High Court Ruling on Maternity Leave

The South Gauteng High Court, in the case of Van Wyk and Others v Minister of Employment and Labour (2022-017842) [2023] ZAGPJHC 1213 (25 October 2023) has ruled that some provisions of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund Act (UIF Act) are unconstitutional.

The two pieces of legislation were amended in 2019 after the ACDP Party submitted a private bill which proposed adding Parental Leave, Adoption Leave and Commissioning Leave to the BCEA and required that the UIF Act pay employees who applied for this leave. Adoption leave had been recognised by the UIF Act previously, but not by the BCEA.

As a result, most companies revisited their leave policies and it was a legal requirement to amend letters of appointment to reflect the new leave types. Inspectors from the Department of Employment and Labour are currently issuing compliance notices to companies who have not updated their policies and amended their letters of appointment.

The recent Judgement was brought to court by Mr and Mrs van Wyk, Sonke Gender Justice and the Commission for Gender Equality who argued that it was unconstitutional to distinguish one parent-employee from another and that both parents should be entitled to parental leave in equal measures. The Judgement concurs and reads:

1. It is declared that the provisions of sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act no 75 of 1997 (BCEA), and the corresponding provisions of the Unemployment Insurance Fund Act no 63 of 2001 (UIF Act), sections 24, 26A, 27, 29A, are invalid by reason of inconsistency with sections 9 and 10 of the Constitution, to the extent that the provisions: –
   • Unfairly discriminate between mothers and fathers;
   • Unfairly discriminate between one set of parents and another on the basis of whether their children-
     • Were born of the mother.
     • Were conceived by surrogacy.
     • Were adopted.
2. The declaration of invalidity is suspended for two years from the date of this judgment to allow Parliament to cure the defects.
3. Pending remedial legislation being enacted, the provisions shall be read as set out below: –
4. 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:
     • One or other parent shall take the whole of the period, or
     • Each parent shall take turns at taking the leave.
     • 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’.
5. In section 25(2) the word ’employee’ shall be substituted with the word ‘pregnant mother’
6. In section 25, wherever the word ‘maternity’ appears it shall, where the context requires, be read as ‘parental’.
7. Section 25A (1) is deleted and substituted with:
   • ‘An employee who is a parent of a child is entitled to the leave stipulated in section 25(1)’.
8. Section 25A (2)(a) is amplified by the addition after the word ‘born’: ‘subject to the provisions of section 25(2)’
9. Section 258(1)(b) is deleted and substituted with: ‘the leave stipulated in section 25(1)’.
10. Section 258 (6) is deleted and substituted with:
    • ‘If an adoption order is made in respect of two adoptive parents, they shall each be entitled to leave as stipulated in section 25(1)’.
11. In Section 25C (1) the provisions are deleted and substituted with:
    • ‘An employee who is a commissioning parent in a surrogate motherhood agreement is entitled to leave as stipulated in section 25(1).’
12. Section 25C (6) is deleted and substituted with:
    • Where there are two commissioning parents, they shall each be entitled to leave as stipulated in section 25(1).
13. The provisions of sections 25 (7), 25A (5) and 258 (5) and 25C (5) and the corresponding

provisions in the UIF Act, sections 24, 26A, 27, 29A, shall be read to be consistent with changes effected by this order and, accordingly, each parent who is a contributor, as defined in the UIF Act, shall be entitled to the benefits as prescribed therein.

What Actions are Employers Supposed to Take

At this stage this judgement still has to be tested by the Constitutional Court, so no action is required at present. The Judge has also indicated that the Legislature has two years to make the necessary changes to the legislation, if the Constitutional Court agrees with this judgement.

If there is agreement, then the following steps need to be taken:

1. NEDLAC needs to convene a committee to consider the amendment to the legislation and to draft White Papers for both Acts for consideration by the House of Representatives.
2. The house of Representatives must debate the White Papers.
3. The White Papers for both Acts need to be published for public comment.
4. The proposed Amendment Bills for both Acts need to be presented to National Assembly with proposed amendments as recommended by the Committee after taking into account the public comments and debate it.
5. Once adopted by the House of Representatives, the proposed amendment bills must be tabled at the National Council of Provinces.
6. Once accepted by the National Council of Provinces the proposed Amendment Bills need to be passed by Cabinet and published as Amendments to the Act.
7. The new Amendments to the Acts need to be promulgated by either the Minister responsible or the President.

The previous amendments to the BCEA and the UIF Act, which introduced parental and commissioning leave and changed the entitlement to adoption leave were first introduced by the ACDP Party on the 7th October 2015. They were signed into law in 2017, but only promulgated on 1 November 2019. This process must now be accomplished in two years by court order. It is probable that the Department of Employment and Labour would request an extension as they would need to ensure that any increase in leave entitlement can be afforded by the UIF.

Until the Acts are amended there is no requirement to change any of the policies, however, once the Constitutional Court has ruled, it may be time to dust off the relevant policies and review them.

Many companies are paying mothers the whole of their salary while they are on maternity leave or topping up the amount that they can receive from UIF. The implications if fathers are also entitled to take four months parental leave must be carefully considered, but until the Constitutional Court rules, our only responsibility is to ensure that our policies and contracts of employment reflect the current legislation.