Landmark Ruling: High Court Declares Parental Leave Provisions Unconstitutional

Oct 30, 2023



Earlier this week the Gauteng High Court considered the constitutionality of various leave provisions of the Basic Conditions of Employment Act, 75 of 1997 (“BCEA”) relating to maternity, parental, adoption and commissioning parental leave and related provisions if the Unemployment insurance Act, 63 of 2002 (“UIA”). The Court has ruled the provisions of the BCEA regulating parental leave unfairly discriminate against various types of parents. The court found that these provisions were contrary to the interests of the child and impaired the dignity of parents and their children.

The court found the provisions of the BCEA regulating parental leave are in breach of section 9 and 10 of the Constitution as they unfairly discriminate between mothers and fathers; and also, unfairly discriminate between parents depending on whether their child was born of the mother; conceived by surrogacy or adopted. The court ruled that both parents are entitled to maternity leave.

The court accordingly declared these provisions unconstitutional and invalid. The declaration of invalidity of the aforementioned provisions is suspended for two years in order for Parliament to initiate and implement the required amendments to cure the unconstitutionality of the BCEA and UIA, pending which the offending provisions of the Act were amended to provide, in the interim, for a new regime.

  • The implication is that that parents in a natural birth arrangement could elect which parent would take the whole four-month parental leave period, or they could freely allocate that four-month period between them.
  • Parents adopting a child younger than two and parents in a commissioning arrangement would be entitled to the same leave regime as that now applicable to parents to a natural birth.  i>
  • The effect of the interim provision is to allow all parents 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. The interim relief also allows all parents greater flexibility in how they choose to care for their children.
  • The judge concluded that the appropriate, immediate means by which to remove inequality in the interim period until Parliament has amended the Act is that all parents of whatever stripe enjoy four consecutive months parental leave, collectively. In other words, the judge explained, each pair of parents of a qualifying child shall share the four months leave as they elect.
    The court replaced the wording of the relevant clauses with the following:

“In section 25(1), the provisions are deleted and substituted with:
‘An employee who is a single parent is entitled, and employees, who are a pair of parents, are collectively entitled, to at least four months’ consecutive months’ parental leave, which, in the case of a pair of parents, be taken in accordance with their election, as follows:
(a) One or other parent shall take the whole of the period, or
(b) Each parent shall take turns at taking the leave.
(c) Both employers must be notified prior to the date of birth in writing of the election and if a shared arrangement is chosen, the period or periods to be taken by each of the parents must be stipulated”

  • The wording of the provisions relating to parental leave, adoption leave, and commissioning parental leave were also replaced to give effect to the court’s amendments of section 25(1).

Submissions were made on international law instruments and norms relating to gender equality, non-discrimination, child rights and the rights of families in the context of parental leave, as well as trends in other countries relating to parental leave. The court’s attention was drawn to these international and comparative trends that support the move from a scheme of maternity benefits for a child-rearing parent, to one of robust equality and non-discrimination, between a child-bearing and non-child-bearing parent. It also highlighted the needs of non-traditional parents who still carry the responsibility of child-rearing, such as adoptive and surrogacy-commissioned parents, to be allowed to take maternity leave. The court heard arguments on the rights of families to have the liberty to decide what care-giving plan is in their best interests and in the best interests of their child.

A declaration of invalidity made by a High Court must be referred to the Constitutional Court for confirmation, which confirmation is yet to be made. The Minister may also appeal the judgment and in this regard may request that the order of invalidity be suspended pending the finalisation of the appeal.

This information is published for general information purposes and is not intended to constitute legal advice and should not be construed as such. Specialist legal advice should always be sought in relation to any particular situation. Maserumule will accept no responsibility for any actions taken or not taken on the basis of this publication. Consent must be obtained from Maserumule before the information provided herein is reproduced in any way. No person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against Maserumule and/or any of its personnel.

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