Anli Bezuidenhout, Director of Employment Law at Cliffe Dekker Hofmeyr tells the OFM Business Hour that whilst working mothers view the development as a step in the right direction albeit being ‘long overdue’, businesses ­­­­­are perturbed by future additional financial costs associated with the development – once implemented - as organisations will now need to plan for leave that was not initially budgeted for. Despite these opposing views, nothing is immediate, yet.

This judgment by Gauteng High Court Deputy Judge President Roland Sutherland, declared the provisions of the Basic Conditions of Employment Act (BCEA) relating to maternity, parental, adoption and commissioning parental leave and the relevant provisions of the Unemployment Insurance Act (UIA) unconstitutional and invalid for falling foul of the rights to equality and dignity. Thus, making all parents eligible for maternity leave (referred to as parental leave). Previously the BCEA made distinctions via categories when it came to leave designated for the care of a newborn child:

• 4-months leave was usually taken by the birthing mother;
• 10 days parental leave was taken by the partner to the birthing mother;
• 10 weeks commissioning parental leave or leave in a surrogacy arrangement.

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How the judgment changes the situation

"Now the court has provided interim relief by amending the legislation to provide all parents 4 consecutive months' parental leave collectively (each pair of parents of a qualifying child are in a position to share the 4 months leave as they elect)" explains the Cliffe Dekker Hofmeyr team. 

PRESS STATEMENT | A ground-breaking judgment, which gets SA that much closer to #gender #equality in parenting & the workplace! No more discrimination in the parental leave that women and men get, regardless of how they choose to have kids. ??????

???? https://t.co/DLDMuwC2vL pic.twitter.com/ORtputEZnG

— Lawyers for Human Rights (@LHR_SA) October 26, 2023

Background on the case

The application was launched by Werner van Wyk and his spouse, Ika van Wyk. Bezuidenhout says Werner was an employee and Ika ran her own business ventures. Upon Ika’s pregnancy the couple decided that Werner would take time off to care for the newborn. So during the pregnancy Mr van Wyk applied to his employer for the four-month maternity leave benefit. The employer refused on the basis that its maternity leave policy did not provide for persons other than the birthing mother to receive the maternity leave benefit. Werner promptly took the legal route.

Impact of the judgment not immediate

The court has suspended the declaration of invalidity for two years in order for Parliament to make the required amendments to the relevant sections of the BCEA and UIA. Furthermore, the matter is still subject to appeal and needs to be confirmed by the Constitutional Court of South Africa.

Employers should take note of the judgment

The Director of Employment Law at Cliffe Dekker Hofmeyr says she cannot speculate when will the changes to legislation be finalised, she does however urge business owners and heads of organisations to read through the judgment carefully and start thinking about what things will look like should the relevant provisions of the BCEA and the UIA be altered – don’t delay. 

OFM Business Hour