In a groundbreaking decision, the Johannesburg High Court recently rendered a pivotal verdict in the case of W van Wyk and others vs. the Minister of Employment and Labour, reshaping the landscape of maternity and parental leave in South Africa. The Court’s ruling declared the current regulations of the Basic Conditions of Employment Act (BCEA) unconstitutional, asserting that they violated the fundamental rights of equality and human dignity by offering a mere four (4) months of unpaid leave to childbearing employees. Additionally, the Court found the 2020 BCEA regulations, which introduced commissioning parental leave, adoption leave, and parental leave, to be discriminatory.

Before delving into the transformative implications of this Court decision, it is essential to grasp the origins of this legal dispute. Mr Werner van Wyk’s plea for a four-month leave to care for his newborn child following his wife’s return to work was met with rejection. This denied request prompted Mr. van Wyk and other affected parties to initiate legal proceedings against the Minister of Employment and Labour in the Gauteng Division of the High Court.

The Court’s judgment found that the BCEA’s regulations created unjust distinctions between fathers and mothers, as well as between different categories of parents, based on factors such as adoption, surrogacy, or natural birth. In response to these findings, the Court ordered a suspension of the declaration of invalidity for two (2) years, allowing legislative processes to rectify and amend these regulations.

The Court’s ruling conveyed a powerful message regarding prevailing societal norms and their impact on the roles of fathers in parenting. It emphasised that providing only ten (1) days of leave to fathers was not only offensive but also detrimental to their dignity. The Court underscored the rigorous nature of parenting and the necessity for equal recognition within the BCEA.

The Court articulated its perspective as follows:

“To accord a paltry ten (10) days’ leave to a father speaks to a mindset that regards the father’s involvement in early parenting as marginal. In my view, this is per se so offensive to the norms of the Constitution that it impairs a father’s dignity. Long-standing cultural norms which exalt motherhood are not a legitimate platform for a cantilever to distinguish mothers’ and fathers’ roles. Parenting is… onerous, involving actual work, resilience in the face of exasperation, anxiety… extreme exhaustion, sacrifice of sleep and sacrifice of the pursuit of other interests. A father who chooses to share in this experience… can indeed complain that the absence of equal recognition in the BCEA is unfair discrimination.”

For the full judgement, please follow the following link.

In response to the Court’s decision, various BCEA provisions were amended, offering parents increased flexibility. In cases of natural childbirth, both parents can now decide whether to take the entire four-month parental leave or share it as they see fit. Parents adopting a child under two (2) years and those in a commissioning parent arrangement are entitled to the same leave regime as parents in a natural birth scenario.

Expectant mothers must take leave at least four (4) weeks before giving birth unless a medical practitioner approves them to work during that period. Additionally, they are not expected to return to work within the first six (6) weeks after childbirth. However, the term “maternity” will now be interpreted as “parental” for all other purposes, eliminating unfair distinctions based on gender or the circumstances of parenthood.

Employers are urged to review their existing policies and make the necessary adjustments to align with these legal changes.

It’s important to note that similar revisions may be anticipated in Family Responsibility Leave and UIF legislation, particularly concerning the regulation of benefits when parents opt to “share” parental benefits. The legislative process is expected to bring further clarity on this matter.

Article by Jaundré Kruger

National Manager at Consolidated Employers Organisation (CEO SA)