By Vanessa Jacklin-Levin, Layla Shah and Azminah Jhetam
On October 25, 2023, the Gauteng Division of the High Court of South Africa delivered a judgment in the matter between Van Wyk & Others v The Minister of Employment and Labour that may abolish maternity leave as provided for in the Basic Conditions of Employment Act 75 of 1997 (the BCEA).
The Court declared the provisions of sections 25, 25A to 25C of the BCEA and the corresponding provisions (24, 26A, 27 and 29A) of the Unemployment Insurance Act 63 of 2001 (the UIA) to be invalid by reason of inconsistency with sections 9 and 10 of the Constitution, as they unfairly discriminate between mothers and fathers, and one set of parents and another, on the basis of whether their children were born of the mother or were conceived by surrogacy or were adopted.
This declaration has been suspended for two years to afford Parliament an opportunity to remedy the defects. This declaration has no force and effect unless and until it is confirmed by the Constitutional Court.
The High Court has provided interim measures while Parliament remedies the defect which, subject to confirmation by the Constitutional Court, would allow parents to share the right to four months’ maternity leave between them, irrespective of gender or whether the child was born or adopted.
The interim measures provided by the High Court have since been challenged, on the basis that it is not just and equitable, since it would reduce the joint leave entitlement for a biological mother and her partner and fails to consider the best interests of the child. As such, the Constitutional Court is being asked to consider pertinent issues around equality and inclusivity.
Constitutional Court hearing
The Constitutional Court will hear the matter on November 1, 2024, which consists of three interrelated applications.
– Firstly, the application for confirmation of the order made by the Gauteng Division of the High Court declaring the above-mentioned sections of the BCEA and corresponding Sections of the UIA to be invalid.
– Secondly, an application for leave to appeal directly to the Constitutional Court against part of the High Court’s judgment and order by the Commission for Gender Equality.
– Thirdly, an application for cross-appeal against part of the High Court’s judgment and order by Sonke Gender Justice, represented by African law firm Bowmans. All three applications are set down for this single hearing on November 1, 2024.
Case centres on biological parents, parents in a same sex relationship, commissioning parents and adoptive parents being afforded the right to four months leave each.
Sonke Gender Justice’s argument is aligned with the Commission for Gender Equality’s argument save for Sonke Gender Justice arguing that both biological parents, parents in a same sex relationship, commissioning parents and adoptive parents should be afforded the right to four months leave each.
This proposal is termed the 4+4 proposal and recognises both parents’ rights to equality, dignity and freedom of trade, occupation and profession in that it does not place childcare responsibilities solely on the mother, thereby excluding them from the workplace. It is further argued that this proposal is in the best interests of the child, in terms of section 28(2) of the Constitution.
Employment considerations
If confirmed by the Constitutional Court, employers will need to amend their policies to ensure that provision is made for parental leave in line with the interim provisions to be confirmed by the Constitutional Court, pending the relevant amendments by the legislature.
If the 4+4 proposal succeeds, there are numerous considerations that the legislature would need to take into account when amending the relevant BCEA provisions. Importantly, how to navigate balancing the potential consequences on employers and business needs on the one hand, and the right to equality, dignity and freedom of trade on the other hand.
For instance, there are certain biological differences that would likely need to be considered. Women generally have a certain limited number of years within which their bodies can physiologically produce children, whereas physiologically, there is nothing stopping men from fathering children into the elderly stage of life. This has the potential to impact employers until a male employee retires and may negatively impact an employer’s business if the employer is obligated to inevitably grant male employees four months’ parental leave for each child they father until retirement.
There are further cultural and societal considerations as well, such as polygamous relationships or marriages in terms of the Recognition of Customary Marriages Act 120 of 1998. We are yet to see how the legislature would manage situations where men father children from multiple women in a short space of time and whether there will be any restrictions placed on their parental leave entitlement. While this is just speculation, the Courts may perhaps consider only granting parental leave for a certain number of children per year or granting the entitlement for a maximum number of children in an individual’s lifetime.
While these are important points to consider, which would need to be carefully managed such that maternity/parental leave provisions are not abused and employers are not unreasonably burdened, it of course should not take away from each person’s constitutional entitlement.
As a positive, the 4+4 proposal may create an opportunity for job creation, as more people may be offered fixed-term contracts to cover employees’ periods of parental leave. This would give employers an opportunity to transfer skills to new employees, who would receive indispensable training and gain work experience, which may increase their chances of finding permanent employment thereafter.
Vanessa Jacklin-Levin, Partner, Layla Shah, Associate and Azminah Jhetam, Candidate Legal Practitioner, Bowmans South Africa
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