There is no doubt that the conventional familial landscape in our country has changed significantly in the last few decades.  Same sex couples, unmarried parents and single males and females are able to have their own children through adoption, surrogacy, and other reproductive options in order to create and enjoy their own family unit.  Furthermore, the strengthening female work force and the increase of female breadwinners has also created the social dynamic of fathers being the designated caregiver of infants.

In terms of the Basic Conditions of Employment Act, 1997 ("the BCEA"), a male employee has no statutory right to paternity leave.  Male employees may take three days leave in terms of their family responsibility leave however, any extra leave following the birth of a child would need to be taken in terms of an annual leave application. Furthermore there is no statutory right to extended unpaid leave, although companies may choose to grant it in terms of their own policies and procedures.  The one statutory exception to this rule is a mother's right to four months of unpaid maternity leave in terms of the BCEA.  This is not extended to male employees and the legislation is clear that it refers only to the actual mother of an infant. 

Until now the law has not kept pace with these developments and it is fair to say that it has a long way to go.  However, the case of M I A v State Information Technology Agency (Pty) Ltd [2015] JOL 33060 (LC) Judge Gush opened the door to the possibility that the legislature may need to revisit the limited scope of the BCEA and its maternity leave provisions. 

In this case, a male same-sex couple who were partners in a civil union had a baby with assistance of a surrogate mother in terms of a surrogacy agreement as envisioned in the Children's Act (No. 38 of 2005).  Following the birth, the child was the entire responsibility of the couple and the surrogate mother had no further involvement. In fact, she never had sight of the infant from immediately after its birth.  In terms of the applicable legislation, the couple were the child's parents and wholly accountable for its well being.

The Employee in this case applied to his Employer for "maternity leave" in terms of its policies, there being no provision for "paternity leave".  The Employer denied the application.  Their explanation for the denial was wholly based on the fact that the policy stated that it was a "maternity leave" provision which was only a right to be enjoyed by females.  They further pleaded that this was based on the understanding that the biological process of pregnancy and childbirth created a physiological effect that prevented biological mothers from working for period of time during the end of their pregnancy and after child birth.  It specifically emphasized that a female should be financially protected from her "…physical incapacity to work immediately before and after childbirth…"

The judge made short shrift of this explanation which ignored the obvious fact that the wellbeing of the new born infant necessarily requires a devoted and full time care giver, particularly in the first months of life.  Whilst traditionally the birth mother of an infant is usually the person who takes that role, it is clear that many different child rearing examples exist.  To the judge, the best interests of the child were paramount, as is required by both the Children's Act and the Constitution of South Africa.  It was axiomatic that the employee, as the parent of the child, should be allowed to take that role, even if he had not physically given birth to the infant.  To the judge there was no reason why a person such as the employee should not enjoy the benefit of "maternity leave" for the same duration as the maternity leave to which a natural mother is entitled.  He said that the policy was discriminatory and that the employee should be allowed to enjoy the benefits provided for in terms of that policy.

Although the judge mentioned that it was necessary to amend the BCEA to deal with such situations, he did not make a ruling to that effect as it was the employer's own maternity leave policy that was under scrutiny. 

Arising from this judgment it is important, in our opinion, for employers to re-look at their maternity policies and ensure that there is sufficient leeway to accommodate situations as described above.  There is no doubt that this judgment has far-reaching implications for employers and if a company is confronted with an unusual request for maternity leave, it would be wise to seek legal advice on the implications thereof rather than issue an immediate refusal.  Applications such as these are going to become more frequent and employers are well advised to keep pace with these developments to avoid litigation.