New court ruling a huge win for parental leave in South Africa

A new court ruling has set in motion big changes for parental leave in South Africa as sections of the Basic Conditions of Employment Act (BCEA) have been ruled unconstitutional.

Under interim conditions, new parents from a natural birth will be able to determine how the four months of parental leave is doled out, removing the forced caregiver roles pushed on mothers and fathers.

Additionally, parents of surrogate children, and adoptive parents to children under the age of two will also be granted the same parental leave rights.

On 25 October 2023, the Johannesburg High Court handed down judgment in the matter of Van Wyk and others v the Minister of Employment and Labour.

Norton Rose Fulbright SA’s Impact Litigation team acted on behalf of the Commission for Gender Equality (CGE), the fourth applicant.

According to Norton Rose Fulbright, The matter concerned the question as to whether the provisions of the Basic Conditions of Employment Act, 1997, regulating parental leave, unfairly discriminate against various types of parents, are contrary to the interests of the child, and impair the dignity of parents and their children.

In its judgment, the Court concluded that the provisions of the BCEA regulating parental leave do offend against sections 9 and 10 of the Constitution as they unfairly discriminate between mothers and fathers; and unfairly discriminate between parents depending on whether their child was born of the mother; conceived by surrogacy; or adopted.

Accordingly, sections 25, 25A, 25B and 25C of the BCEA (together with the corresponding sections of the Unemployment Insurance Fund Act, 2001, which provide for parental leave benefits) were declared unconstitutional and invalid.

The declaration of constitutional invalidity was suspended for two years, such that remedial legislation could be enacted by Parliament, pending which the offending provisions of the BCEA were amended to provide, in the interim, for a new regime whereby:

• Parents in a natural birth arrangement can elect which parent would take the whole four-month parental leave period or could freely allocate that four-month period between them; and

• Parents adopting a child younger than two years and parents in a commissioning parent arrangement would be entitled to the same leave regime as that now applicable to parents to a natural birth.

The effect of the interim provision is to allow all parents (except for those adopting a child older than two years) to benefit equally from parental leave provisions and the associated UIF benefits.

“This will alleviate the plight of, particularly, birth mothers who were previously obliged to assume the role of primary caregiver, thereby sacrificing employment and economic opportunities,” Norton Rose Fulbright said.

“The interim relief also allows all parents greater flexibility in how they choose to care for their children.”

Although the CGE had asked the court to extend parental leave provisions to adoptions involving children older than two, the legal experts said the court found this went too far and that the discrimination against such adopted children and their parents was not unfair.

The CGE had also asked the court to remedy the discrimination between different parents by providing four months’ leave for both parents.

“The court found that given the wide range of remedies available to Parliament, the most appropriate remedy was not to grant equal four months of leave to both parents but to allow them the choice of how they chose to arrange their parental leave entitlement,” the firm said.

“The judgment is to be welcomed in that it advances gender equality and recognises the importance of adoption and surrogacy arrangements in accordance with international best practices.”

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