Imagine a society where the law sees all parents through the same lens – where maternity and paternity leaves are not bound by traditional gender roles or the nature of parenthood, be it biological, adoptive or through surrogacy.

A groundbreaking judgment by the Gauteng Division of the High Court in Johannesburg on 25 October 2023 has brought SA a step closer to this reality, challenging the entrenched provisions of the Basic Conditions of Employment Act of 1997 (BCEA). The court’s bold move raises a critical question: are our existing parental leave laws in line with the evolving norms of family, equality and dignity as enshrined in our Constitution?

The court held in Van Wyk and others v Minister of Labour that several provisions of the BCEA were unconstitutional as they unfairly discriminated between categories of parents.

While Parliament was given two years to remedy the situation, it held that an employee who is a single parent is entitled to four months of consecutive parental leave, and employees who are a pair of parents are collectively entitled to four months of consecutive parental leave, to be taken in turn.

The application challenges the constitutionality of sections 25, 25A, 25B, and 25C of the BCEA concerning maternity and parental leave.

The BCEA is among the laws that oversee employment and labour relations, with its value choices rooted in sections of the Constitution that touch on employment, equality and dignity. 

The main issue is whether these BCEA provisions are unconstitutional due to potential discrimination against individuals, violating sections 9 or 10 of the Constitution.

The contested provisions outline the minimum leave employers must provide to employees under various circumstances. It aims to ensure employees get time off work for specific durations – a right not present in common law.

The BCEA establishes benefits like paid annual leave, paid leave for illness recovery and family responsibility leave.

Another category of leave pertains to employees as parents.

Sections 25, 25A, 25B, 25C and 26 detail this leave, with recent amendments differentiating between a child born of a mother, a child born via surrogacy, and an adopted child.

Section 25 provides a birth mother with four consecutive months of maternity leave, with one month possible before the child’s birth. Fathers get 10 days of leave from the child’s birth date as per sections 25A (1) and 25A (2)(a).

Section 25B concerns adopted children, granting one parent 10 consecutive weeks of leave and the other 10 days. This leave is only for children not older than two years. The provisions are gender-neutral. Surrogacy-born children have leave entitlements identical to adoptive parents, as outlined in section 25C.

The BCEA ensures that employees on leave under sections 25A, 25B and 25C have job security upon return, but employers aren’t mandated to pay any remuneration. Employees can, however, claim financial benefits from the Unemployment Insurance Fund.

The applicants argued that section 25(1) is unconstitutional as it doesn’t treat parent-employees equally. Both parents should have equal parental leave, and not providing this is discriminatory and violates parents’ dignity.

The different durations of prescribed leave for birth mothers and fathers, adoptive parents and surrogacy parents are discriminatory and violate parents’ dignity.

All categories should have equal leave durations.

The stipulation that adoptive parents’ leave is only for children under two years old is seen as irrational and discriminatory.

The minister of labour countered the application, claiming that the BCEA’s benefits are comparable to those in other countries with similar socioeconomic profiles to South Africa.

The minister believed that the BCEA doesn’t breach any constitutional guarantees and that the matter was more suited for Parliament’s evaluation and decision, given its social policy and resource allocation implications.

The National Employers Association of South Africa also opposed the relief, deeming it potentially harmful to businesses and agreeing that Parliament should address the issue.

However, the Johannesburg High Court held that the BCEA unfairly discriminates on grounds of gender and categories of parenthood. 

The BCEA’s provisions are also inconsistent with the Children’s Act of 2005, which promotes equal duties and rights for each parent.

The BCEA’s differentiation in leave duration for different types of parents is viewed as unfair discrimination. The BCEA’s provision of only 10 days’ leave for fathers marginalises their role in early parenting, which is against the Constitution’s norms.

The minister and the National Employers Association of SA opposed the declaration of unconstitutionality, arguing the BCEA reflects societal consensus and that courts shouldn’t intervene in resource allocation and societal norms. The court, however, found that these arguments were unconvincing due to a lack of evidence.

International literature indicates a global trend towards recognising equal roles of parents in early child nurture. 

The BCEA’s provisions don’t align with international norms or the South African Constitution. The BCEA’s provisions on parental leave were also found to be unconstitutional. 

All parents should collectively enjoy four consecutive months of parental leave, which they can divide as they choose.

The BCEA’s provisions on maternity and parental leave inherently suggest that one parent (typically the mother) is the primary caregiver, while the other (typically the father) is secondary. This perspective is deeply rooted in societal gender stereotypes. 

The case challenges these stereotypes by advocating for equal parental leave for both parents, emphasising the importance of both parents in early child-rearing.

Many employees are invested in relationships that do not resemble the traditional nuclear, dyadic (two-person), heterosexual family. 

Discrimination protection should not be based on simplistic distinctions between married and unmarried employees. The case emphasises that all categories of parents, whether by birth, adoption or surrogacy, should have equal leave durations, recognising the diverse family structures in society.

The Children’s Act emphasises the best interests of the child. Equal parental involvement, as advocated in the case, aligns with this principle, ensuring that children receive care, love and attention from both parents. 

The case’s challenge to the BCEA provisions empowers parents to decide how they wish to divide their parental leave, promoting autonomy and choice in how families navigate early child-rearing.

The result of this case has the potential to reshape societal norms, promote gender equality and ensure that the best interests of children are always at the forefront. DM