On 25 October 2023, The Deputy Judge President of the Gauteng Johannesburg High
Court, the Honourable Justice Sutherland, handed down a landmark decision in the matter of
Van Wyk and Others v Minister of Employment and Labour regarding the constitutionality of
the Basic Conditions of Employment Act (BCEA) as it relates to maternity and parental leave
of mothers and fathers, surrogate parents, and adoptive parents.
The BCEA previously allowed for:-
1. At least four consecutive months’ maternity leave (section 25);
2. At least ten consecutive days’ parental leave (section 25A);
3. At least ten weeks’ consecutive adoption leave for a child below the age of two
(section 25B); and
4. At least ten weeks’ consecutive commissioning parental leave (section 25C).
The issue in the Van Wyk matter concerned whether the above provisions of the BCEA,
which regulate maternity and parental leave afforded to employees, unfairly discriminate
against different categories of parents insofar as the provisions potentially violate a person’s
Constitutional right to equality and dignity. It was argued that the BCEA unfairly discriminates
between different classes of parents when considering and allocating maternity and parental
leave (i.e. a birth mother and father; adoptive parents and parents of a child born through
surrogacy) as all of these classes of parents should enjoy an equal duration of leave.
It was undisputed that the BCEA differentiates between mothers and fathers, as well as
between a birth-mother and other mothers or parents. The question before the High Court
was therefore whether such differentiation amounts to unfair discrimination.
The High Court found that the relevant provisions of the BCEA regulating maternity and
parental leave infringe upon a person’s Constitutional rights to equality and dignity as they
unfairly discriminate between mothers and fathers, as well as between various types of
parents depending on whether their child was born of the mother; conceived by surrogacy;
or adopted.
The High Court declared sections 25, 25A, 25B and 25C of the BCEA (together with the
corresponding sections of the UIF Act) which provide for maternity and parental leave
benefits, unconstitutional and invalid. The High Court ordered that the declaration of
constitutional invalidity be suspended for two years in order to allow for remedial legislation
that shall govern the position of parental rights to be enacted by Parliament.
In order to remove the inequality in the interim, the Court directed that the BCEA is to be
read in the fashion that all parents in all circumstances (whether a child is born of the
mother, conceived by surrogacy or adoption) will enjoy 4 consecutive months’ parental
leave, collectively. This means that either one parent or both parents of a child can share the
4 months’ parental leave in any proportion as they choose.
This case acknowledges the various family models that exist and accordingly, Deputy Judge
President Sutherland recognised “that all parents of whatever stripe” are entitled to enjoy
four consecutive months of parental leave.
