Van Wyk V Minister Of Employment And Labour: A New Era Of Parental Leave

Just last week, in a judgment with constitutional significance for the workplace, the High Court has ruled that all parents, irrespective of gender, should be entitled to four months of parental leave from their employers.

The Van Wyk case is an important step toward gender equality and shared parental responsibility. This judgement has established a precedent that could potentially pave the way to a more inclusive work environment for all South African parents; benefiting families, employees, and businesses in the long run.

The genesis of the matter stems from the Van Wyk family’s utilisation of maternity and parental leave. Mr Van Wyk was a salaried employee, and Mrs Van Wyk has her own business. The couple decided that Mrs Van Wyk would return to her trade as soon as possible after the birth of their child in order to ensure that she sustained her business.

Mr Van Wyk was the only one eligible for leave because Mrs Van Wyk could not take maternity leave. However, under the current legislative framework, he was not eligible for more than ten days of paternity leave. As a result, Mr Van Wyk took partially unpaid extended leave after reaching an arrangement with his employer, however he was not eligible for UIF benefits.

Before the High Court, the Van Wyk’s main argument was to ensure that both parents were treated equally in a constitutionally compliant way. They aimed to do away with the traditional divide between childbearing parents and those parents who are not bearing children (adopting parents and parents in surrogacy agreement) on maternity leave. They hoped to achieve a more inclusive and fair approach to parental care by recognizing both parents’ shared duties and experiences. The issue before the Court turned on whether the provisions of sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act (“BCEA”) and the corresponding provisions of the Unemployment Insurance Fund Act (“UIFA”), namely sections 24, 26A, 27, 29A, were invalid due to inconsistency with sections 9 and 10 of the Constitution.

The Court held that the provisions of the BCEA and the UIFA were invalid to the extent that they discriminated unfairly between mothers and fathers, as well as between one set of parents and another based on whether their children were born of the mother, conceived through surrogacy, or adopted by the parents.

After concluding that the provisions in the BCEA relate to child nurturing rather than the physiological needs of a birth mother, the Court concluded that there is no compelling reason to provide for 10 weeks of adoption and commissioning parental leave, as provided for under the current frameworks, rather than the 16 weeks afforded to child-bearing mothers. Furthermore, restricting a father’s parental leave entitlement to a mere 10 days diminishes a father’s dignity since it reflects a mindset that views the father’s contribution in early parenting as insignificant.

According to the court’s decision, Parliament will be given two years to correct the deficiencies in the legislation that are in conflict with the provisions of the Constitution. However, simply postponing the invalidity does not imply that nothing has changed. In the interim, there are temporary provisions that include:

  • Child-bearing parents can decide between them who would take the allocated four-month parental leave period, or this period can be freely allocated between them.
  • Parents who adopt a child younger than two years are now entitled to the same leave regime as child-bearing parents. The court stated that the differentiation between adopted children older than two years old and those younger, is fair as children younger than two years old require a more intensive form of nurturing than those children older than two years old.
  • Parents in a commissioning parent arrangement are now entitled to the same leave regime as child-bearing parents. What is also important to note is that the surrogate mother is also entitled to leave, however it is limited to 10 weeks for physiological reasons and not for the purposes of nurturing the child. A distinction between the surrogate mother and other mothers was fair, due to the fact that the surrogate mother generally plays no role in the nurturing of the child.
  • All the above-mentioned parental categories would now benefit equally from parental leave provisions and UIF benefits.

The decision of the Court deviates from the traditional reading of these sections. It recognized the need to address existing inequality and agreed to amend Section 25 to reflect the court’s innovative outlook. To put it simply, a single parent or two parents are entitled to at least four months of uninterrupted parental leave. It emphasized the need to address inequalities and determined that, in the interim, extending the right to four consecutive months of parental leave was the best way to do so. In other words, any pair of qualifying parents should divide the four months of leave as they see fit.

While this is a fairly progressive decision, it is likely that some of the conclusions will be contested. Pregnant women in committed relationships, for example, were previously entitled to four consecutive months of maternity leave. Under the interim measures, this has been eradicated, and such pregnant women will now be compelled to divide their four-month leave allocation with the child’s father if the father wishes to take parental leave. If the parents choose a shared arrangement, they must notify both employers in writing of this agreement. It will be interesting to see whether this proposed arrangement will work in practice.


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