26 October 2023
Judgment has been handed down in Van Wyk and Others v Minister of Employment and Labour (2022-017842) [2023] ZAGPJHC 1213, whereby maternity leave and parental leave provisions in the Basic Conditions of Employment Act and UIF Act have been ruled invalid, as they conflict with the Constitution. Although the invalidity has been suspended for two years to allow Parliament to amend the offending legislation, an interim order has been made (included below). The immediate effect of the judgment is, inter alia, that both parents are now entitled to at least four months’ parental leave, which may be shared between them. There are further implications insofar the adoption of children and commissioning parental leave is concerned. The full judgment is attached. The full implications of the judgment will be shared as they become apparent.
ORDER
(1) It is declared that the provisions of sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act no 75 of 1997 (BCEA), and the corresponding provisions of the Unemployment Insurance Fund Act no 63 of 2001 (UIF Act), sections 24, 26A, 27, 29A, are invalid by reason of inconsistency with sections 9 and 10 of the Constitution, to the extent that the provisions: -
(a) Unfairly discriminate between mothers and fathers;
(b) Unfairly discriminate between one set of parents and another on the basis of whether their children-
i. Were born of the mother.
ii. Were conceived by surrogacy.
iii. Were adopted.
(2) The declaration of invalidity is suspended for two years from the date of this judgment to allow Parliament to cure the defects.
(3) Pending remedial legislation being enacted, the provisions shall be read as set out below: -
(4) In section 25(1), the provisions are deleted and substituted with:
'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'.
(5) In section 25(2) the word 'employee' shall be substituted with the word 'pregnant mother'.
(6) In section 25, wherever the word 'maternity' appears it shall, where the context requires, be read as 'parental'.
(7) Section 25A (1) is deleted and substituted with:
'An employee who is a parent of a child is entitled to the leave stipulated in section 25(1)'.
(8) Section 25A (2)(a) is amplified by the addition after the word 'born': 'subject to the provisions of section 25(2)'
(9) Section 258(1)(b) is deleted and substituted with: 'the leave stipulated in section 25(1)'.
(10) Section 258 (6) is deleted and substituted with:
'If an adoption order is made in respect of two adoptive parents, they shall each. be entitled to leave as stipulated in section 25(1)'.
(11) In Section 25C (1) the provisions are deleted and substituted with:
'An employee who is a commissioning parent in a surrogate motherhood agreement is entitled to leave as stipulated in section 25(1).'
(12) Section 25C (6) is deleted and substituted with:
Where there are two commissioning parents, they shall each be entitled to leave as stipulated in section 25(1).
(13) The provisions of sections 25 (7), 25A (5) and 258 (5) and 25C (5) and the corresponding provisions in the UIF Act, sections 24, 26A, 27, 29A, shall be read to be consistent with changes effected by this order and, accordingly, each parent who is a contributor, as defined in the UIF Act, shall be entitled to the benefits as prescribed therein.
(14) The costs of the first, second, third and fourth applicants, including the costs of two counsel where so employed, shall in accordance with the Biowatch principle, be borne by the Minister of Labour.