In a landmark ruling, the Johannesburg High Court has declared sections of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund Act (UIF) unconstitutional, citing unfair discrimination against mothers, fathers, surrogate parents, and adoptive parents in terms of maternity leave. The judgment handed down by Judge Roland Sutherland grants all parents the right to four months of “parental leave” collectively, and access to UIF benefits, subject to confirmation by the Constitutional Court.
The matter was brought before the court by a Polokwane couple, Werner and Ika van Wyk, in collaboration with Sonke Gender Justice, the Commission for Gender Equality, and other supporting organizations. The primary issue addressed was the differential treatment of parents in the BCEA, with particular focus on maternity and paternity leave, as well as leave for adoptive and surrogate parents.
The BCEA, which governs minimum leave entitlements for employees who become parents, provided four consecutive months of maternity leave for birth mothers and only ten days of paternity leave for fathers upon the birth of their child. For parents adopting children, a “gender-neutral” leave policy was in place, allowing one parent ten weeks and the other ten days of leave, the choice left to the individuals. However, the Act made no provision for parents using surrogacy.
The BCEA did not mandate employers to provide remuneration during leave, but parents contributing to the UIF could claim benefits during their time away from work.
Judge Sutherland’s ruling stated that there was a clear differentiation between mothers and fathers and between birth mothers and other parents, constituting unfair discrimination and a violation of parental dignity. Various proposals were presented during the case, such as equal and simultaneous leave entitlement for both parents. However, the Minister of Labour argued that the current benefits under the BCEA compared favorably with countries of similar socio-economic profiles, insisting that the Act did not breach constitutional guarantees. The National Employment Association of South Africa opposed the relief sought, asserting that it would be detrimental to businesses.
Judge Sutherland emphasized that the heart of the case revolved around unequal treatment and noted that both parents could provide comprehensive care for their child. He asserted that the distinctions made in the BCEA contradicted the Constitution and the objectives of the Children’s Act, as the purpose of parental leave is not solely for a mother’s physiological recovery after childbirth but for the nurturing of a baby or toddler.
The court’s ruling found the provision of a ten-week leave period for adoptive and commissioning “mothers” rather than the 16-week leave period provided for birth mothers to be irrational. It questioned why the distinction was made, as no legitimate governmental objective justified it. The judgment highlighted that fathers receiving only ten days of paternity leave perpetuated the mindset that fathers’ involvement in early parenting was marginal and failed to recognize their equal role in childcare.
The case of the Van Wyk family, where the mother ran her own business while the father was a salaried employee, illustrated how the BCEA did not cater to their family model. Judge Sutherland concluded that Parliament must address these inequalities promptly.
In the interim, the judge ruled in favor of the proposal put forward by the Van Wyk family, granting all parents, regardless of their circumstances, four consecutive months of parental leave collectively. While this ruling must be confirmed by the Constitutional Court, it represents a significant step toward more equitable parental leave policies in South Africa, paving the way for a more inclusive and supportive approach to parenting responsibilities.