in ss 20 and 22. The High Court said that the second basic benefit, stipulated in
s 22, is a minimum duration of paid leave to recover from illness. And the third is in s 27, which makes provision for three days paid family responsibility leave in every leave cycle; plainly intended to cater for a response to a family emergency. The High Court pointed out that a fourth category of leave relates to the relationship of the employees qua parents to their children. The High Court said that this guaranteed period of leave does not compel an employer to pay to the employee. Sections 25, 25A, 25B, 25C and 26 regulate the granting of such leave.
The High Court said that the most recent amendments, namely, ss 25A – 25C were introduced by Labour Laws Amendment Act 10 of 2018 and came into effect on 1 January 2020. The cited provisions of the BCEA differentiate three categories of child, namely –
The High Court pointed out that a birth-mother’s circumstances are dealt with in ss 25 and 26. The High Court added that s 26 addresses explicitly the physiological dimension of pregnancy and of child nurture immediately post-birth. A mother shall not be permitted to perform work hazardous to her health or that of a child during pregnancy and six months after birth. The High Court pointed out that s 25(3) forbids a mother working for six weeks after the date of birth unless a doctor or midwife approves thereof.
The High Court said that s 25 goes on to provide for a total of four consecutive months’ maternity leave for a birthmother, of which one month may be taken prior to the date of birth. The High Court pointed out that in terms of ss 25A(1) and 25A(2)(a) a father is entitled to ten days leave from date of birth of the child. The High Court pointed out that s 25B deals with an adopted child. The recognition of leave for a parent in this category is limited to a child who is not more than two years old. The section recognises both adoptive parents. The High Court said that is must be read with s 25A. One parent is entitled to ten consecutive weeks leave and the other to ten days leave alluded to in s 25A. The High Court added that no provision is made for physical recovery. The provisions are gender neutral and a pair of same sex is not distinguished from heterosexual pair.
The High Court said that the third party of child is born via surrogacy. The High Court added that the leave is guaranteed for the genetically linked parents, called the ‘commissioning parents’ in the statute. The High Court held that the section says nothing whatever about the surrogate herself. The High Court said that s 25C regulates this category of leave. The entitlement is identical to that provided for adoptive parents; ergo, ten weeks or ten days.
The High Court pointed out that the guaranteed leave in ss 25A, 25B and 25C which is compulsory for an employer to grant, as alluded to above, does not require an employer pay any remuneration. The High Court said that the effect of the BCEA is that the employee has the time off work and has job security upon return to work. The High Court added that in all three categories the employee on this type of leave may claim a financial benefit from the Unemployment Insurance Fund (UIF) in such sums as are determined by the Minister of Labour.
The High Court said that s 25(1) is unconstitutional because no valid grounds exist to distinguish one parent-employee from another. The High Court added that both parents should be entitled to parental leave in equal measure and the failure provide so is unfair discrimination and violates the dignity of all parents. The High Court said that suggestions as to how equality and dignity might be achieved varies: The Van Wyks’ suggest that both parents share four months leave according to their election; the Commission for Gender Equality and the Sonke Gender Justice suggest both parents each have an equal and contemporaneous leave entitlement.
The High Court pointed out that the Minister argues that the present suite of benefits in the BCEA compares favourably with other states’ benefits more especially if appropriate jurisdictions are chosen to compare, that choice being directed by having regard to countries which have socio-economic profiles similar to that of South Africa. The High Court said the resistance by the Minister to the challenges to the BCEA is based on the proposition that what is in the statute does not violate any constitutional guarantees. The High Court pointed out that this is, in a limited sense, technically true, because the true location of the criticism is ‘what is not’ in the BCEA, but such distinction is unhelpful in conducting the analysis.
The High Court said, furthermore, the Minister contended that the controversy put before the court is not suitable for judicial adjudication because it is intrinsically a matter of social policy involving resource-allocation, which is a subject matter better left to Parliament to evaluate and make choices. The High Court added that NEASA also opposes the relief sought as supposedly bad for business and shares the Minister’s view that the controversy should be left to Parliament to address. The High Court said that must be borne in mind that the BCEA is a statute, which addresses minimum benefits in relation to employment and is not an instrument to regulate family life or prescribe norms by which free people should organise their family life.
The High Court pointed out that the state does nevertheless intervene in that realm but does so in other statutes, of which the Children’s Act 38 of 2005 is foremost importance in relation to controversy in this case. The High Court added that nonetheless, the BCEA must find application in a way that is in harmony with the Children’s Act no less than with the Constitution. The High Court said that ch 15 of the Childrens’ Act deals with adoption. The High Court pointed out that s 229 states that the purpose of adoption is to ‘protect and nurture children by providing a safe, healthy environment with positive support; and promote the goals of permanency planning by connecting children to other safe and nurturing family relationships intended to last a lifetime’.
The High Court said that it must follow that s 25B of the BCEA was enacted to facilitate the achievement of these goals. The High Court added that the Children’s Act does not address the practical conditions under which a child who is adopted must be ‘received’ by the adoptive parents and the process of establishing a bond between the child and both adoptive parents can be accomplished. The High Court said that ch 19 of the Children’s Act regulates surrogate motherhood and ch 3 of the Children’s Act deals with ‘parental responsibilities and rights’. The High Court said these apply to all three categories of child as identified in the BCEA.
The High Court pointed out that the provisions of this chapter stipulate, as a norm, equal duties, and rights by each parent. The High Court added that married partners are addressed in ss 19 and 20 in those express terms. The court said that circumstances of unmarried parent give rise, in ss 20 and 21, to differential treatment of the father, to cater of potential fluid relationships between father and mother and the defector intimacy or remoteness of the fathers’ involvement with the mother and with the child. The court said this variable does not intrude on the jurisprudential issue at stake.
The High Court added that upon the premise that the leave entitlement, and duration of the leave, are provided for the purpose of the nurture of a baby or toddler, not merely to allow a literal physiological recovery from giving birth, it seems plain that the distinctions made in the BCEA are at odds with the objectives of ss 9 and 10 of the Constitution and also odds with the norms inherent in the Children’s Act. The High Court said that the first irrationality is the provision for a ten-week period of leave provided for a birth mother.
The High Court noted to accord a paltry ten days’ leave to a father speaks to a mind-set that regards the father’s involvement in early parenting as marginal. The court said that this is per se offensive to the norms of the Constitution in that it impairs a father’s dignity. The court pointed out that long standing cultural norms exalting motherhood are not a legitimate platform for a cantilever to distinguish mothers’ and fathers’ roles.
The High Court said that there are many examples where other countries prescribe more generous periods of leave. The High Court added that, however, it is not part of this case that the court is called upon to address more than the question of an inequality of the duration of leave for each class of parent and for fathers and mothers or same-sex partners. The High Court said that the helpfulness of this literature is in the ubiquitous recognition of parents qua parents rather than a strict delineation between fathers and mothers, a norm wholly in line with the international instrument and with the South African Constitution.
With regards to the basis of opposition to the declaration of unconstitutionality. The court specifically dealt with the main perspective articulated by the Minister and by NEASA. The court said that the Minister and NEASA were unconvincing. The High Court pointed out that the first aspect of significance is the absence of any evidence produced by the Minister. The High Court said that it was a pity because the themes addressed in the Minster’s affidavit are, in certain respects, premised on assumptions bereft of substantiation. The High Court pointed out that the absence of relevant evidence impoverished the argument.
The High Court said that it was contended that ultimately, the additional benefits of leave have a negative effect on the economy by diverting the resources of business. The High Court added that unhappily, the Minister has evaded sharing with the court what the effect might be. The High Court said that to run with this type of thesis it is necessary to know how many maternity beneficiaries there are in any year, how many employers have paid maternity benefits, how many employers grant paid paternity benefits, and what proportion of labour force is covered by these contracts as contributors to the UIF. The High Court noted that none of this data has been placed before the court.
The High Court concluded that the declaratory orders sought by the applicants are well founded. That the sections in the BCEA do offend ss 1 and 10 of the Constitution. The High Court said Parliament must get to work to eliminate the inequalities. The High Court added that Parliament shall make substantive changes and a range of options exist in how to eliminate inequality. The High Court said that the appropriate immediate means by which to remove inequality, in the interim period, is the proposal advanced on behalf of Van Wyks; namely, all parents of whatever stripe, enjoy four consecutive months’ parental leave, collectively. The High Court pointed out that in other words, each pair of parents of qualifying child shall share the four months leave as they elect.
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
This article was first published in De Rebus in 2023 (Dec) DR 43.
