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An insight into the division of parental leave: The implications of Van Wyk and others v minister of employment and labour

In the South Gauteng High Court, the reported case of Van Wyk and Others v Minister of Employment and Labour (“Van Wyk”)[1] heralded a stepping stone for the equality of care for one’s own child. DJP Sutherland ruled in favour of furthering the rights of fathers, regardless of marital status, to care by allowing a shared parental leave (of up to four months) to be shared between both parents as they see fit. The rights to equality and dignity, as contained in sections 9 and 10 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”), were found pivotal to the issue of the role of the father in his care for his own children, and whether the differentiation in the amount of parental leave granted to a father, was indeed justified.

Currently, under section 25A(1) of the Basic Conditions of Employment Act 75 of 1997 (“BCEA”), as amended, fathers are entitled to at least ten consecutive days of parental leave at the time of the birth of their child. Birth mothers, on the other hand, were prohibited from returning to work for six weeks leave after the birth (unless a medical practitioner or midwife certifies that the mother may go back to work) and at least four consecutive months of parental leave in total, in terms of section 25 of the BCEA.

The Applicants were Werner Van Wyk (“Mr Van Wyk”) and Ika van Wyk (“Mrs Van Wyk”). Mrs Van Wyk worked for her own account, and she could not afford to have the business remain dormant and unattended over an extended period. No provision is made in the BCEA for parental leave to be transferred. As a result, Mr Van Wyk was forced by his employer to take unpaid leave as well as use up accumulated leave to care for their child. As a result, Mr and Mrs Van Wyk launched this application for constitutional invalidity of certain provisions of the BCEA and the Unemployment Insurance Fund Act 63 of 2001 (“UIF Act”), specifically sections 24, 26A, 27 and 29 thereof.

The relationship of children with their parents was considered in determining this potential constitutional invalidity. Also in contention in the Van Wyk case was that different durations of parents’ leave were granted for parents, depending on whether the children were adoptive, born via surrogacy (“commissioning parents”) or genetically related to the child. This difference was likely made by the legislature due to the physiological stress endured by a biological mother in giving birth. One parent in a set of adoptive or commissioning parents may take ten weeks of leave and the other is entitled to ten days of leave.

The classic test for unfair discrimination[2] was applied in testing for unconstitutionality. This two-pronged test first asks if a provision or statute which differentiates between people or categories of people, on a listed ground under section 9(3) of the Constitution (inter alia gender), amounts to discrimination. The court in Van Wyk held that the differentiation in the case did indeed constitute discrimination and be deemed fair discrimination. Discrimination may, in terms of equality legislation, be justified. However, unfair discrimination in Van Wyk was found to be present by Sutherland DJP, not only in the difference in leave provisions between fathers and mothers, but also in the different categories of birth mothers, adoptive mothers and commissioning mothers.

In coming to its conclusion, the court considered the responsibilities and rights of parents. Granting a father a mere 10 days of parental leave belies that their presence around a child is not important. It also reflects outdated cultural norms where the burden of being the primary caregiver is squared solely on the shoulders of the mother. This, in effect, amounts to a statutory imposition of the role of caregiver on the mother for no adequate reason. This therefore impairs on both the mother and father’s dignity, as agency is stripped from both mother and father, while they are relegated to antiquated and stereotypical roles that are of diminishing relevance, in modern societies, where men and women have more parity in their relationships and how they share responsibilities.

There were concerns of many more UIF claims coming to the fore, should the provisions on parental leave be expanded. However, the unconstitutionality of the provisions was held to supersede any claims of a detrimental financial impact on the UIF, which in any event were not proven by the Minister of Employment and Labour.

The Court ordered that the relevant sections of the BCEA and the UIF Act are invalid by reason of inconsistency with sections 9 and 10 of the Constitution; however, the order of invalidity was suspended for two years to allow the legislature time to cure the defects. The Court provided for temporary reading in to section 25(1) of the BCEA, which allows for parents to share four consecutive months of parental leave, in any of the following configurations:

  1. One or the other parent shall take the whole of the period; or
  2. Each parent shall take turns at taking leave; and
  • 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.

This four-month period applies to parents of each category, meaning that adoptive parents and parents whose children are born via surrogacy also benefit from the decision in Van Wyk.

It must be noted that, because it came from of a High Court, this declaration of invalidity is subject to confirmation by the Constitutional Court and will only be binding should the Constitutional Court confirm the order in Van Wyk.

It remains to be seen what the Constitutional Court will decide. Some may argue that limiting the parental leave for parents where a woman gives birth to four months is a dilution of the rights birth mothers currently enjoy. In terms of the order in Van Wyk, the ten days fathers were previously entitled to, has been erased and replaced by their entitlement to a share of their spouse’s four months. Therefore, birth mothers would essentially be in a worse position than they were previously, should they share their parental leave with their spouse.

Increasing the parental leave to which adoptive parents and commissioning parents are entitled to is certainly laudable. However, overlooking the very real need for women who give birth to recover from childbirth, while simultaneously denying them unburdened time, beyond the first six weeks of recovery, to bond with their child sets a dangerous precedent.

The purpose of parental leave, in the case of adoptive and commissioning parents, is to allow the parents time to nurture their child. Holding that a woman can simply “[nurture] her child in parallel” amounts to a facile analysis of the rigours of birth and the energy expended in recovering from it. The judgment espouses concerns regarding the “extreme exhaustion [and] sacrifice of sleep” of the birth mother and yet does not take into account the practical reality that a birth mother who returns to work will still bear a large part of this burden, no matter how supportive her partner, merely by dint of her role in nursing the child. To conflate the situation of a woman who give birth to an adoptive or commissioning parent is to ignore contextual factors and to prejudice the position of a birth mother in favour of giving the father more rights. It would be possible for the Constitution to “equalise up” and improve the position to benefit all.

The Constitutional Court will certainly have many issues to consider, once the matter reaches it for potential confirmation of the declaration of invalidity. Should the Constitutional Court confirm the invalidity of the current provisions, existing workplace parental leave policies may need to be adjusted to reflect these changes.

[1] 2024 (1) SA 545 (GJ)

[2] As found in Harksen v Lane 1998 (1) SA 300 (CC).

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