“This ruling carries substantial implications for the recognition of the value of care work. It effectively challenges the traditional assumption that the primary caregiver is invariably a woman. The judgement underscores that men, too, can assume the role of primary caregivers.”
In a landmark decision, the Johannesburg High Court ruled that sections of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund (UIF) Act are unconstitutional for discriminating against mothers and fathers and surrogate and adoptive parents. The ruling has far-reaching implications for parental leave in South Africa and is a win for gender equity.
A couple, Werner and Ika van Wyk, along with Sonke Gender Justice and the Commission for Gender Equality, brought the case before the court. The Labour Research Service and other organisations appeared as amicus curiae (friends of the court).
Unconstitutional sections
Chapter 3 of the BCEA, which regulates the minimum leave granted to employees who become parents was contested. The sections included provisions for four consecutive months of maternity leave for birth mothers and only 10 days of paternity leave for fathers. For adoptive parents, the Act provides ‘gender-neutral’ leave, with one parent having the right to 10 consecutive weeks and the other to 10 days, at their discretion. However, the Act was silent on leave for surrogate children. Significantly, the BCEA did not require employers to pay for parental leave, but parents were entitled to claim benefits from the UIF if they had contributed.
The high court ruling
High Court judge Roland Sutherland ruled that the discrimination between mothers and fathers and between birth mothers and other parents was unconstitutional and an affront to the dignity of all parents. He argued that the discrimination was unjustifiable, especially given that both parents could provide full care for their child, excluding breastfeeding. Justice Sutherland stressed that the BCEA should be consistent with the objectives of the Constitution and the Children Act, which are rooted in promoting the well-being of children.
The judgement addressed two key issues of irrationality in the existing legislation. Firstly, it challenged the provision of only 10 weeks’ leave for commissioning and adoptive mothers, as opposed to the 16 weeks’ leave provided for birth mothers. The judge found no compelling justification for this distinction and said it was unfair. All mothers should be entitled to the same period of leave to care for their child, regardless of how their child came into the family.
"Why dock off six weeks because they did not experience physical childbirth? What impelling rationale could inform the need for the distinction to be made … No legitimate governmental objective is discernible. In my view, the discrimination is unfair. Mothers in all three categories ought to be entitled to the same period of leave for the purpose of child nurture."
The second point of contention was the paltry 10 days of paternity leave for fathers, which the judge said reflected a mindset that marginalised fathers in early parenting. The ruling stressed the importance of shared parenting between mothers and fathers and found current laws unfairly discriminatory.
Implications and prospects
The ruling has the potential to redefine social norms, promote gender equality and put the best interests of children above all else. It recognises that both parents are equal carers and that children benefit when both parents are involved in their early development.
Research shows that the gender pay gap is more pronounced among men and women who have children, and providing leave options for fathers plays a role in narrowing this wage disparity.
"When men choose to take parental leave, it shifts the perception of the leave itself. Traditionally, women have sometimes faced repercussions when taking maternity leave. However, the idea that men can also take this leave introduces a new perspective that adds value to it in a different way."
The ruling is not yet final. Parliament must confirm by amending the BCEA and UIA, and the labour minister can appeal.
In ordering interim relief, Judge Roland Sutherland said:
"In my view, the appropriate immediate means by which to remove inequality, in the interim period, is the proposal advanced by the Van Wyks; i.e. all parents of whatever stripe, enjoy four (4) consecutive months' parental leave, collectively. In other words, each pair of parents of a qualifying child shall share the 4 months leave as they elect."
