Headlines have been abuzz following yesterday’s judgment of Van Wyk and Others v Minister of Employment and Labour (2022-017842) [2023] ZAGPJHC 1213, which held certain provisions of sections relating to parental leave in the Basic Conditions of Employment Act (“BCEA”) and corresponding provisions of the Unemployment Insurance Fund (“UIF”) Act, to be unconstitutional.

The argument from Werner and Ika Van Wyk (“Applicants”) was premised on the submission that section 25(1) of the BCEA is unconstitutional because there is no justification for distinguishing one ‘parent-employee’ from another.  In essence, the Applicants’ submission was that both parents should be entitled to parental leave equally.

The opposing arguments from the Minister and National Employment Association of South Africa (“NEASA”) were largely focused on the issue of resource allocation, and that this was a matter better left for Parliament to address.  NEASA further submitted that the relief sought by the Applicants would be “bad for business”. 

Sutherland DJP sets out in the judgment that the controversy of the affronting provisions relates to child-nurture, in that, both parents have an essential role to play in the nurturing of a child and in this regard, the BCEA does not allow for ‘father-employees’ to live up to this role. 

Sutherland DJP explains that the scheme of the BCEA aligns with the societal norm of the mother being the “primary caregiver” and therefore entitled to four months’ maternity leave, whereas the father is the “ancillary” parent and therefore, only entitled to ten days’ leave.  It is this scheme that has been found to be misaligned with the egalitarian values espoused in the Constitution, and because of this misalignment, the Court was in agreement with the Applicants and held that the provisions of sections 25, 25A, 25B and 25C of the BCEA and sections 24, 26A, 27, and 29A of the UIF Act are inconsistent with sections 9 and 10 of the Constitution.

This declaration of invalidity is suspended for two years to allow Parliament to remedy the legislation.  In the interim, the Court has provided the following interim relief:

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:

1. One or other parent shall take the whole of the period, or
2. Each parent shall take turns at taking the leave.
3. 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 Constitutional Court makes the final call on whether an Act of Parliament is unconstitutional.  The order of invalidity, as per Sutherland DJP, needs to be confirmed by the apex court, in order for the order to have full and final effect.

Should the order of invalidity be confirmed by the Constitutional Court, the issue of practical application will be at the forefront of the conversation.  The question of how leave entitlements will be determined for those in ‘non-conventional’ domestic arrangements such as polygamous marriages remains unanswered.  Moreover, the impact of this judgment on the operations and finances of businesses cannot be overstated.

Our Employment Department will be following the developments.  For further queries, please contact 031 575 7000.