Maternity Leave

AUTHOR:  Maliviwe Dlamini

In a landmark decision delivered by Judge President Roland Sutherland of the Gauteng High Court in the matter between Van Wyk and Others v Minister of Employment and Labour (2022-017842) {2023} ZAGPJHC 1213 (25 October 2023) concluded that the provisions of Sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act and the Unemployment Insurance Fund Act regulating maternity leave was unconstitutional and discriminatory to the extent that the Act was unfairly discriminating between mothers and fathers, unfairly discriminating between the set of parents and another on the basis of (whether the children were born of the mother, were conceived by surrogacy or were adopted). The court rightly so found that such differentiation violates a person’s (or employees) right to dignity and equality.

The Judgement concluded that the abovementioned maternity provisions do not promote a gender egalitarian society, therefore violate Sections 9 (right to equality) and 10 (right to dignity) of the Constitution. The court has also suspended the period of invalidity for two (2) years so that the legislation can be modified by the parliament. This landmark Judgment grants all parents’ the same rights to utilize maternity in terms of section 25 (an employee is entitled four months of unpaid maternity leave following the birth of her child) of the BCEA irrespective of gender. One of biggest major changes that judgment makes, is amending the words “maternity leave” to “parental leave” (section 25(1) BCEA as amended in the judgment). The change in connotation creates gender neutrality in the interpretation of section 25(1). The effects of the amendments by J Sutherland allows both parents (both mother and father) to be primary caregivers during a Childs infancy. In simple terms the judgement delivered by J Sutherland allows both male and female employees to take parental leave up to 4 months.

This judgement provides an evolution in employment law for gender egalitarian. The true essence of this Judgement reaffirms a need to critical reevaluate our Employment law structure and legislation (Basic Employments Act, the Labour Relations Act, the Unemployment Insurance Act, The Employment Equity Act. There is an urgent need to thoroughly evaluate whether all these Acts conform to section 9 and 10 of the Constitution, more importantly do the sections of the Acts promote the Bill of Rights in terms of Section 39 (1).



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