Webber Wentzel's Pro Bono team represented Mr and Mrs van Wyk in a landmark case that has resulted in the Constitutional Court confirming that South Africa's statutory four months of parental leave may be shared between both parents. The ruling marks a significant step toward gender equality in the workplace and family law.
The case challenged the unequal parental leave provisions under section 25 of the Basic Conditions of Employment Act (BCEA), which granted birthing mothers up to four months of maternity leave while limiting fathers to only 10 days.
Webber Wentzel argued that section 25 of the BCEA unfairly discriminated against fathers and placed an undue burden on birthing mothers by not allowing families to decide who should be the primary caregiver. The court agreed and criticised the 10-day leave for fathers by rejecting the cultural norms that reinforce gendered parenting roles as inconsistent with constitutional values.
The application was supported by the Commission for Gender Equality (CGE) and Sonke Gender Justice (Sonke). CGE advocated for equal parental leave for adoptive and surrogacy-commissioning parents, which the court partially granted. Sonke’s request for an equal 16-week leave for both parents was not granted.
The Constitutional Court, in a unanimous judgment delivered by the Honourable Justice Tshiqi, confirmed that sections 25, 25A, 25B and 25C of the BCEA, along with corresponding provisions of the Unemployment Insurance Fund Act (UIF Act), are unconstitutional. The Court held that these provisions violate the rights to equality and human dignity under sections 9 and 10 of the Constitution.
The Minister of Employment and Labour accepted that differentiation exists between birthing mothers and other categories of parents is automatically unfair as it is based on grounds specified in section 9(3) of the Constitution. Further, the Minister acknowledges that there is a need for reform in the current legislation pertaining to the parental leave regime contained in the BCEA.
As a result of the ruling in the Constitutional Court, the 4 months of maternal and the 10 days of parental leave will be combined into a total of 4 months and 10 days, which parents may now share as they choose. If no agreement is reached, the leave will be split equally. Where only one parent is employed, that parent will be entitled to the 4 consecutive months of parental leave.
The Constitutional Court also confirmed that the same parental leave provisions apply to adoptive parents and commissioning parents in a surrogacy arrangement.
The Constitutional Court has suspended the declaration of invalidity of the relevant BCEA and UIF Act provisions for a period of 36 months, to allow the legislature to remedy the necessary constitutional defects. In the interim, the following principles will apply:
- A single parent or a parent who is the only employed parent is entitled to four months' consecutive parental leave.
- Parents who are both employed may share the allocated parental leave of four months and 10 days between them, concurrently or consecutively.
- An adoptive parent of a child younger than two years is entitled to four months' consecutive parental leave.
- If an adoption order is granted in respect of two parents, they may share the allocated parental leave of four months and 10 days between them, concurrently or consecutively.
- A commissioning parent is entitled to four months' consecutive parental leave.
- Where there are two commissioning parents, they may share the allocated parental leave of four months and 10 days between them, concurrently or consecutively.
Employers are encouraged to review and, where necessary, update their leave policies and employment contracts to reflect the new parental leave framework.
"This judgment is a powerful affirmation of the constitutional rights to equality and dignity,” said
Nkosinathi Thema, senior associate, Webber Wentzel. “It recognises that caregiving is not the exclusive responsibility of mothers and that both parents should have the freedom to decide how best to care for their child.”
The Webber Wentzel team comprised
Ayanda Khumalo,
Nkosinathi Thema and
Lize-Mari Doubell. Counsel Nasreen Rajab-Budlender SC, Liam Minné and Sanan Mirzoyev appeared on a pro bono basis.
The judgment can be read
here.
